Orissa High Court
Subash Chandra Panda And 3 Ors. vs State Of Orissa on 4 July, 2001
Equivalent citations: 2001CRILJ4108, 2001(II)OLR171
Author: B.P. Das
Bench: B.P. Das, M. Papanna
JUDGMENT B.P. Das, J.
1. Four condemned accused (hereinafter referred to as 'the appellants') have preferred the present Criminal Appeal challenging the judgment passed by the learned Additional Sessions Judge, Malkangiri, in S.C.No.71 of 1999 convicting them for committing a heinous and shocking cold blooded murder of an innocent kid of four years' old after kidnapping him and screening the evidence of murder in furtherance of their common intention punishable under Sections 364, 302 and 201 read with Section 34 of the Indian Penal Code ( for short 'the I.P.C.) and sentencing them to capital punishment and referring the same to this Court for confirmation as required under Section 366 of the Code of Criminal procedure (for short 'the Cr.P.C.'. Thus the Criminal Appeal as well as the Death Reference having given rise to common question of fact and law were heard analogously and are being disposed of by this common judgment.
2. Concisely put, case of the prosecution is that after Ranjeet Mohanty @ Rana (hereinafter referred to as 'the deceased) was found missing from the village street of Balimela on 30.4.1997 at about 10 A.M., his uncle, Chita Ranjan Mohanty (the informant), and others searched for him but in vain for which a missing report was lodged in Orkel police station on the following afternoon. In the early morning of 1.5.1997 white the informant was going towards the pond in the backyard of his house to attend call of nature, he found a person coming towards the pond carrying something on his shoulder. When the said man came nearer, the informant identified him to be the appellant-Narayan Mazumdar, who was throwing a dead body by the side of the pond. At that juncture, the informant caught hold of him and raised hallah, hearing which people from the neighbourhood gathered there and found that the dead body thrown by Narayan Mazumdar was that of the deceased, who was missing since one day, on being asked, the appellant-Narayan Mazumdar disclosed that he along had not murdered the child, some others also were involved in the complicity of the felony and he was ready to disclose their names and identify them. Accordingly, the appellant Narayan Mazumdar led the informant and others to the house of the appellant Kunja Ramana, who along with his servants, seeing Narayan Mazumdar in the company of informant and others abused them and threatened them to assault holding axe and lathis. So, the informant and others returned to the village but they along with some more villagers again proceeded to the house of the appellant Kunja Ramana. On the arrival at the house of Kunja Ramana, they found the nails and the hair clippings of the deceased there. The appellant-Narayan Mazumdar also disclosed that in the said place the nails, hairs and tongue of the deceased were cut and Simachal Padhi, a Tantrik offered the prayer. It was also disclosed by him that after the puja, the deceased was taken in a jeep to the house of the appellant Subash Panda where the appellants and Simachal Padhi killed him throttling his neck and catching hold of his hands and legs. He also revealed that Simachal Padhi, Kunja Ramana and Subash Panda promised him to pay Rs. 25,000/- for disposal of the dead body. After Narayan Mazumdar made the extra-judicial confession as above, to the villagers, the latter along with the appellant-Narayan Mazumdar went to Subash Panda's house where they found the other appellants and also the Tantrik-Simachal Padhi, who, on being asked, told that he sacrificed the deceased to whom he could give" Jeevan Daan" within three hours. Thereafter with the dead body of the deceased all of them came to the house of the informant where the Tantrik performed puja. But having failed to give "Jeevan Daan" to the deceased, he tried to flee away from the said house. At that juncture the informant and others caught hold of the Tantrik, who was then handed over to the police. Accordingly, an information under Ext. 1 was lodged in Orkel Police Station by the informant. During investigation, inquest over the dead-body was held and an inquest report under Ext. 2 was prepared. Then for post-mortem examination, the dead-body was sent to the doctor who in his turn submitted the post-mortem report under Ext.6. The Investigating officer examined the witnesses, made seizure of incriminating articles and on completion of investigation, he laid charge-sheet against the appellants and other absconded accused. As the accused Tantrik Simachal Padhi was done to death, as we are told at the Bar, the case of the appellants was split up and they were put upon trial before the learned trial judge ultimately.
3. The accused persons who pleaded innocence have taken the plea of complete denial of the allegations levelled against them and also their false implication in this case under Sections 364 , 302 and 201 read with Section 34, I.P.C..
4. Prosecution examined as many as 15 witnesses, P.Ws. 1, 2, 3, 4, 6, 7 and 10 are not only the witnesses to the alleged recovery of the dead-body of the child but also they are the persons to whom extra-judicial confession was made by the accused -Narayan Mazumdar. P.W.5 is a witness to the kidnapping of the boy. P.W. 8 is a witness to the seizure of one razor, match-box, one tin, one earthen pot and other incriminating articles. P.W. 9 is a witness to the inquest. P.W. 11 is a witness to the seizure of the jeep. P.W. 12 is the police havildar, who produced the wearing apparels of the deceased, at the time of seizure. P.W. 13 is the doctor who conducted the post-mortem examination. P.W. 14 is an eye witness to the occurrence. P.W. 15 is the investigating officer.
Prosecution also exhibited several documents which were marked as Exts. 1 to 18 and produced number of material objects.
Defence examined three witnesses in support of the stand taken by the accused,
5. After conclusion of the trial, the trial court believed the prosecution case by coming to a conclusion that charges against the appellants have been established and convicted them accordingly and sentenced them to be hanged till death subject to confirmation by this Court.
6. Learned counsel for the appellants while assailing the judgment of the trial court and order of conviction strenuously argued that the evidence of P.W. 14 is basically the evidence of an accomplice and it cannot form the basis of conviction unless corroborated in material particulars which are signally lacking in this case. Besides, his evidence being not clear, cogent, trustworthy and being of an interested person with full of material contradictions and improbabilities, it would not be safe on the part of this court to uphold the conviction. Further, the learned counsel submitted that bereft of the tainted version of P.W.14, the prosecution has no evidence in the eye of law warranting a conviction under Sections 302 and 201 read with Section 34, I.P.C as the prosecution has failed to link the chain of circumstances mitigating against the hypothesis of innocence of the appellants. Learned counsel for the appellants further urged that the sentence of capital punishment passed by the trial court is wholly unwarranted, illegal and disproportionate and the same has been passed mechanically without considering the mitigating circumstances in respect of the appellants. He also urged that the case does not fall within the scope and ambit of rarest of rare cases to impose the maximum punishment. Hence, he submitted that the appeal needs to be allowed and the death reference should be rejected.
7. Learned counsel for the State while supporting the judgment and order of conviction refuted the aforesaid argument of the learned defence counsel and submitted that the judgment and order of conviction passed by the trial court is well founded. He urged that the evidence of P.W. 14 cannot be equated with that of an accomplice as he was not willing to participate in the crime. On the contrary , being a servant of the appellant Subash Panda for five years, he is a victim of circumstances and has acted according to the advice and direction of his master, perhaps more so under the threat of death. Besides, his evidence being clear, cogent, trustworthy, the trial court has rightly relied upon the eye witness version. Learned state counsel further submitted that the confession of the co-accussed, the evidence of P.W.5-Tankadhar Behera regarding removal of the deceased boy in the jeep driven by the appellant -Kunja Ramana, recovery of the Puja materials from the field of the appellant- Subash Panda and the undisputed evidence of P.W. 13, the doctor, that the deceased died homicidal death due to asphyxia occasioned due to strangulation, lend support to the evidence of P.W.14. Hence, the order of conviction recorded by the trial court is well founded and needs no interference by this court. Learned counsel further urged that since this is cold-blooded ghastly murder of an innocent kid of four years by kidnapping him to satisfy the lust for the 'golden pot' by the persons sufficiently exposed to the modern society, this comes sufficiently under the definition of rarest of rare cases. Hence, the extreme penalty of death sentence awarded to the appellants by the trial court is perfectly justified and needs confirmation by this court as the same is the expectation of collective conscience of the society. He further submitted that the question raised before this court in regard to the sentence was argued before the trial court and there is no infirmity in the order awarding capital punishment on the appellants by the trial court and accordingly the same requires no interference by this Court. As such, the death reference ought to be confirmed and the appeal by the appellants being devoid of merit should be dismissed.
8. While examining the rival contentions raised at the Bar, a detailed scrutiny of the evidence is necessary in order to arrive at a decision regarding the correctness or otherwise of the judgment of the trial court.
9. The medical evidence is adduced by the prosecution through P.W.13-Dr Golakha Bihari Paikray, who conducted the autopsy over the dead-body and found the following injuries on the deceased, which according to him, are antemortem in nature :
"EXTERNAL INJURY:
Face and neck were swallon and cyanosed eyes prominent and opened with conjetive (sic.) congested and pupil diluted. Tongue protruded and congested a bite mark Frank blood from nostrils. Post mortem marbling and blisters over back and chest; INTERNAL INJURY:
On dissection of the neck subcutaneous ecymoses and laceration of muscles found, trachea and larynx congested with mucus, abdominal viscera congested spleen is contused, stomach empty lungs are marked congested with petchy hemorrhages, cutting the lungs frank blood comes out; Both chambers of heart are empty."
The doctor opined that the deceased's death is homicidal within 24 hours of post mortem due to asphyxia on account of strangulation . The aforesaid evidence of P.W. 13 has not been seriously disputed by the appellants. The evidence of the doctor has also been corroborated by the post-mortem report (Ext. 6). The probative materials relied on by the prosecution in this case, apart from the medical evidence of P.W.13 , are basically (i) the eye-witness version of P.W. 14 (ii) the detection of appellant -Narayan Mazumdar while he was disposing of the dead-body in the pond in the backyard of the house of the informant, (iii) the extra-judicial confession of the appellant-Narayan Mazumdar, (iv) recovery of Puja materials from the field of appellant-Subash Panda, (v) Kidnapping of the deceased and his removal and (vi) motive.
10. The eye-witness to the occurrence is P.W. 14, who has witnessed the occurrence by accompanying the appellants from the house of subash Panda till they returned from the field in the night of occurrence. The said witness has also stated about the happenings of the preceding night of occurrence. P.W.14 deposed that he was working in the hotel of Subash Panda for the last live years preceding the date of occurrence. He was asked to accompany the appellant-Subash panda and Simachal Padhi, who had come to Subash Panda on different occasions, to the field of Subash Panda, during the night, where when the Puja was performed in the pit dug at the instruction of Subash Panda. The witness further disclosed that on the Sunday night preceding the date of occurrence, Subash Panda, the Tantrik Simachal Padhi and Narayan Mazumdar had been to the spot where P.W.14 was asked to kill a black cock in the pit; the puja was performed and the Tantrik Simachal Padhi had become unconscious and, after a while, he disclosed that "Golden Pot" will not be available on that day. Thereafter they returned and on the next day, the Tantrik Simachal Padhi went to Aska and returned on the Wednesday on which day the boy was missing. Thereafter P.W.14 was called to the house of Subash Panda at about 7 P.M. There a boy was brought by appellant- Narayan Mazumdar being covered with a cloth, appellant-Kalpana Mazumdar caught the boy and directed P.W. 14 to sit on the jeep brought by Kunja Ramana. Thereafter Subash Panda, Simachal Padhi and P.W.14 sat on the jeep and they all went to the house of kunja Ramana in village Nilakamari where puja was performed and P.W.14 was threatened to be killed if he disclosed the same to any body. Thereafter, Chita Mohanty (P.W.7), the informant, came to the house of Kunja Ramana to enquire about the witchcraft but being told by Kunja Ramana that no witchcraft was there, he went away. On the fateful mid-night, appellants-Subash Panda and Kunja Ramana, Simachal Padhi and P.W.14 went in the jeep to the field of Subash Panda where a pit was dug and the witness was asked to guard whether any body is coming and he was handed over torchlight. There the appellant-Kalpana caught the leg of the child, Subash Panda pressed his belly, kunja Ramana caught his chest and Narayan caught hold of his neck and the child was done to death within a while; while Simachal Padhi was doing Mantra Path. After the aforesaid occurrence, all of them came back in the jeep and the aforesaid witness got down from the jeep near the Akhandalmani Temple. Subash Panda also got down there. Thereafter hearing that the dead-body of the boy was recovered, out of fear P.W.14 went away to his village and then had gone from place to place on the direction of his master-subash Panda. The witness stated to have seen the occurrence in detail regarding the Puja performed in the house of Kunja Ramana and in the pit prepared earlier in the field of Subash Panda, The role played by the appellants and Simachal Padhi and the role played by the witness himself during the occurrence was vividly narrated by P.W.14 in his deposition. Besides, this witness has also stated about the occurrence in the previous nights preceding the date of occurrence and the way and the manner in which he was called by his employer and others including the Tantrik Simachal Padhi and the appellant- Narayan Mazumdar and the sacrifice of a black cock in the pit by him in pursuance of the direction of the appellant- Subash Panda. He has also stated that on the particular night the Tantrik expressed that the golden pot would not be available. His evidence further reveals that on the date of occurrence on the threat of death, he was asked not to disclose the same to anybody else.
The second probative evidence is that in the early morning of 1.5.1997, P.W.7, who is the informant and the maternal uncle of the deceased, detected the appellant-Narayan Mazumdar while he was disposing of the dead-body of the deceased in the pond situated at the backyard of the house of the informant. When a hallah was raised by the informant-P.W.7, P.W.1 -Bichitra Ranjan Mohanty. P.W.3-Adilya Mohanty and P.W.6-Gyanranjan Mohanty, who are brothers of P.W.7 and the maternal uncle of the deceased, P.W.4-Maheswar Behera and P.W.2-Pradeep Sabat stated to have gone to the pond and had seen the dead body of the deceased lying on the ridge of the pond and the appellant Narayan Mazumdar being caught by P.W.7.
The next circumstance is regarding extra-judicial confession made by the appellant-co-accused Narayan Mazumdar before P.W.7, who stated that when he caught hold of Narayan mazumdar and raised hallah and found the dead-body of his nephew, Narayan Mazumdar disclosed the truth stating that he was not alone, but Subash Panda, Kunja Ramana, Simachal Padhi, Kalpana Mazumdar and Sabita Kar, wife of Subash Panda, were also the persons, who participated in the commission of the aforesaid offence of killing the boy with a motive that Kunja Ramana would be blessed with a son and Subash Panda would get a golden pot. P.W.6 has stated that Narayan Mazumdar confessed to have killed the boy-Ranjit along with Kunja Ramana, Subash Panda, Kalpana Mazumdar and Simachal Padhi. They have killed the boy to get a golden pot and a son for Kunja Ramana. P.W.3 has stated that in the house of Kunja Ramana, Narayan Mazumdar told that he, Kunja Ramana, Subash Panda, Simanchal Padhi and Kalpana Mazumdar killed the boy. The version of P.W.1 is that Narayan Mazumdar requested them not to assault him and narrated the circumstances in which the accused kidnapped the boy and ultimately killed him. P.W.5 deposed to have heard the crying sound coming from the jeep being driven by Kunja Ramana while he (P.W.5) was going to market on 30.4.1997 at day-time and some other persons were also in the jeep. P. W.8 is a witness to the seizure of the Puja materials form the pit dug on the land of the appellant Subash Panda and the blood stained earth. The evidence of P.W. 7 throws some light on the motive of the appellants. According to the evidence of P.W. 7, in order to get a golden pot and a son, the appellants Subash Panda and Kunja Ramana along with others killed the boy.
11. The learned counsel for the appellants submitted that the prosecution case is solely based on the version of the eye-witness (P.W. 14). The testimony of P.W. 14, according to the appellants, cannot be relied upon unless corroborated, as P.W. 14 is an accomplice, which can be deduced from his deposition during the trial that P.W. 14 having the knowledge that the deceased was kidnaped and having the opportunity to disclose before P.W.7, the informant, in the house of Kunja Ramana in the night of occurrence, did not disclose the same. On the contrary, he had accompanied the appellants to the alleged spot; guarded the place by holding a torch-light and thereby extended his active assistance to the commission of the crime. That apart, he has also not disclosed regarding the crime for quite some days after fleeing away from the company of the accused persons. Therefore, according to the appellants, in the eye of law P.W. 14 is an accomplice and it is the rule of law that an accomplice cannot be believed unless his version is corroborated in material particulars. Learned counsel for the State submits that in the present case the position is something different. While admitting that the evidence of an accomplice is not worthy of credence unless corroborated by material particulars, the learned state counsel seriously disputes the contention of the appellants that P.W. 14 is an accomplice.
12. The aforesaid rival contentions persuaded us to examine in the light of the various judicial pronouncements whether P. W.14 can be termed as an accomplice. If ultimately we find that P.W. 14 can be termed as an accomplice, then we have to go to the second limb of the argument whether his evidence has been duly corroborated or not.
13. Though Section 133 of the Evidence Act speaks regarding the term of an accomplice but the same has not been defined therein and as such it is presumed to have been used in its ordinary sense.
According to the Black's Law Dictionary, the word 'accomplice' signifies as follows:
"One who knowingly, voluntarily and with common intent unites with the principal offender in the commission of a crime. Smith v. State. Tenn Cr. App. 525 S.W. 2d. 674, 676; Model penal Code Section 206(3). One who is in some way concerned or associated in Commission of crime; partaker of guilt; One who aids or asstists, or is an accessory, ....."
The apex Court in R.K. Dalmia v. The Delhi Administration, AIR 1962 SC 1821, while examining who is an accomplice, observed as follows :
"An accomplice is a person who participates in the Commission of the actual crime charged against an accused.
He is to be a participes criminis. There are two Cases, however, in which a person has been held to be an accomplice even if he is not a participes criminis. Receivers of stolen property are taken to be accomplices of the thieves from whom they receive goods, on a trial for theft. Accomplices in previous similar offences committed by the accused on trial are deemed to be accomplices in the offence for which the accused is on trial, when evidence of the accused having committed crimes of identical type on other occasions be admissible to prove the system and intent of the accused in committing the offence charged : Davies v. Director of Public prosecutions, 1954 Ac 378."
In the case of Ghudo s/o Ramadhar v. Emperor, AIR (32) 1945 Nagpur 143, reliance was placed on a decision of the Madras High Court in Ramaswami Gounden v. Emperor (04) 27 Mad. 271, wherein it was held as follows:
"the witness was not an accomplice in the crime for which the accused was charged, inasmuch as he had not been concerned in the perpetration of the murder itself. Even assuming that, after the murder had been committed, the witness had assisted in removing the body to the pit, and that he could have been charged with concealment of the body under Section 201, Penal Code, that was an offence perfectly independent of the murder, and the witness could not rightly be held to be either a guilty associate with the accused in the crime of murder, or liable to be indicated with him jointly. The witness was therefore not an accomplice and the rule of practice as to corroboration had no application to the case."
Further reliance was placed on a decision reported in Hafijuddi V. Emperor, ('34) 21 AIR 1934 Cal. 678 wherein a Special Bench made the following observations :
"So far as the statutory provisions are concerned, there is nothing in law to justify the proposition that evidence of a witness, who happens to be conversant of a crime, or who made no attempt to prevent it, or who did not disclose its commission, should only be relied on to the same extent as that of an accomplice. The real question in such a case is the degree of credit to be attached to the testimony of such a witness and that depends on all the facts and circumstances of the particular case; it may not be possible to place much reliance on the evidence coming from persons falling within the description given above, but they are not accomplices and it leads to confusion of thought to treat them as 'Practically accomplices' and then apply the rule as to their credibility, instead of judging their credibility on a careful consideration of all the particular facts of the case affecting the evidence."
Reliance can also be placed on the decision in Srinivas Mall Bairoliya v. Emperor, AIR (34) 1947 PC 135, wherein it was held as follows :
".....No doubt the evidence of accomplices ought as a rule to be regarded with suspicion. The degree of suspicion which will attach to it must however vary according to the extent and nature of the complicity; sometimes, as said by Sir John Beaumont, C.J. in Kamal Khan v. Emperor, ('35) 59 Bom. 486, the accomplice is not a willing participant in the offence but a victim of it'. There is ground for saying that the accomplices in this case acted under a form of pressure which it would have required some firmness to resist."
Now in the case at hand P.W. 14 was a servant of the appellant-Subash Panda. A futile attempt was made by the defence to prove that P.W. 14 was not the servant of Subash Panda, but in the 313, Cr. P.C. Statement said Subash Panda has admitted that P.W. 14 was working under him as a servant at the time of occurrence. P.W. 14 being a mute spectator only proceeded to the spot and, therefore, he cannot be treated as an accomplice since he has neither the mens rea nor he has participated in the crime. Learned counsel for the appellants cited a decision reported in AIR 1957 Orissa 260 (Bihari Mandal v. State) in support of his stand wherein a learned Single Judge observed :-
".... A person who is present at the commission of the crime and who is interested in not disclosing the commission of the crime is, in my view, a person who is in the position of an accomplice."
Relying on the aforesaid decision, the learned counsel for the appellants tried to persuade us to believe that P.W. 14 did not disclose the incident though he had the opportunity to disclose the same and, therefore, he cannot be better than an accomplice. The aforesaid decision will not be of any help to the counsel for the appellants in as much as in that case it was held that if the witness is interested not to disclose the commission of the crime, then he can be termed as an accomplice. But in the present case, P.W. 14 had volunteered to disclose the commission of the crime after some days and the reason for the delay was duly explained by him. Hence, we do not find any force in the argument of the learned counsel for the appellants that P.W. 14 is an accomplice.
Learned counsel for the appellants has drawn our attention to a decision of the apex Court in Mohd. Hussain Umar Kochra etc. v. K.S. Dalipsinghji, AIR 1970 SC 45, and tried to impress that since P.W.14 has participated in the crime knowingly that the same is illegal, he is an accomplice. We are unable to agree with the aforesaid contention of the learned counsel for the appellants as the decision cited by him is a case where the witness knowing fully well that the gold is a smuggled one and produced in an unusual hour in secret for an unusual remuneration, and knowingly that the gold was being melted to eliminate the evidence for no reason, he was termed as an accomplice. In the present case, P.W. 14 is a rustic villager belonging to a labour class and he acted according to the advice of his master under threat of death. This witness went with the accused persons and did not disclose the incident. For quite some time and thereafter went to his village and ultimately disclosed the same to the informent as well as to the police and before the Magistrate. In these circumstances, he can never be called as an active participant in the crime. Hence, in our considered opinion, he cannot be termed as an accomplice.
The contention of the learned counsel for the appellants that P. W. 14 is an accomplice does not hold good in the facts and circumstances of the case and accordingly the same stands rejected.
Learned counsel for the appellants further urged before us that even though P.W. 14 cannot be termed as an accomplice, his version cannot be accepted to be reliable as he has given contradictory statements which are not clear, cogent and trustworthy. P.W. 14 has developed a version subsequently to suit the prosecution case. What he has stated before the Magistrate under Section 164, Cr.P.C. as well as under Section 161, Cr.P.C. before the police is materially contradictory to his deposition before the court. Hence, he cannot be said to be a trustworthy witness. Besides, he for having told that he was asked to guard with torch- light to notice anybody coming, virtually had no scope to notice the specific part played by the appellants and the mode of assault as described in his evidence. Again, his evidence regarding the cutting of tongue of the deceased is not supported by the medical evidence. That apart, the specific role said to have been played by the appellants on the spot being contrary to his evidence in the court, he cannot be regarded as a truthful witness. According to the appellants, P.W. 14 is a liar deposing at the instance of the informant, who is also his master and interested in the case. He is a got up witness and described his version to feed fat the prosecution case which can be deduced from the fact that he had come to the court without even receiving summons.
We are unable to accept the aforesaid contention of the appellants because there in no evidence on record to show that P.W.14 is an interested witness. The attempt made by the appellants to prove that P.W. 14 was an employee working under the informant has failed in as much as, as stated earlier, the accused- Subash Panda has himself stated in his statement under Section 313, Cr.P.C. that P.W.14 was working under him. The defence version that P.W. 14 was working under the brother of the informant has not been proved. The submission of the learned counsel for the appellants in terming P.W. 14 as an interested witness as he appeared before the court without receiving summons is not acceptable. Appearance of P.W.14 before the court to depose in the absence of a summons cannot make him an interested witness because it is common knowledge that relations of a victim normally leave no stone untorned and see that the trial is completed as early as possible and the case reaches its logical conclusion. When a witness is summoned and the case is posted for his examination, if the witness comes on his own in the absence of a summons knowing from the informant that a date has been fixed and deposes before the court, he cannot be said to be an interested witness, rather it is not uncommon on the part of the rustic village witnesses to come to court on being informed without receipt of summons on an apprehension lest the Court may take coercive measures to secure their attendance. For the aforesaid reason, we are unable to accept the submission of the learned counsel for the appellants that P.W.14 is as interested witness and has deposed falsely at the instance of the informant. Besides, law is well settled that interestedness does not make the version of a prosecution witness untrustworthy. There cannot be a universal rule that all independent witness necessarily tell the truth and all interested witnesses versions are false.
14. The next contention of the learned counsel for the appellants is that the version of the witnesses having been recorded by the magistrate under Section 164, Cr.P.C., their evidence would be appreciated with much circumspection. In this connection, our attention was drawn to a decision of the apex Court in Balak Ram v. State of U.P., AIR 1974 SC 2165. Though we entirely agree with the position of law enunciated in the aforesaid case regarding appreciation of evidence of a witness when his statement has been recorded under Section 164, Cr.P.C. but in the present case, we find no attempt has been made by the defence during the trial to bring the contradictions, as alleged, on record.
15. Now coming to the infirmity in the version of P.W. 14, learned counsel for the appellants has taken us to his statement regarding cutting of the tongue, taking the child to the house of Subash Panda and the role played by the appellants at the spot when the occurrence took place. According to the learned counsel, this story is absolutely unbelievable and added to it, the version of P.W.14 in the court and his statement recorded under Section 164, Cr.P.C. are quite different. After scanning the evidence of P.W. 14 as well as his statement under Section 164, Cr.P.C. the contradictions as indicated by the appellants are absolutely not material. This sort of contradiction is bound to occur. In this connection, we are reminded of a decision of the apex Court in Shivaji Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2666, wherein it was observed thus:
"13. Some attempt was made to show that the many injuries found on the person of the deceased and the manner of their infliction as deposed to by the eye-witnesses do not tally. There is no doubt that substantially the wounds and the weapons and the manner of causation run congruous. Photographic picturisation of blows and kicks and hits and strikes in an attack cannot be expected from witnesses who are not fabricated and little turns on indifferent incompatibilities. Efforts to harmonise humdrum details betray police tutoring, not rugged truthfulness."
Learned counsel for the appellants also submitted that the version of P.W. 14 is absolutely not believable because, as per his own statement, he was asked to guard the spot with a torch- light and, therefore, he had basically no scope to witness the occurrence, let alone his vivid description. This argument failed to persuade us to disbelieve the evidence of P.W. 14 since, according to the said witness, he was very much present there. It cannot be said that he had not noticed the occurrence which was taking place near him when he was focussing the torch-light. There is nothing in his evidence to show that P.W. 14 was at such a place that it was not possible on his part to witness the occurrence. That apart, an earthen 'Dipa' (lit) along with some other puja materials was recovered from the spot where puja was being performed on that day to the witnessing of the occurrence by P.W. 14 through the light of the 'Dipa' (lit) cannot be ruled out.
16. A futile attempt was made during the course of cross-examination of P.W.14 regarding the presence of the witness near the jeep. P.W.14 negatived the suggestion put to him that he had stated before the police that he was focussing the torch-light near the jeep. It is well settled that while appreciating the evidence of a witness it is the duty of the court to separate the grain from the chaff and to see that the prosecution has proved the case beyond all reasonable doubts. The apex court in the case of Uqar Ahir v. State of Bihar, AIR 1965 SC 277, on the aforesaid aspect observed as follows :
"6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing ) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum if the prosecution case or the materials parts of the evidence and reconstruct a story of its own out of the rest......"
Here is a case where, in our considered opinion, neither P.W.14 can be described as an accomplice nor he can be termed as an interested witness. He is a trustworthy witness and the veracity of his testimony remained unshattered even during the whole course of cross-examination which he withstood bravely and the mere discrepancies and contradictions in his evidence do not mean that the entire evidence of the prosecution has to be discarded. The medical evidence and the evidence of other witnesses also corroborate the story advanced by P. W. 14 as well as the circumstances in which the aforesaid occurrence took place.
17. So, on evaluation of the evidence and the entire materials on record, the irresistible conclusion is that the victim boy Ranjit met a homicidal death and the condemned prisoners, the present appellants, are the perpetrators of the heinous crime.
18. Now the question arises whether the aforesaid occurrence comes within the ambit of rarest of rare cases and warrants the extreme penalty known to law, namely, the sentence of death. Learned counsel for the State submits that there was premeditation before committing one aforesaid crime. The motive is apparent as in order to get a son and a golden pot, the condemned prisoners took the advantage of the innocence of the victim boy. This is a gruesome murder committed for gain and in such an exceptional case only capital punishment and none else would meet the ends of justice. On the other hand, Shri Sarangi, learned counsel for the appellants, submits that it is not a case which warrants death penalty.
According to him, the crime, such as murder, by nature is gruesome and that per se does not justify the death penalty. Life imprisonment is rule but death is an exception. In this regard, our attention is drawn to Sub-section (2) of Section 235 of the Cr.P.C. and it is submitted that the accused had not been heard on the question of sentence and the trial court made no attempt to elicit any material to get the evidence and impose the extreme penalty. Learned counsel for the appellants further submits that under Section 354(3), Cr.P.C. the court is bound to state the reasons for the sentence awarded and in case of sentence of death, special reasons for awarding such sentence should be recorded. According to the learned counsel, no such special reason has been recorded by the trial court while awarding the death sentence. This submission of the learned counsel persuaded us to have a second look to the judgment of the trial court so far as it relates to sentence part.
19. We find that the hearing on the question of sentence was done on the date of conviction. The reason for awarding the death sentence was that the case is a rarest of rare cases for which reliance was placed by the trial court on a decision of the Apex Court in Molai v. State of M.P., O.C.R. 2000 (S.C) 53.
This Court in the case State of v. Subash Joshi. (1993) 7 O.C.R. 55, held that there was no illegality in hearing the convict on the question of sentence on the date of conviction and in passing the death sentence. This cannot be held to be an irregularity in the procedure. So, the argument advanced by the learned counsel for the appellants that the action of the trial court is hearing and awarding the death sentence on the date of conviction is bad absolutely does not hold good. Learned counsel in course of his argument pressed into service a decision of the Apex Court in Bachan Singh v. State of punjab, etc. etc., AIR 1980 S.C. 898, and submitted that all murders are cruel, but such cruelty may vary in its degree of culpability : and it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. This case will not in any way come to the help of the appellants because of the simple reason that in the case at hand a child was killed. A defenceless and innocent life was nipped at the bud in a gruesome manner only to satisfy the greed of the killers at the instance of a Tantrik to get a son and a golden pot. It is not a case where the child was taken and immediately done to death. The child after being kidnapped was first taken to the house of Kunja Ramana where a puja was performed and the mother and the uncle of the child came in search of the child to the house of Kunja Ramana when both Kunja Ramana and the Tantrik-Simachal padhi told that they would get their child very soon. Believing them, the mother and the uncle of the child returned. At that point of time, as per the evidence of P.W.14, the child was alive and if good sense would have prevailed upon the convicts, the child could have survived. But this aspect transpires the premeditation of the convicts to kill the child any how in order to be enriched. The search by the mother for her child from door to door did not even deter the convicts from taking the child from the house of Kunja Ramana to the field of Subash Panda to kill the child. Reliance was placed on a decision of the Apex Court in State of Maharashtra v. Damu Gopinath Shinde, AIR 2000 S.C. 1691, wherein it was observed thus :-
"..... Looking at the horrendous acts committed by the accused, it can doubtlessly be said that this is an extremely rare case. Nonetheless, a factor which looms large in this case is that the looms accused genuinely believed that a hidden treasure trove could be winched to the surface by infantile sacrifice ceremoniously performed. It is germane to note that none of the children were abducted or killed for ransom or for vengeance or for committing robbery. It was due to utter ignorance that these accused became so gullible to such superstitious thin thinking. Of course, such thinking was also motivated by greed for gold. Even so, we persuade ourselves to choose the normal punishment prescribed for murder as for these accused. Accordingly, while restoring the sentence passed by the trial Court in respect of other counts of offences, we order that the accused shall undergo imprisonment for life for the offence under Section 302 read with Section 34 of the I.P.C "
On the basis of the above observations, learned counsel for the appellants strenuously argued that if not an order of acquittal, but in the facts and circumstances of the case, the sentence of death can be modified to life imprisonment as this case does not fall within the category of "rarest of rare cases". In our view, the case at hand is quite different. In the case cited above, the children got no chance to escape. But here is a case where the convicts could have spared the child when the child was in the house of Kunja Ramana and the mother was searching for her child and went to the house of Kunja Ramana where the puja was being performed. Therefore, the facts of this case cannot be equated with those of the case cited above. In this regard our attention was also drawn to a decision of the Apex Court in flam Deo Chauhan v. State of Assam, 2000 (5) Supreme Today 312, wherein it was observed that :
"Commission of the crime in a brutal manner or on a helpless child or the woman or the like were held to be such circumstances which justify the imposition of maximum penalty....."
The case at hand falls squarely within the ratio of the aforesaid decision. In the case of Magahar Singh v. State of Punjab, 1975 (4) SCC 234, the apex Court help that" for preplanned cold blooded murder death sentence is proper". In the present case it is a preplanned cold blooded murder of a helpless child and has been committed in a most brutal manner with severe cruelty over a small boy, who was innocent enough to fall in the trap of the convicts and to go with them. In our opinion, the facts and circumstances of this case justify the extreme penalty provided under Section 302, I.P.C. The accused persons seem to be menace to the society and, in our view, sentence of life imprisonment would altogether be inadequate because the crime is so brutal and diabolical as to shock the collective conscience of the community. Extreme penalty, in our view, is necessary in such cases to protect the community and to deter others from committing such crime.
20. So far as appellant-Kalpana Mazumdar is concerned, a report has come from the learned Sessions Judge, Koraput, that she was pregnant during her custody in the jail. An affidavit has also been filed by the Superintendent of Jail that Kalpana was pregnant and in course of the 'Bearing of the matter when the matter was listed under the heading To be mentioned, learned counsel for the appellants Shri Sarangi Submitted that in the meantime Kalpana has given birth to a male child. In the aforesaid mitigating circumstances, she needs some sympathy, as submitted by the learned counsel. In this connection, we may refer to the decision in State of Tamil Nadu v. Nalini, etc. etc., AIR 1999 SC 2640, and on comparing the mitigating with aggravated circumstances, we are of the view that in the present case the aggravating circumstances are so overwhelming that no sympathy should be shown to the appellant-Kalpana who being a lady most heinous " made a mother childless by killing her son. We may quote here the relevant observations made by the Apex Court in the aforesaid case :-
"628. It is not that Nalini (A-1) did not understand the nature of the crime and her participation. She was a willing party to the crime. We have to see both the crime and the criminal. Nalini (A-1) in her association with Murugan (A-3) and others developed great hatred towards Rajiv Gandhi and wanted to have a revenge. Merely because Nalini (A-1) is a woman and a mother of the child who was born while she was in custody cannot be the ground not to award the extreme penalty to her..."
21. In view of the discussions made above, there is no merits in the Criminal Appeal which is accordingly dismissed by upholding the conviction and sentence of death awarded by the learned Addl. Sessions Judge to the appellants. Consequently the reference made by the learned Addl. Sessions Judge is confirmed.
22. Before parting with the case, we record our deep appreciation of Shri Debasis Sarangi appearing for the appellants and of Shri P.K. Mohanty, learned counsel appearing for the State, for their assistance rendered to us in disposal of the present case.
M. Papanna, J.
1. I agree.
23. Conviction and sentence affirmed; Appeal dismissed.