Orissa High Court
Santha Charan Pattnaik vs State Of Odisha on 21 April, 2020
Equivalent citations: AIRONLINE 2020 ORI 78
Author: C. R. Dash
Bench: C. R. Dash
ORISSA HIGH COURT, CUTTACK.
Criminal Appeal No.484 of 2010
Arising out of the judgment of conviction dated 27.07.2010 and order of sentence dated
02.08.2010 passed by Shri M.K. Panda, learned Sessions Judge, Ganjam-Gajapati at
Berhampur in S.T. No.36 of 2009.
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Santha Charan Pattnaik ... Appellant
Versus
State of Odisha ... Respondent
For Appellant : Mr. Devashis Panda and
Mr.Sudipto Panda, Advocates.
For Respondent : Mrs. Saswata Pattnaik,
Additional Government Advocate.
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P R E S E N T :-
THE HONOURABLE SHRI JUSTICE C. R. DASH
AND
THE HON'BLE SHRI JUSTICE S. K. PANIGRAHI
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Date of Judgment : 21.04.2020
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C.R. Dash, J. Convict is the Appellant. He was convicted for the offences under
Sections 302/376, I.P.C. and was sentenced to suffer imprisonment for life and
R.I. for seven years with fine of Rs.10,000/- (ten thousand), in default, to suffer
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further R.I. for two years respectively with a direction for both the sentences to
run concurrently. Hence this Appeal.
2. It happened on 30.09.2008. The spot is the Government Prakalpa
(Project) U.P. School at village Nimina under Polasara Police Station in the
district of Ganjam. A girl student of Class-VII of that school, aged about 12
years, was seen lying unconscious in the Girls' Urinal by two girl students,
namely Kumari Tapaswini Sahu (P.W.7) and Kumari Nandini Behera (P.W.16)
when they had gone there to attend the call of nature. They found marks of
injuries on her face and neck. It was about 11.30 A.M. then. Both of them
immediately rushed to the Headmaster (P.W.10) of the school to report about
the incident. There was hue and cry in the school. The body of the girl was
brought to the school verandah for first aid nursing.
Some students of the school informed the matter in the house of
the victim girl, before Smt. Sanjukta Sahu (P.W.8), the mother of the victim girl.
The girl's father namely Biranchi Narayan Sahu (P.W.1), who had gone to the
house of one Lingaraj Sahu (P.W.29) to work as a Mason, also got information
about the incident and rushed to the school along with said Lingaraj Sahu
(P.W.29) and his son Mrutyunjay Sahu (P.W.2). By that time some villagers had
already arrived at the spot. All of them decided to take the girl to the hospital,
but later on they decided to take the body of the girl to her house. Ram Chandra
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Sahu (P.W.4), who is agnatic brother of P.W.1, put the unconscious body of the
girl on his shoulder and took her to her house followed by the villagers and other
teachers of the school.
In her house, her mother (P.W.8) when lifted the frock worn by the
girl, found her panty to be stained with profuse bleeding. The villagers present
there also felt that there was no life in the body of the girl. Again they brought
the body of the girl to the school verandah. By that time some more villagers
had already gathered at the spot (school). They manhandled the male teachers
of the school present on that day, namely the Appellant - Santha Charan
Pattnaik, Headmaster Biswanath Gouda (P.W.10) and Asst. Teacher Durga
Prasad Sahu (P.W.11). As the Headmaster (P.W.10) had already telephoned
the B.D.O., Polasara, police arrived at the spot in the afternoon. Police team
rescued the teachers from the hands of the villagers.
P.W.1, the father of the deceased lodged F.I.R. suspecting the
Assistant Teacher Durga Prasad Sahu (P.W.11) to be the perpetrator of the
crime, as said Durga Prasad Sahu had passed lewd comments with sexual
overtures against the deceased girl six months back.
The Police took up investigation immediately, visited the spot,
examined some witnesses and took all the male teachers of the school to the
Police Station along with them for interrogation.
4
On 03.10.2008, between 8.00 P.M. to 10.00 P.M. the Appellant is
alleged to have confessed his guilt before the Police while he was in the Hazat
of the Police, in presence of some witnesses. Accordingly investigation was
taken up with the Appellant to be the main culprit and perpetrator of the crime.
The Appellant along with two other male teachers, i.e. P.Ws.10 and 11 were
sent for medical examination, the dead body was challaned to the M.K.C.G.
Medical College & Hospital, Berhampur for Post-Mortem. Different incriminating
seizures were made and witnesses were examined in course of the
investigation. On completion of investigation, charge-sheet was filed against the
Appellant under Sections 376/302, I.P.C. citing the Assistant Teacher Durga
Prasad Sahu as a witness, though F.I.R. was lodged originally against him.
3. In the trial, the accused pleaded not guilty to the charges and
claimed to be tried.
4. The prosecution, in support of the charges against the accused-
appellant, examined as many as 35 witnesses and executed a host of
documents.
5. The defence, though took the plea of denial, adduced no evidence
in substantiation of its plea.
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6. Learned Trial Court, in its judgment, has made mention about
P.W.1 - father of the deceased, P.W.8 - mother of the deceased and has
discussed the evidence of P.W.9, P.W.25, P.W.13 and P.W.33 relating to the
circumstances brought on record in evidence.
7. Learned Trial Court has relied on the following circumstances in
order to bring the charges to home against the appellant :-
(I) The Appellant was last seen together with the deceased (deposed
to by P.W.9) ;
(II) The Appellant had put on his underwear ('Chadi') on reverse side
(deposed to by P.W.25) ;
(III) The medical evidence regarding examination of the Appellant
(Ext.17) (as deposed to by P.W.13) ; And
The Post-Mortem Report (Ext.29) (as deposed to by P.W.33).
8. On discussion of the evidence on record, learned Trial Court, in
paragraph-12 of the Judgment, found thus :-
"It is striking to note that, a cumulative reading of the
evidence of P.W.9 together with the medical evidence and
non-explanation of the injuries on the person of the
deceased, I am constrained to hold that the prosecution has
consistently established the guilt of the accused, which is
inconsistent with his innocence."
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9. Before proceeding to discuss the contentions raised in the Appeal,
we feel apposite to examine the Post-Mortem Report so far as the cause of
death of the deceased is concerned. Dr. Jyotin Kumar Das (P.W.33), Professor
& H.O.D. in the Department of Forensic Medicine and Toxicology, M.K.C.G.
Medical College, Berhampur had conducted the Post-Mortem. We feel
persuaded to refer to the internal injuries only. P.W.33, on internal examination
of the body of the deceased, found the following injuries :-
(i) The skin and subcutaneous tissues of neck and adjacent upper
chest corresponding to external injuries No.(3) and (5) were found
contused with extravasations of blood. The underlying soft tissues
of the neck were found crushed and bruised with extensive
extravasations. Fracture separation of the sternum (transverse)
was made out on the upper part. The soft tissues and the muscles
covering the larynx and trachea were found crushed and lacerated
with contusion and extravasations in the sub-mucosal layer of
upper respiratory tract.
(ii) Right side pleural cavity contained about 500 Mls. of free fluid
blood with fracture of multiple ribs (3rd to 6th) along the right
anterior axillary line with contusion and laceration of corresponding
inter-costal muscles, punctured laceration in the pleural. The
corresponding right lungs reveal contusions and three numbers of
punctured lacerations corresponding to fractured ribs. The
pericardial cavity contained about 300 Mls. of fluid blood with a
punctured laceration over right ventricle of heart close to right
aetrio ventricular junction.
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(iii) The abdominal cavity contained about 500 Mls. of free fluid blood
with areas of contusion on the wall of small intestine with a rupture
laceration 2 cm x 2 cm on the ileum portion of small intestine
through which faecal matters had come out.
(iv) The undersurface of the scalp at right postero-parietal area of
head was found contused with extravasations. The skull and
meninges were found intact with thin sub-dural haemorrhage
spreading over postero parieto occipital area mostly to the left.
(v) Vulvo vaginal smears and vaginal swabs were taken and
preserved for laboratory examination. Vaginal fluid was soaked
into a gauge piece and made air dried and handed over to police
in a sealed and labeled paper envelope for further examination at
R.F.S.L. / S.F.S.L. along with nail-clippings and sample blood of
the deceased.
The aforesaid Post-Mortem examination was held by P.W.33
being assisted by Dr. Kiran Kumar Patnaik (P.W.13) and one Dr. S.N. Mohanty.
In their opinion, all the aforesaid injuries were ante-mortem in nature, caused by
hard and blunt trauma and are consistent with violence and struggle. Injuries to
genital organ were consistent with forcible sex act. The injuries on the neck and
chin could have been caused by forceful compression by hand (manual
strangulation). In their opinion, death was caused due to complications arising
out of the aforesaid multiple injuries. Further they opined that the injuries on
neck and chest were sufficient enough, in ordinary course of nature, to cause
death.
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From the aforesaid discussion, it is clear that, whoever be the
predator had dealt with the victim lustfully, mercilessly and very violently in
committing the crime. The mode and manner of assault coupled with the act of
ravishment shows that he (the predator) had come with a definite and specific
intention to deal with the victim (deceased) in the manner he dealt with.
10. Another aspect of the case on which we want to throw light is,
whereabouts of the deceased in the school, till her dead body was found in the
Girls Urinal.
P.W.8, mother of the deceased has testified that, at about 9.30
A.M. the deceased had left for school along with her friend Krishna Sahu
(P.W.24), who is also a student of Class-VII. According to Krishna Sahu
(P.W.24), the deceased and she along with others were being taught by a
private tutor namely Aswini Kumar Sahu (P.W.3). She and the deceased
returned from tuition on that day at about 9.00 A.M. On that day the deceased
asked her (P.W.24) to come early, as she wants to go to school early.
Accordingly, Krishna Sahu (P.W.24) came to the house of the deceased early
and both of them proceeded to the school together. Krishna Sahu (P.W.24) did
not see the deceased thereafter either in the prayer class of the school or in the
classroom after the prayer class was over. P.W.24 searched for the deceased,
but did not find her.
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Tapaswini Sahu (P.W.7) has testified that, she had not seen the
deceased in the prayer class, and at the time of Roll-call also she was found
absent in the class. P.W.7 and P.W.24, both have testified that the books of the
deceased were there in the classroom.
Nandini Behera (P.W.16) has also testified that, she had not found
the deceased in the school on that day and she had last seen the deceased at
9.00 A.M. when they had left their tuition for home.
P.W.9 - Pradeep Kumar Sahu in his cross-examination has also
testified that he had not seen the deceased either in the prayer class or her
going to the classroom after the prayer class was over.
Bharata Sahu (P.W.22), the Monitor of Class-VII, has also testified
that when he arrived in the school, he did not find the deceased there. He had
seen the deceased proceeding towards her house from the school at about 9.30
A.M. on the date of occurrence and thereafter till her dead body was brought to
the verandah of the school, he had not seen her.
Sagar Sahu (P.W.23), a student of Class-V, in his cross-
examination has also testified that he had not seen the deceased in the school
on the date of occurrence.
P.W.8 - the mother of the deceased has not testified that, after
leaving the house with Krishna Sahu (P.W.24) the deceased had returned to the
house from the school for any purpose.
10
P.W. 10 - Biswanath Gouda, the Headmaster of the school was
the Class Teacher of Class-VII at the relevant time. During the relevant time
there were four male teachers including the Headmaster (P.W.10) himself and
one female teacher in the school. The male teachers were namely the
Headmaster Biswanath Gouda (P.W.10), Durga Prasad Sahu (P.W.11), the
Appellant - Santha Charan Pattnaik and one Bibhuti Bhusan Panigrahi (not
examined). Bibhuti Bhusan Panigrahi was absent from the school on the date of
occurrence and the Appellant was oldest among all the teachers. He (Appellant)
was to retire from service on attaining the age of superannuation on 30.06.2009.
Bibhuti Bhusan Panigrahi was the Class Teacher of Class-VI, Durga Prasad
Sahu - P.W.11 was the Class Teacher of Class-V, Appellant - Santha Charan
Pattnaik was Class Teacher of Class -IV and Mamata Kumari Sahu (P.W.5) was
the Class Teacher of Classes - I, II, & III. All the three classes, i.e. Class - I, II
& III were being held in one room of the school at the relevant time.
P.W.10 - the Headmaster of the school has further testified that,
the deceased was absent at the time of Roll-call, for which he put a 'dot' mark
against her name (Roll No.4) in the Attendance Register. In paragraph-9 of his
cross-examination P.W.10 has further testified that, when as per the query of the
S.I. of Schools after the incident he told that the deceased was absent at the
time of Roll-call, the villagers present there had forced him to show that the
deceased was present in the class, but he did not succumb to their pressure.
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11. From the aforesaid evidence of witnesses, it is clearly established
that the whereabouts of the deceased was not known to anybody after she
reached the school along with her friend Krishna Sahu (P.W.24). There is
nothing on record to show that the deceased had returned to the house and
came late. Except P.W.9 none has testified that they saw the deceased in the
school till her dead body was recovered from the Girls' Urinal.
12. According to the Medical Officer - P.W.33, the deceased might
have died around 12 hours from the time of holding Post-Mortem Examination.
Post-Mortem examination was held at 10.00 P.M. on 30.09.2008 by virtue of the
special order of the Collector, Ganjam in view of the sensitivity attached to the
case. In his cross-examination, P.W.33 has candidly testified thus :-
"... We cannot exactly pin-point as to when exactly the
deceased died and our opinion is variable by 3 hours by
either side. When we have opined that the deceased
might have died around 12 hours from the time of our
holding the Post Mortem Examination, there is a
possibility that death might have caused between 7 A.M.
to 1 P.M. on 30.09.2008. From our observations death of
the deceased might have occurred while she was being
ravished or soon thereafter..."
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13. According to the prosecution case, the dead body was detected in
the Girls' Urinal between 11.15 to 11.30 A.M. P.W.4, who took the dead body of
the deceased on his shoulder to the house of the deceased, has testified that
there was profuse bleeding from the vagina and when he lifted her to his
shoulder, blood drops fell on the ground. P.W.8 - the mother of the deceased
testified that when she lifted her daughter's (deceased) frock, she found profuse
bleeding from the vagina of the deceased. But, strangely the I.O. during
investigation has found blood mark on the spot only, i.e. at the Girls' Urinal of the
school. He has not found blood marks either on the verandah of the school or in
the house of the deceased or in the spot near the school verandah or on the way
from the school to the house of the deceased. Such a fact shows that there has
been profuse bleeding after the occurrence, but the bleeding may not continue
for long after the death occurs. From the fact that blood soaked with clothes was
collected and seized from the Girls' Urinal only, it is to be held that by the time
the dead body of the deceased was brought to the verandah of the school, the
bleeding had already been stopped.
From such discussion, we are of the view that it is difficult to opine
and conclude when death of the deceased occurred. If the dead body was
detected soon after the incident and she was immediately brought to the
verandah of the school and she was immediately again taken to the house of the
deceased, according to us, there would have been a great possibility of bleeding
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from vagina of the deceased and also possibility of presence of blood marks in
other places, as discussed supra. But, no witness, who had seen the dead body
on the verandah of the school, have whispered a word about the factum of
ravishment or oozing of fresh blood from the vagina of the deceased, except
P.W.4, which has also been negatived by the evidence of the I.O., who has not
found any blood mark in the verandah of the school or around it and the
surrounding circumstances as discussed supra.
In view of such fact, we are constrained to conclude that the death
of the deceased might have occurred sometime after she reached school, but it
was much prior to detection of the dead body in the Girls' Urinal at about 11.15
to 11.30 A.M.
14. Another aspect of the prosecution case is the confessional
statement of the Appellant before Police. The confessional statement was
recorded at about 8.00 P.M. on 03.10.2008. By that time the Appellant was in
Hazat of the Police, P.W.9 - Pradeep Kumar Sahu had already been examined
on 02.10.2008 and Post-Mortem Report had already been received by the I.O.
on 01.10.2008. Strangely and surprisingly, the confessional statement recorded
by the Police is in complete sync with the prosecution story in verbatim. But
rightly such confessional statement has been eschewed by the learned Trial
Court being hit by Section 25 of the Evidence Act.
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15. Coming to the contentious issues raised by learned counsels for
the parties, admittedly the case is based entirely on circumstantial evidence. It
is also an admitted fact that, Pradeep Kumar Sahu (P.W.9), on whose evidence
the prosecution leans heavily to prove the circumstance of "last seen together",
is a child witness.
16. The essentials of circumstantial evidence stand well established
by precedents and we do not consider it necessary to reiterate the same and
burden the order unnecessarily. Suffice it to outline the three cardinal elements
of circumstantial evidence, which are necessary to sustain the conviction :-
(i) The circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established ;
(ii) those circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused ;
(iii) the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that, within
all human probability the crime was committed by the accused and
none else, and it should also be incapable of explanation on any
other hypothesis than that of the guilt of the accused.
17. So far as evidence of a child witness is concerned, probative
effect and policy behind proving such evidence also stands well established by
authoritative precedents. Hon'ble Supreme Court, in the case of Digamber
15
Vaishnav and Another Vrs. State of Chhattisgarh, (2019) 4 SCC 522, in
paragraphs 21 and 23 have discussed about the extent of dependence on the
testimony of a child witness. In paragraph-21 of the said judgment, Hon'ble
Supreme Court has held thus :-
"21. The case of the prosecution is mainly dependent
on the testimony of Chandni, the child witness, who was
examined as P.W.8. Section 118 of the Evidence Act
governs competence of the persons to testify which also
includes a child witness. Evidence of the child witness
and its credibility could depend upon the facts and
circumstances of each case. There is no rule of practice
that, in every case the evidence of a child witness has to
be corroborated by other evidence before a conviction can
be allowed to stand, but as a prudence, the court always
finds it desirable to seek corroboration to such evidence
from other reliable evidence placed on record. Only
precaution which the court has to bear in mind while
assessing the evidence of a child witness is that witness
must be a reliable one.
(Emphasis supplied by us)
In paragraph-23 of the judgment, Hon'ble Supreme Court has relied on the case
of Alagupandi Vrs. State of Tamilnadu, (2012) 10 SCC 451, wherein Their
Lordships have emphasized the need to accept the testimony of a child with
16
caution after substantial corroboration before acting upon it. In the case of
Alagupandi (supra), in paragraph-36 of the judgment it was held thus :-
"36. It is a settled principle of law that a child witness
can be a competent witness provided statement of such
witness is reliable, truthful and is corroborated by
other prosecution evidence. The court in such
circumstances can safely rely upon the statement of a
child witness and it can form the basis for conviction as
well. Further, the evidence of a child witness and
credibility thereof would depend upon the circumstances
of each case. The only precaution which the court should
bear in mind while assessing the evidence of a child
witness is that the witness must be a reliable one and
his/her demeanour must be like any other competent
witness and that there exists no likelihood of being
tutored. There is no rule or practice that in every case
the evidence of such a witness be corroborated by other
evidence before a conviction can be allowed to stand, but
as a rule of prudence the court always finds it desirable to
seek corroboration to such evidence from other reliable
evidence placed on record. Further, it is not the law that if
a witness is a child, his evidence shall be rejected, even if
it is found reliable."
(Emphasis supplied by us)
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18. P.W.9, who is a child of about 12 years old, is the only witness,
who is testified to have seen the Appellant near the deceased just before the
occurrence. We have to find out whether P.W.9 is reliable and whether there
exists no likelihood of his being tutored.
P.W.9 is a student of Class-VI. He has testified that, after the
prayer class was over he proceeded to classroom and the Headmaster (P.W.10)
took attendance in the class. Around 11 A.M. with permission of the Monitor of
the class (not examined) and the Headmaster (P.W.10) he proceeded towards
the urinal. While he was proceeding to the urinal, he found the Appellant on the
verandah putting on one colour towel ("Ranga Gamuchha") on his head and
holding a cane. While approaching the urinal he found the deceased standing in
between the vacant place of Classroom No.I and Classroom No.IV, and at that
time the Appellant, who was standing, stared at the deceased. When he
returned after answering the call of nature, he found the deceased crying and
when he asked the reason of her crying, the deceased asked him to go away.
When he informed the Appellant that the deceased was crying, the Appellant
told him not to bother about that and go to his class. When, as per the
instruction of the Appellant he was proceeding to his class, he looked back and
found the Appellant proceeding towards the deceased. Ten to fifteen minutes
thereafter he (P.W.9) heard hue and cry in the school that the deceased was
lying dead in the Girls' Urinal.
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In his cross-examination P.W.9 has testified that, he arrived in the
school after 10 A.M. and prayer class was held in between 10.10 to 10.20 A.M.
He further testified that, when he proceeded to the Headmaster (P.W.10) to seek
his permission for attending call of nature, the Headmaster was present in the
office room. When he was proceeding to the urinal, Bibhuti Bhusan Panigrahi
was teaching to the students in Class-IV and the Appellant was standing near
Class-V. The deceased was standing in front of the room where students of
Class - I to III were reading. Again he has testified that, while he was returning
from the urinal, the Appellant was still standing near the classroom of Class-V.
19. P.W.6 - Reena Subudhi was a part-time teacher in the school
since 2008. She had discontinued the job after joining of Mamata Kumari Sahu
(P.W.5). At about 10.40 A.M. on the date of occurrence she (P.W.6) had come
to the school to meet the Headmaster (P.W.10) for settlement of her pending
salary bills. As the Headmaster (P.W.10) was taking attendance of Class-V, she
waited for him.
The Headmaster (P.W.1) has testified that, while coming out of
Class-V after taking Roll Call, he saw Reena Subudhi (P.W.6), he went with her
to his office room, had discussion with her about her Absentee Statement, etc.
and then he proceeded to Class-VII. Nandini Behera (P.W.16), who had gone
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to toilet with his permission, came and reported to the effect that the deceased
was lying in the girls' urinal and she was not responding.
20. From the aforesaid evidence on record, it is found that, P.W.9 is
lying, because,
(i) Though Bibhuti Bhusan Panigrahi, Class Teacher of Class-VI was
absent on that date, as testified by the Headmaster (P.W.10) and
as found from the Attendance Register of the Teachers (Ext.11), it
was a lie on the part of P.W.9 to testify that Bibhuti Bhusan
Panigrahi was taking class in Class-IV when he (P.W.9) was
going to the urinal.
(ii) Reena Subudhi (P.W.6) was all along with the Headmaster
(P.W.10) after P.W.10 returned from Class-V, and they both were
discussing in the office room about the Absentee Statement, etc.
of P.W.6. P.W.9 has testified to have taken permission from the
Headmaster (P.W.10) for going to the urinal while he was in the
office. P.W.9 has not testified about presence of Reena Subudhi
(P.W.6) in the office, though she was present with the Headmaster
in the office till the Headmaster proceeded towards Class-VII after
discussion with Reena Subudhi (P.W.6), who was admittedly
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present in the school and helped in bringing the body of the
deceased to the verandah of the school.
(iii) In the additional evidence of the Headmaster (P.W.10) recorded
on 16.01.2020 by this Court, P.W.10 is testified to have put a 'dot'
mark against the name of P.W.9 in the Attendance Register of
Class-VI (Ext.9), as at the time of Roll Call he was absent.
21. In his evidence P.W.10 very lucidly has testified that, after the
prayer class was over, he proceeded to his office-room and signed the
Attendance Register meant for the Teachers. The Appellant also arrived in his
office after the prayer class was over and he (P.W.10) proceeded to Class-VII to
take the attendance of students and the Appellant proceeded to Class-IV, of
which he was the Class Teacher. After Roll Call in Class-VII, he (P.W.10)
proceeded to Class-VI for taking attendance, as Bibhuti Bhusan Panigrahi - the
Class Teacher of Class-VI was on leave on that day. After taking Roll Call in
Class-VI, he proceeded to Class-V, as Durga Prasad Sahu (P.W.11) - the Class
Teacher of Class-V had sent information to come to the school little late on that
day. Then P.W.10 has specified the time as to what happened at what time on
the date of occurrence. According to P.W.10, school time is from 10.00 A.M. to
4.00 P.M. Prayer class was held at 10.30 A.M., which was over by 10 minutes.
He proceeded to take attendance in Class-VII at 10.40 A.M., then he proceeded
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to take attendance in Class-VI at 10.50 A.M. and then he proceeded to take
attendance in Class-V at 11.00 A.M. P.W.10 has further specifically testified
that, while he was taking attendance in Class-V, the Appellant was present in
Class-IV. Durga Prasad Sahu (P.W.11) has also testified that, when he arrived
in the school at 11.00 A.M., he found the Headmaster (P.W.10) coming from
Class-V, of which he (P.W.11) was the Class Teacher. From the aforesaid
evidence, it is clear that -
(a) At 11.00 A.M. the Headmaster (P.W.10), Reena Subudhi (P.W.6)
and Durga Prasad Sahu (P.W.11) were there in the premises of
the school in between the area from the office of the Headmaster
which is one building and classroom of Class-V which is in another
building intervened by a vacant space [reference may be made to
the Spot Map prepared by the I.O. (Ext.34)]. While P.W.10 was
coming out from Class-V, Reena Subudhi (P.W.6) was waiting for
the Headmaster (P.W.10) and Durga Prasad Sahu (P.W.11) was
coming to Class-V. At that time the Appellant was teaching in
Class-IV. If P.W.9 had come to class on that day, he must have
come to class after 10.50 A.M., because the Headmaster (P.W.10)
has put a 'dot' mark against his Roll Number while taking
attendance of Class-VI, as he (P.W.9) was found to be absent in
class. Though P.W.6, P.W.10 and P.W.11 had their movement in
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the school premises precisely at 11 A.M., they have not seen
P.W.9 coming towards urinal of the school.
(b) The Headmaster (P.W.10), as in case of Nandini Behere (P.W.16),
has testified that she (P.W.16) had taken his permission to go to
attend call of nature, has not testified or whispered a word that
P.W.9 had ever come to him to seek permission to go to attend
call of nature. Reena Subudhi (P.W.6), who was in the office of
P.W.10 on the date of occurrence, has also not whispered a word
about coming of P.W.9 to the office of the Headmaster or to the
school premises.
All the aforesaid aspects, if taken cumulatively, drive us not to
believe P.W.9 as a truthful witness. Further, immediately after P.W.9 left the
company of the Appellant and the deceased, as testified by him, in a split
second the dead body of the deceased was recovered from the urinal of the
school, and the time of death as testified by P.W.9 does not inspire confidence in
view of our discussion in paragraph-13 (supra).
22. Another curious fact is that, the I.O. (P.W.35) on 01.10.2008 had
made the spot visit and he prepared the Spot Map during that visit, vide Ext.34.
In paragraph-11 of his Cross-Examination, P.W.35 has testified thus :-
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"....Though some witnesses stated during investigation
about the places and locations within the school premises
about the presence of the deceased, the accused and
P.W.9 immediately before the incident, I have not shown in
the spot map those locations....."
P.W.9 was examined on 02.10.2008 by the I.O. (P.W.35), as
testified by him, though it is different in the evidence of P.W.9. However, there is
nothing on record to find out whether the statement of P.W.9, a vital witness,
was sent to the Court while forwarding the Appellant to the Court on 04.10.2008
in compliance of Section 167(1), Cr.P.C. From the aforesaid evidence it is clear
that, during the spot visit by P.W.35 on 01.10.2008, either P.W.9 had already
disclosed the incident before the villagers who told P.W.35 to show his location
in the Spot Map or P.W.9 had already been set up to be tutored for the purpose
of the case, as he was an accomplished opera artist and had won prizes for his
performance. It is the settled position of law that, when two views are possible
from a given fact, the view favourable to the defence should be preferred.
23. Learned Additional Government Advocate relies heavily on the
evidence of Abhaya Behera (P.W.27) as a cogent corroborative piece of
evidence to the evidence of P.W.9.
From the evidence on record, we find that the prosecution has
examined Bipra Pradhan (P.W.21) and Abhaya Behera (P.W.27) to corroborate
24
evidence of P.W.9. Bipra Pradhan (P.W.21) is the cook, who prepares Mid-day
Meals in the school. He has turned hostile completely. P.W.27, a student of
Class-IV, aged about 10 years, has testified that, "one month back the appellant
was teaching mathematics in our class. He (Appellant) gave us the sum to work
out and cautioned them not to haul in the class, and so saying he left the class to
answer the call of nature. And later on we heard about the death of the
deceased." In the cross-examination, P.W.27 has testified that, "Appellant
returned back to their class to check the task which he had given to us."
From the evidence of P.W.27 it is not clear at what time Appellant
had gone to attend the call of nature. From his evidence it is however clear that,
the Appellant returned to class in normal state of mind and started checking the
sum he had given the students to work out. Such a mental state is not expected
of an ordinary person after committing a ghastly crime. Further, in view of the
infirmity as discussed supra in the evidence of P.W.9, we do not feel inclined to
accept the evidence of P.W.27 as a corroborative piece of evidence.
The evidence of the Monitor of Class-VI, whose permission P.W.9
is testified to have taken for going to attend the call of nature, would have been a
good piece of corroborative evidence, but the Monitor of Class-VI has not at all
been examined, though Monitor of Class-VII has been examined as P.W.22.
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24. Taking into consideration the evidence obtained on record in their
entirety and not in a compartmentalized manner as done by learned Trial Court
in case of evidence of P.W.9, we are constrained to hold that P.W.9 cannot be
believed to have seen the Appellant near the deceased just before the
occurrence.
25. The second circumstance pressed by the prosecution is that, on
personal search of the Appellant it was found that he (Appellant) had put on his
underwear ('chadi') on the reverse side. The witnesses to this incident are Ladu
Kishore Pradhan (P.W.20), Biranchi Pradhan (P.W.25), Rajendra Sahu
(P.W.26), Bijay Kumar Pradhan (P.W.28), Balakrushna Sahu (P.W.31) and the
I.O. (P.W.35). Learned Trial Court, on this circumstance, has relied on the
evidence of P.W.25 alone. P.W.28 has turned hostile on this aspect. Ladu
Kishore Pradhan (P.W.20) has testified that, suspecting involvement of the
Teachers in the occurrence, the infuriated villagers undressed the Teachers in
front of all and it was found that the Appellant was wearing his underwear
('chadi') on the reverse side. On his cross-examination, P.W.20 has testified
that he was not examined by Police and for the first time he is deposing such
fact before the Court. Biranchi Pradhan (P.W.25), who is a co-villager and
Secretary of the Panchayat, has testified that the villagers did not allow the
Teachers to go with the Police; they squatted blocking the road, they demanded
26
search of the person and wearing apparels of the teachers, and when the
Appellant gave search of his wearing apparels, it was found that he (Appellant)
had put on the underwear ('chadi') on the reverse side; when they asked the
accused - Appellant as to why he has put on the 'chadi' on the reverse side, the
accused replied that since hurriedly he came to the school, by mistake he put on
the 'chadi' on the reverse side. It is further testified by him (P.W.25) that, that
'chadi' of the Appellant had deep brownish colour stains in it. In paragraph-3 of
his cross-examination, P.W.25 has testified thus -
"......After arrival of the Sub-Collector, Chatrapur and Addl.
S.P., Chatrapur, the wearing dresses of the three teachers,
who had been confined in the Class Room were taken.
From our village three persons also accompanied the Sub-
Collector and Addl. S.P. when personal search of the three
teachers were taken. I did not go inside the room when
search of the wearing apparels of the Headmaster, Durga
Prasad Sahu and Santha Charan Patnaik (Appellant), the
three teachers were taken, and I heard that Santha Charan
Pattnaik had put on the 'chadi' on the reverse side and
some stains on his 'chadi' , which I had not seen
myself......"
Rajendra Sahu (P.W.26) has testified that, when Police arrived,
the angry mob demanded that search of the wearing apparels of the teachers be
taken up. (He doesn't state about presence of the Sub-Collector and Addl. S.P.,
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Chatrapur). When that demand was made, the Headmaster (P.W.10) and Durga
Prasad Sahu (P.W.11) publicly opened their clothing. When search of the
clothes of Santha Charan Patnaik (Appellant) was taken up, it was found that the
'Ganji' and 'Chadi' were blood-stained. He (Appellant) had worn the 'Chadi' on
the reverse side. In his cross-examination, P.W.26 has testified that the
teachers were undressed in a class-room, they voluntarily removed their shirt /
pant, but they did not remove their underwear.
The I.O. (P.W.35) has testified that, he conducted personal search
of the three suspected persons on the demand of the villagers. On such search,
he found stains like that of blood on the banian and 'chadi' of Santha Charan
Patnaik (Appellant). So, he seized the banian and 'chadi' of the accused, vide
Ext.25.
None of the witnesses namely P.W.20, P.W.26 and P.W.31 has
testified that any of them had gone inside the room where personal search and
checking of dress of the teachers including the Appellant was taken.
From the evidence of the aforesaid witnesses, it is found that the
I.O. (P.W.35) though took personal search of the three teachers, he is silent
about the fact that the Appellant had put on the 'chadi' on the reverse side.
P.W.25, on whose sole evidence the learned Trial Court has placed reliance so
far as this circumstance is concerned, in his cross-examination has specifically
testified that he had no personal knowledge about the search taken inside a
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room in presence of the Sub-Collector, Chatrapur and Addl. S.P., Chatrapur.
His evidence is totally hearsay. Other witnesses, who have testified about the
personal search of the teachers, contradict each other on vital aspect. Silence
of the I.O. on this aspect is most vital.
In view of such fact, we are constrained to disbelieve the evidence
tendered by the prosecution to prove this circumstance too.
26. Another aspect is, injury on the body of the Appellant. This needs
no discussion in view of the admitted fact at the Bar that, after the incident, as
testified by majority of witnesses, all the three teachers were assaulted by the
villagers and blood patches have been found in the Chemical Examination
Report (Ext.39) on the vest of the Appellant, on the full shirts of Biswanath
Gouda (P.W.10) and Durga Prasad Sahu (P.W.11).
27. So far as Chemical Examination Report (Ext.39) in respect of the
underwear ('chadi') of the Appellant is concerned, no blood or no semen was
found in the said C.E. Report (Ext.39). On Benzidine Test conducted by P.W.13
however, so far as his (Appellant's) shirt, vest and underwear are concerned, the
test, according to P.W.13, came out to be positive. However, the Chemical
Examination Report, which is the outcome of a more surer test, negatived
presence of blood on the shirt and underwear of the Appellant. Some patches of
29
blood on his vest, which is of human origin of B+ group, have been found in the
Chemical Examination Report (Ext.39) and P.W.13 in paragraph-2 of his
examination-in-chief has specifically testified that the Blood Group of the
Appellant is B+.
Further, so far as Benzidine Test is concerned, no question has
been asked to the Appellant in his examination under Section 313, Cr.P.C., and
for that reason such a fact cannot be taken into consideration to find the
Appellant guilty.
28. Another feature of the evidence of P.W.13 is that, on examining
the private part of the Appellant, namely his penis, the glance penis appeared to
be slightly reddish adjoining urethral meatus and there was no other injury
except superficial redness around meatus could be detected on the penis of the
Appellant-accused. In his cross-examination, P.W.13 testified that, if a person
suffers from acute urethritis, there would be redness around the urethral meatus.
By the terminology "urethritis" means inflammation of the urethra because of
some infection. The superficial redness around the meatus could be seen in
acute urethritis. In answer to question No.21, in his statement under Section
313, Cr.P.C., the Appellant has replied that he was suffering from itching of his
urethra since some days and for that reason there was redness on the meatus.
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29. Another aspect, on which learned Trial Court has leaned heavily in
finding the Appellant guilty, is non-explanation of the injuries on the dead body of
the deceased by the Appellant. On this aspect, suffice it to say on our part is
that, in view of the nature of evidence obtained on record, onus of proof under
Section 106 of the Evidence Act never shifts to the defence to explain the
injuries on the dead body of the deceased.
30. If we see the evidence of P.W.13 in conjunction with the evidence
of P.W.33 - who conducted the Post-Mortem Examination, it would be seen that
P.W.33 has specifically testified that, in case of forcible sexual intercourse with a
minor girl, there is every likelihood of presence of injuries on the private part of
the perpetrator of the crime, namely frenum, glans-penis and prepuce.
31. There being penetration, as found from the medical evidence and
especially the Post-Mortem Report in respect of the deceased and there being
no injury to the private part of the Appellant except slight redness on his
meatus, which has been explained by him (Appellant) and there being no blood
and no semen found on his underwear though there was profuse bleeding from
the vagina of the girl (deceased) at the time of ravishment, as found from
evidence, we are of the view that there is nothing on record to find the Appellant
guilty.
31
32. Accordingly, we set aside the impugned Judgment of conviction
recorded under Section 376/302, I.P.C. against the Appellant and sentences
recorded thereunder, and we acquit the Appellant of the charges. If the
Appellant is in custody, he be released forthwith. However, if the Appellant is
continuing on interim bail after expiry of the interim bail period in view of
intervening Lock-down for COVID-19, the interim bail is regularized by extending
the same till today and the Appellant be discharged of the bail bond on his
appearance before the Trial Court.
33. The CRLA is accordingly allowed.
...........................
C. R. Dash, J.
S.K. Panigrahi, J. I agree.
............................ S. K. Panigrahi, J.
Orissa High Court, Cuttack. The 21st day of April, 2020. S.K. Parida, A.R.-cum-Sr.Secretary.