Orissa High Court
- vs - on 20 June, 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: 20-Jun-2024 11:05:59
IN THE HIGH COURT OF ORISSA, CUTTACK
DSREF No.01 of 2022
From judgment and order dated 29.11.2022 passed by the
Adhoc Addl. Sessions Judge, F.T.S.C., POCSO, Jagatsinghpur in
Special G.R. Case No.30 of 2014.
---------------------
State of Odisha
-Versus-
1. Sk. Asif Alli @ Md. Asif Iqbal
2. Sk. Akil Alli ....... Condemned Prisoners/
Accused Persons
For State of Odisha: - Mr. Bibhu Prasad Tripathy
Addl. Govt. Advocate
For Condemned
Prisoners/Accused: - Sk. Zafarulla
Advocate
CRLA No.120 of 2023
Sk. Asif Alli @
Md. Asif Iqbal ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Sk. Zafarulla
Advocate
For Respondent: - Mr. Bibhu Prasad Tripathy
Addl. Govt. Advocate
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
CRLA No.121 of 2023
Sk. Akil Alli ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Sk. Zafarulla
Advocate
For Respondent: - Mr. Bibhu Prasad Tripathy
Addl. Govt. Advocate
---------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE R.K. PATTANAIK
---------------------------------------------------------------------------------------------------
Date of Hearing: 14.05.2024 Date of Judgment: 20.06.2024
---------------------------------------------------------------------------------------------------
S.K. Sahoo, J. The reference under section 366 of the Code of
Criminal Procedure, 1973 has been submitted to this Court by
the learned Adhoc Addl. Sessions Judge, F.T.S.C., POCSO,
Jagatsinghpur (hereinafter 'the trial Court') in Special G.R. Case
No.30 of 2014 for confirmation of death sentence imposed on Sk.
Asif Alli @ Md. Asif Iqbal and Sk. Akil Alli (hereinafter 'the
appellants') vide judgment and order dated 29.11.2022 and
accordingly, DSREF No.01 of 2022 has been instituted. CRLA
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
No.120 of 2023 has been filed by appellant Sk. Asif Alli @ Md.
Asif Iqbal and CRLA No.121 of 2023 has been filed by appellant
Sk. Akil Alli challenging the self-same judgment and order of
conviction passed by the learned trial Court.
The appellants along with Sk. Abid Alli faced trial in
the trial Court for commission of offences punishable under
sections 302/376-A/376-D read with section 120-B of the Indian
Penal Code (hereinafter 'the I.P.C.') and section 6 of the
Protection of Children from Sexual Offences Act, 2012
(hereinafter 'POCSO Act') on the accusation that on 21.08.2014
in between 2.00 p.m. to 11.00 p.m. in the house of Sk.
Khairuddin at village Manu Mohalla under Tirtol police station in
Jagatsinghpur district, they made criminal conspiracy and
committed gang rape and aggravated penetrative sexual assault
on the minor victim girl (hereinafter 'the deceased') and inflicted
injuries which caused death of the deceased.
The learned trial Court vide impugned judgment and
order dated 29.11.2022 found the appellants guilty for the
offences punishable under sections 302/376-A/376-D of the
I.P.C. and section 6 of the POCSO Act and awarded them death
sentence for the offence under section 302 of the I.P.C. so also
sentenced each of them to undergo imprisonment for life for the
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
offence under section 376-A of the I.P.C., which shall mean
imprisonment for the remainder of natural life, R.I. for a period
of twenty years and to pay a fine of Rs.50,000/- (rupees fifty
thousand), in default, to undergo R.I. for a further period of one
year for the offence under section 376-D 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
substantive sentences awarded to the appellants were directed
to run concurrently.
The accused Sk. Abid Alli, who faced trial along with
the appellants, was found not guilty for the offences punishable
under sections 302/376-A/376-D/120-B of the I.P.C. and section
6 of the POCSO Act and accordingly, he was acquitted of all the
charges.
Since both the DSREF and the criminal appeals 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.3) lodged by P.W.7 Tara Bibi, is
that on 21.08.2014 at about 2.00 p.m., the deceased along with
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
her cousin brother Sk. Farhan Alli (P.W.17) had been to a nearby
shop of their house to purchase chocolates. As there was delay
of the deceased in returning home, at about 3.00 p.m., P.W.7
and others searched for the deceased but failed to trace her out.
Some co-villagers found the deceased on the Taza of one Sk.
Khairuddin in an unconscious state and immediately they shifted
her to Tendakuda Primary Health Centre, but the doctor advised
them to take the deceased to S.C.B. Medical College and
Hospital, Cuttack (hereafter 'S.C.B.M.C.H, Cuttack'). On being
asked, the doctor told them that somebody had throttled her
neck after committing rape on her. While being shifted to
S.C.B.M.C.H, Cuttack, on the way the deceased died and
therefore, P.W.7 and others returned back to the village carrying
the dead body of the deceased. On enquiry, P.W.17 informed
that the appellants gagged the mouth of the deceased and took
her away by lifting her in arms while they were returning home
after purchasing chocolates. P.W.7 suspected that both the
appellants after committing rape on the deceased had
strangulated her to death.
On receipt of the written report from P.W.7 which
was scribed by P.W.9 Siraj Ul Haque, Sri S.K. Panda, A.S.I. of
Krushnanandapur outpost made Station Diary Entry No.300
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
dated 21.08.14 and sent the report to the Inspector in-charge of
Tirtol police station for registration and accordingly, the
Inspector in-charge of Tirtol police station, namely, Dayanidhi
Nayak (P.W.27) registered Tirtol P.S. Case No.183 dated
21.08.2014 under sections 376-A/376(2)(f)(g) of the I.P.C. and
section 6 of the POCSO Act against the appellants at 11.45 p.m.
and he himself took up the investigation of the case.
During the course of investigation, the I.O. (P.W.27)
visited the spot during the intervening night of 21.08.2014 and
22.08.2014, examined the witnesses and recorded their
statements, sent requisition to the S.P., Jagatsinghpur for
deputation of scientific team to the spot to assist him during
investigation and for collection of material evidence. The local
people apprehended the appellant Sk. Akil Alli and on the same
night at about 3.30 a.m., the I.O. seized the wearing apparels of
the appellant Sk. Akil Alli in presence of the witnesses as per
seizure list Ext.6 and at about 3.45 a.m., he arrested the
appellant Sk. Akil Alli and sent him to Medical Officer (P.W.28),
C.H.C., Manijang for medical examination through escort party.
On 22.08.2014 in the morning at about 6.50 a.m.,
the I.O. visited the place of occurrence and prepared the spot
map vide Ext.20 and during spot visit, he found a quilt, inner
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
garments, towel, plastic chappal, cigarette pups, glass bottles
and Aska 40 liquor bottles, thumps up plastic bottles, a pair of
golden ear rings at the spot. On the same day at about 7.20
a.m., he conducted inquest over the dead body of the deceased
in presence of her family members and other witnesses and
prepared inquest report (Ext.1). At about 8.20 a.m., he sent the
dead body of the deceased to C.D.M.O., D.H.H., Jagatsinghpur
through escort party for post mortem examination and opinion.
On 22.08.2014 at about 1.30 p.m., the scientific team of
S.F.S.L., Rasulgarh and staff of D.F.S.L., Jagatsinghpur arrived
at the spot and inspected the spot. The I.O. examined the
seizure witnesses and Sri Chunuram Murmu, S.O., S.F.S.L.,
Rasulgarh, Bhubaneswar and recorded their statements. During
inspection of the spot by the Scientific Officer, three chance
finger prints were detected from the bottles (Aska 40 bottles).
The chance finger prints were developed with white powder and
marked as Ext.A, B and Ext.B/1. At about 5.30 p.m., the I.O.
(P.W.27) seized two sealed vials containing the sample pubic
hair and sample semen of the appellant Sk. Akil Alli on
production of escorting constable B.B. Singh collected during the
medical examination of the appellant in presence of the
witnesses as per seizure list (Ext.7). On the same day at about
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Digitally Signed
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
7.30 p.m., the I.O. forwarded the appellant Sk. Akil Alli to the
Court.
On 23.08.2014, the I.O. made prayer before the
Court for recording the statement of the informant (P.W.7) under
section 164 of Cr.P.C. and on 25.08.2014, as per the direction of
S.P., Jagatsinghpur, a special team was formed to apprehend the
accused persons and raid was conducted at different places. On
04.09.2014, the I.O. received the post mortem report from the
A.D.M.O., D.H.H., Jagatsinghpur.
On 05.09.2014 at about 3.00 p.m., the I.O.
apprehended the accused Sk. Abid Alli and appellant Sk. Asif Alli
at Bhubaneswar and seized one Nokia mobile phone during the
personal search of appellant Sk. Asif Alli in presence of the
witnesses. On the same day, the I.O. also seized one Honda
Activa scooty bearing regd. no. OD 21 B 0693 and one Samsung
Mobile handset during the personal search of accused Sk. Abid
Alli and then, the I.O. brought both the accused Sk. Abid Alli and
the appellant Sk. Asif Alli to Tirtol police station and seized the
wearing apparels of the appellant Sk. Asif Alli in presence of the
witnesses and prepared the seizure list marked as Ext.9 and sent
the accused Sk. Abid Alli and appellant Sk. Asif Alli to M.O.,
C.H.C., Manijanga for medical examination and opinion. The I.O.
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Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
received the spot visit report along with the photographs of the
spot from the Scientific Officer, S.F.S.L. through post. On
06.09.2014, the I.O. received the medical examination report of
the accused Sk. Abid Alli and appellant Sk. Asif Alli and at about
11.45 a.m., he arrested both of them and seized the biological
exhibits on production of the escort officer, S.I. Govinda Majhi in
presence of witnesses and prepared the seizure list Ext.11. On
the same day at about 6.00 p.m., he forwarded the accused Sk.
Abid Alli and the appellant Sk. Asif Alli to the Court.
On 09.09.2014, the I.O. seized the school admission
register of Kalinga Public School, Tala Barei, Krishnanandapur on
production by P.W.14 Kalpana Beura, the Principal of the School
in presence of witnesses and prepared the seizure list (Ext.13),
in which the date of birth of the deceased was mentioned as
16.03.2008 and left the same in zima of P.W.14 by executing
zimanama (Ext.14). On the same day at about 2.00 p.m., the
I.O. seized the original birth certificate of the deceased on
production by uncle of the deceased, namely, Ayub Ali @ Tuku
and prepared the seizure list (Ext.10) and left the same in his
zima executing zimanama (Ext.21). On 20.09.2014, the I.O.
made prayer before the Court to send the seized exhibits to
S.F.S.L., Rasulgarh for chemical examination and opinion vide
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Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
Ext.24. On 25.09.2014, he also made prayer to the Court for
passing necessary order for collection of finger print of the
appellant Sk. Akil Alli from Sub-Jail, Jagatsinghpur and on the
very day, as per the direction of the Court, the finger print was
collected. The Scientific Officer, D.F.S.L. finger print and team
also collected finger prints of the appellant Sk. Asif Alli and
accused Sk. Abid Alli from the Sub-Jail, Jagatsinghpur after
obtaining the order of the Court. The I.O. made requisition to the
S.P., Jagatsinghpur to send the chance finger prints collected
from Aska 40 bottles, which were transferred to a C.D. along
with specimen ten digit finger print slips of the accused Sk. Abid
Alli and the appellants to the Director, State Finger Print Bureau,
Rasulgarh, Bhubaneswar for necessary comparison and opinion.
On 1.20 p.m., the I.O. seized the O.P.D. ticket of the deceased
on production by P.W.21 in presence of the witnesses and
prepared the seizure list Ext.17.
On completion of investigation, P.W.27 submitted
charge sheet dated 21.10.2014 under sections 376-A/376-
D/120-B of the I.P.C. and section 6 of the POCSO Act against the
accused Sk. Abid Alli, Sk. Asif Alli @ Md. Asif Iqbal (appellant in
CRLA No.120 of 2023) and Sk. Akil Alli (appellant in CRLA
No.121 of 2023) and one Sk. Abdul Karim Ali showing him as
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
absconder before the learned S.D.J.M., Jagatsinghpur, which was
forwarded to the learned Sessions Judge -cum- Special Judge,
Jagatsinghpur on 22.08.2014 and the learned Special Judge,
Jagatsinghpur took cognizance of offences under sections 376-
A/376-D/120-B 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 appellants so also the accused Sk. Abid Alli on
17.11.2014 and since all of them refuted the charges, pleaded
not guilty and claimed to be tried, the sessions trial procedure
was resorted to prosecute them and establish their 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 nine
witnesses.
P.W.1 Sk. Wamik Alli stated that on the fateful day
when he along with others was present in the field of
Akhandalmani, at about 6 p.m. he found the appellant Sk. Asif
Alli and accused Sk. Abid Alli and Sk. Abdul Karim Alli going
towards village Kolta in a red colour Activa scooty. He further
stated to have learnt about the missing of the deceased for
which he along with others started for searching the deceased.
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
Upon hearing a hulla, he came to the house of one Sk.
Khairuddin, where P.W.2 Sk. Sikandar Basa rescued the
deceased in a naked condition with injury on the neck and near
the ear drum, after which the deceased was brought to her
house and then shifted to the medical.
P.W.2 Sk. Sikandar Basa stated that on the date of
occurrence, he heard an announcement from the Masjid about
the missing of the deceased and accordingly, started searching
for her along with others. He further stated that during such
search, P.W.3 Sk. Mustakin Alli found the deceased lying on the
Taza of the house of one Sk. Khairuddin, who called others in a
loud voice to the spot. Upon reaching there, he found the
deceased was lying naked in an unconscious state. He also
stated to have noticed nail marks on the belly, back and knee
and blood patches on the thigh of the deceased. He further
stated that he brought the deceased from that place and handed
her over to P.W.1 who took the child to her house. He also
stated that he along with others enquired from P.W.17, the
brother of the deceased, who stated that while he and the
deceased were returning after purchasing chocolates, the
appellant Sk. Akil Alli gagged the mouth of the deceased and
appellant Sk. Asif Alli lifted and took her.
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
P.W.3 Sk. Mustakim Alli stated that after coming to
know that the deceased was found missing, he enquired from
P.W.17 about the deceased, who disclosed that when he and the
deceased were returning after purchasing chocolates, the
appellant Sk. Akil Alli gagged the mouth of the deceased and Sk.
Asif Alli lifted and took her away. He further stated that upon
seeing the deceased on the Taza of the underground house of
Sk. Khairuddin, he alarmed after which P.W.2 rescued the
deceased from the Taza in a naked condition and then the
deceased was first shifted to her house and then to Tendakuda
Hospital.
P.W.4 Md. Mustakim Naimee stated that while he
was playing in Akhandalmani field, he came to know about the
missing of the deceased after which he along with P.Ws.1, 2 and
3 searched for her. After a while they found the deceased lying
on the Taza of the house of one Sk. Khairuddin. He further
stated that after rescuing the deceased, they took her to her
house and subsequently, he along with P.W.2 shifted the
deceased to Tendakuda medical. He is also a witness to the
inquest over the dead body of the deceased.
P.W.5 Musaraf Alli stated that on the date of
occurrence, when he was returning from Masjid after reading
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
Namaz at about 02.00 to 02.30 p.m., he saw the appellants Sk.
Akil Alli and Sk. Asif Alli were standing near the house of Sk.
Khairuddin and they were trembling, worried and looking
nervous.
P.W.6 Sk. Mashkur Alli stated that while he was
returning to his village on the date of occurrence, he saw the
appellants, accused Sk. Abid Alli and Sk. Abdul Karim Alli were
taking liquor on the verandah of one Manu Mian at about 12.30
p.m. and talking with each other. He further stated that the
police came and seized certain items from the spot and prepared
the seizure list vide Ext.2. He identified the material objects
(M.Os.) in the Court.
P.W.7 Tara Bibi is the informant of the case and she
was the aunt of the deceased. She supported the prosecution
case and stated that the deceased had been to purchase
chocolate with P.W.17 but did not return home. She further
stated about the search to trace the deceased and the body of
deceased was found from the Taza of the house of Khairuddin in
naked condition with injuries on different parts of her body. She
further stated that P.W.17 disclosed before them about the
appellants taking away the deceased by lifting her while they
were returning from the shop after purchasing chocolates. She is
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
a witness to the preparation of the inquest report vide Ext.1. She
is also a witness to the seizure of the wearing apparels of the
deceased by the police vide Ext.4. She identified the garments of
the deceased which were marked as M.Os. V, X and XIII in the
Court.
P.W.8 Diptiranjan Ray was working as a constable in
Tirtol police station and he is a witness to the seizure of the
wearing apparels of the appellant Sk. Akil Alli as per seizure list
Ext.6. He is also a witness to the seizure of the biological exhibits
of the appellant Sk. Akil Alli and the deceased as per seizure lists
Exts.7 and 8 respectively. He is also a witness to the seizure of
the wearing apparels of the appellants Sk. Asif Alli and Sk. Abid
Alli as per seizure lists Exts.9 and 10 respectively.
P.W.9 Siraj Ul Haque is the scribe of the F.I.R. He is
also a witness to the seizure of the blood-stained wearing
apparels of the deceased and school certificate of the deceased
vide seizure lists Exts.4 and 10 respectively.
P.W.10 Sk. Kalim Ulla is a witness to the seizure of
the blood-stained wearing apparels of the deceased and school
certificate of the deceased as per seizure lists Exts.4 and 10
respectively. He is also a witness to the preparation of inquest
report vide Ext.1.
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
P.W.11 Govinda Majhi was the Sub-Inspector of
Police, Tirtol Police Station, who is a witness to the seizure of the
wearing apparels of the appellant Sk. Akil Alli as per seizure list
Ext.6. He is also a witness to the seizure of the biological exhibits
of the appellant Sk. Akil Alli as per seizure list Ext.7 and also a
witness to the seizure of sealed vials containing the biological
exhibits of all the appellants as per seizure list Ext.11.
P.W.12 Lachaman Sethi was posted as the S.I. of
Police, Tirtol police station. He is a witness to the seizure of two
parcel sealed packets as per seizure list Ext.8. He is also a
witness to the seizure of Honda Activa scooty as well as one
Samsung mobile phone on production by accused Sk. Abid Alli as
per seizure list Ext.12. He is also a witness to the seizure of
Nokia mobile phone on production by appellant Sk. Asif Alli.
P.W.13 Pabitra Kumar Dalai was working as the Asst.
Teacher at Kalinga Public School, Krishnanandapur and he is a
witness to the seizure of school admission register of the
deceased as per seizure list Ext.13.
P.W.14 Kalpana Beura was working as the Principal
of Kalinga Public School, Krishnanandapur. She produced the
school admission register (Ext.15) of the deceased before the
police which was seized as per seizure list Ext.13. After
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
verification of the register, the police left the same in her zima as
per zimanama Ext.14.
P.W.15 Johra Bibi stated that the deceased was her
niece. She further stated that when she enquired from P.W.17
the whereabouts of the deceased, he stated that while he and
the deceased were returning after purchasing chocolates, the
appellant Sk. Akil Alli gagged the mouth of the deceased and the
appellant Sk. Asif Alli took her away towards the house of one
Sk. Khairuddin. She is also a witness to the preparation of the
inquest report vide Ext.1.
P.W.16 Bibhuti Bhusan Singh was the police
constable who is a witness to the seizure of one Nokia mobile
phone from the possession of appellant Sk. Asif Alli as per the
seizure list vide Ext.13. He is also a witness to the seizure of one
Activa scooty from the possession of appellant Sk. Abid Alli as
per seizure list Ext.12.
P.W.17 Sk. Farhan Alli is the cousin brother of the
deceased, who stated that on the date of occurrence while he
and his deceased sister were returning after purchasing
chocolates, the appellant Sk. Akil Alli gagged the mouth of the
deceased and the appellant Sk. Asif Alli lifted her and went away.
He stated that the accused Sk. Abid Alli and Sk. Abdul Karim Alli
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
were with them. He further stated to have disclosed the
aforesaid fact to his tuition Miss (P.W.26), P.W.7, P.W.15 and to
the police.
P.W.18 Prasanna Kumar Sahoo was working as a
police constable who is a witness to the seizure of the sealed
vials containing the biological exhibits of the appellants Sk. Akil
Alli and Sk. Asif Alli as per seizure list Ext.11.
P.W.19 Sk. Seraj Alli is a shopkeeper, who is also a
co-villager of the deceased. He stated that on the date of
occurrence, the deceased and P.W.17 came to his shop to
purchase chocolates at about 02.00 to 02.30 p.m. and after
taking chocolates, they went away. He further stated that on
that evening, he came to know that the deceased had been
raped and killed.
P.W.20 Sricharan Rout was working as the Assistant
Sub-Inspector of Police in Paradeep Lock police station. He is a
witness to the seizure of the wearing apparels of the appellant
Sk. Asif Alli and accused Sk. Abid Alli as per seizure lists Exts.9
and 10 respectively.
P.W.21 Dr. Amrit Kumar Behera was working as the
Medical Officer, P.H.C., New Tendakura. He stated that on the
date of occurrence, the deceased was brought by some people to
Page 18 of 106
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Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
the P.H.C. and she was in a senseless condition. He stated to
have found some nail marks on the neck of the deceased and
some marks on the back of the deceased. He also found redness
with blood stain in the pubic area of the private part of the
deceased. He referred her to the S.C.B.M.C.H., Cuttack for
further treatment.
P.W.22 Kishore Chandra Mohanty was working as the
attendant in the P.H.C., New Tendakura. He is a witness to the
seizure of the O.P.D. ticket vide seizure list Ext.17.
P.W.23 Sk. Wahid Alli is the uncle of the deceased.
He stated to have seen the appellants along with other accused
persons sitting on the verandah of one Manu Mian and taking
liquor while talking with each other. When he learnt about the
missing of the deceased, he along with others made
announcement from the Masjid. He further stated that when the
deceased was rescued, she was found lying naked with injuries
on her person.
P.W.24 Mir Zaural Haque is a witness to the seizure
of one plastic jari containing glass, burnt cigarette and some
other articles as per seizure list Ext.2.
P.W.25 Dr. Soumya Ranjan Nayak was the Assistant
Professor, F.M.T., S.C.B.M.H, Cuttack who along with Dr.
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Gopabandhu Patra, conducted post mortem examination over
the dead body of the deceased on police requisition. He proved
his report vide Ext.19.
P.W.26 Alakananda Sethy was the tuition Miss of the
deceased, who stated that on the fateful day, though she had
gone to give tuition, the deceased did not turn up for the same
for which she sent another child to call the deceased but the said
child could not find her. She further mentioned that P.W.17, the
brother of the deceased came for the tuition that day. She was
declared hostile by the prosecution.
P.W.27 Dayanidhi Naik was working as the I.I.C. of
Tirtol police station who is the Investigating Officer of this case.
P.W.28 Dr. Nigamananda Tripathy was posted as
Medical Officer, Manijanga C.H.C., who on police requisition,
medically examined the appellant Sk. Akil Alli and found him
capable of having sexual intercourse. He proved his report vide
Ext.27.
P.W.29 Dr. Debasis Mahali was working as the
Medical Officer, Manijanga C.H.C., who on police requisition,
medically examined the appellant Sk. Asif Alli and found him
capable of having sexual intercourse. He proved his report vide
Ext.28.
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The prosecution exhibited twenty nine documents.
Ext.1 is the inquest report, Ext.2 is the seizure list in respect of
one quilt, one panty, one napkin, dress of the deceased, one
glass, one thumbs up bottle and other articles, Ext.3 is the
F.I.R., Ext.4 is the seizure list in respect of wearing apparels of
the deceased, Ext.5 is the 164 Cr.P.C. statement of the
informant (P.W.7), Ext.6 is the seizure list in respect of wearing
apparels of the appellant Sk. Akil Alli, Ext.7 is the seizure list in
respect of biological exhibits of the appellant Sk. Akil Alli, Ext.8 is
the seizure list in respect of the nail clippings and pubic hair and
biological exhibits of the deceased along with the command
certificate of the escort constable, Ext.9 is the seizure list in
respect of wearing apparels of the appellant Sk. Asif Alli, Ext.10
is the seizure list in respect of wearing apparels of the accused
Sk. Abid Alli, Ext.11 is the seizure list in respect of biological
exhibits of the accused Sk. Abid Alli and the appellants in sealed
vials, Ext.12 is the seizure list in respect of one maroon colour
Honda Active bearing regd. no.OD 21B 0693 and one Samsung
mobile phone on production by the accused Sk. Abid Alli, Ext.13
is the seizure list in respect of the school admission register,
Ext.14 is the zimanama, Ext.15 is the school admission register,
Ext.17 is the seizure list in respect of the outdoor ticket bearing
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OPD No.4643-D dated 21.08.2014, Ext.18 is the O.P.D. ticket,
Ext.19 is the P.M. report, Ext.20 is the spot map, Ext.21 is the
zimanama, Ext.22 is the original birth certificate, Ext.23 is the
payer made by P.W.27 to send the seized exhibits to S.F.S.L.,
Bhubaneswar, Ext.24 is the forwarding report, Ext.25 is the C.E.
report, Ext.26 is the opinion report of the Director of Finger
Print, Bhubaneswar, Ext.27 is the Medical Report of P.W.28 and
Ext.28 and Ext.29 are the medical reports of P.W.29.
The prosecution also proved sixteen material objects.
M.O.I is the napkin, M.O.II is the lungi, M.O.III is the quilt,
M.O.IV is the panty, M.O.V is the semiz, M.O.VI is the full pant,
M.O.VII is the blue colour jean pant, M.O.VIII is the jean pant,
M.O.IX is the Chadi, M.O.X is the inner garment of the victim,
M.O.Xl is the inner banian (Ganji), M.O.XII is another banian
(Ganji), M.O.XIII is the pink colour panty of the victim, M.O.XIV
is the T-shirt and maroon colour full shirt, M.O.XV is the sealed
vial containing sample of semen, pubic hair, both loose and
plucked and nail clipping and scrapping and M.O.XVI is the vial
containing sample semen, pubic hair, nail clipping and scrapping
of accused Sk. Abid Alli.
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Defence Plea:
5. The defence plea of the appellants is one of denial of
occurrence and of false implication. No witness was examined on
behalf of the defence nor any document was exhibited.
Findings of the Trial Court:
6. The learned trial Court taking into account the
evidence of P.Ws.1, 2, 7, 15, 21 & 25 coupled with the inquest
report (Ext.1) and post mortem examination report (Ext.19)
finding came to hold that the prosecution has established that
the death of the deceased was a homicidal one. It was further
held that there are no eye witnesses to the occurrence and the
case is based on circumstantial evidence. The learned trial Court
jotted down the following six circumstances emerging from the
records, which are as follows:-
(i) The deceased was last seen with the
appellants;
(ii) The appellants were seen taking liquor in
the verandah of the house of one Manu Mian and
gossiping among themselves on 21.08.2014 at
about 12.00 p.m. to 12.30 p.m.;
(iii) The appellants were found trembling,
worried and nervous near the house of Sk.
Khairuddin;
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(iv) Leaving the village Manu Mahala the
appellant Sk. Asif Alli, accused Sk. Abid Alli and
Sk. Abdul Karim Alli in a Hero Honda Activa
scooty at about 6.00 p.m. on 21.08.2014;
(v) Detection of finger print of right index
finger of appellant Sk. Asif Alli by State Finger
Print Bureau from the Aska 40 bottle recovered
from the spot;
(vi) Conduct of the appellant Sk. Asif Alli and
Sk. Abid Alli in absconding from the village.
So far as the circumstance no.(i) is concerned, the
learned trial Court taking into account the evidence of P.W.17,
held that there is nothing to disbelieve in his evidence that
appellant Sk. Akil Alli gagged the mouth of the deceased and
appellant Sk. Asif Alli lifted her and they took her. It was further
held that after the appellants took the deceased as per the
evidence of P.W.17, nobody had seen the deceased till she was
recovered from the Taza of the abandoned house of Sk.
Khairuddin in a senseless and seriously injured condition and she
succumbed to her injuries prior to 8 p.m. and in absence of any
explanation from the appellants, it can safely be concluded that
they were the authors of the crime.
So far as the circumstance no.(ii) is concerned, the
learned trial Court came to hold that the evidence of P.W.6 and
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P.W.23 that they had seen the accused persons taking liquor in
the varandah of the house of Manu Mian at about 12 p.m. or
12.30 p.m. might be a circumstance against the accused
persons, but it cannot be safely concluded that all the accused
persons were the authors of the crime and it is not sufficient to
connect accused Sk. Abid Alli that he was also involved in the
crime as possibility cannot be ruled out that he might have left
the company of appellants Sk. Asif Alli and Sk. Akil Alli after
taking liquor in the varandah of the house of Manu Mian.
So far as the circumstance no.(iii) is concerned, the
learned trial Court held that the evidence of P.W.5 that he had
seen the appellants standing near the house of Sk. Khairuddin is
a circumstance to connect the appellants with the crime. Since
they were planning to lift the victim on the way of her return,
they might be worried and nervous.
So far as the circumstance no.(iv) is concerned, the
learned trial Court held that mere evidence of P.W.1 that the
accused Sk. Abid Alli was seen going towards village Kolta in a
Hero Honda Activa scooty along with appellant Sk. Asif Alli and
Sk. Karim Alli is not sufficient to hold that accused Sk. Abid Alli is
also responsible for the crime along with the appellants and it
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cannot be safely concluded that the accused Sk. Abid Alli is also
involved in the crime.
So far as the circumstance no.(v) is concerned, the
learned trial Court held that detection of right index finger print
of appellant Sk. Asif Alli on Aska 40 liquor bottle recovered from
the spot clearly proved his presence at the spot i.e. in the house
of Sk. Khairuddin and his involvement in the alleged crime
against the victim.
So far as the circumstance no.(vi) is concerned, the
learned trial Court held that absconding of appellant Sk. Asif Alli
from 21.08.2014 to 05.09.2014 is a strong circumstance against
him which completes the chain against him to hold that he is one
of the authors of crime along with appellant Sk. Akil Alli.
However, it was held that the absconding of Sk. Abid Alli from
21.08.2014 to 05.09.2014 cannot be regarded as a strong
circumstance against him in the absence of any other substantial
circumstance to complete the chain of circumstances to hold that
he was one of the authors of the crime.
The learned trial Court held that the prosecution has
successfully established the circumstances against the appellants
and the chain of evidence is so complete as not to leave any
reasonable ground for the conclusion consistent with their
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innocence and the facts so established against them are
consistent only with hypothesis of the guilt of the appellants and
in all human probability, they had committed the ghastly act and
responsible for the crime against the deceased. However, it was
held that the prosecution has failed to prove the chain of
circumstances against the accused Sk. Abid Alli to hold him as
one of the authors of the crime. Taking into account the evidence
of the doctor (P.W.25) and the post mortem report (Ext.19)
findings so also the chemical examination report (Ext.25) and
the ocular evidence of the witnesses (P.Ws.1, 2, 3, 4, 7 & 15)
and also the evidence of the doctor (P.W.21) who examined the
deceased first in a senseless condition, the learned trial Court
held that all the circumstances taken together made it clear that
the appellants had committed rape on the deceased who was
under twelve years of age and that the deceased was subjected
to gang rape. Accordingly, while acquitting the accused Sk. Abid
Alli of all the charges, found the appellants guilty under sections
302/376-A/376-D of the I.P.C. and section 6 of POCSO Act.
The learned trial Court after holding the appellants
guilty under various offences, on the very day also heard on the
question of sentence and came to hold that the appellants
ravished the deceased who was a minor girl aged about six years
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and the offences are serious and heinous in nature and against
the norms of a healthy society and it revealed a dirty and
perverted mind of human beings who had no control over their
carnal desires. The number of injuries found on the deceased
showed that she was mercilessly ravished and killed to satisfy
their carnal desire. Taking into account the criminal antecedents
of the appellant Sk. Asif Alli, it was held that after being released
on bail on 20.08.2014 in a case under section 307 of I.P.C., he
committed the offences in the present case on 21.08.2014 and
thus there is no chance of his reformation. It was further held
that the appellants had taken away the deceased, who was a
minor girl aged about six years, with deliberate intention in order
to commit rape and murder and therefore, it comes within the
category of rarest of rare case warranting capital punishment to
meet the ends of justice.
Submission of parties:
7. Sk. Zafarulla, learned counsel for the appellants
argued that out of six circumstances jotted down by the learned
trial Court, circumstances nos. (iv), (v) and (vi) are not
applicable for the appellant Sk. Akil Alli and circumstances nos.
(ii) & (iii) are not so clinching against the said appellant and
therefore, basing only on circumstance no. (i) i.e. the last seen
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evidence as adduced by P.W.17, it would be too risky to convict
the appellant Sk. Akil Alli under any of the offences charged.
According to him, the sole witness P.W.17 who deposed about
the last seen being a child witness, cannot be relied upon as he
has exaggerated his version by naming two accused persons for
the first time in Court which shows that he had been tutored to
speak such names. Though P.W.17 stated that he had disclosed
about the appellants taking away the deceased before his mother
but the prosecution did not choose to examine the mother of
P.W.17. Similarly P.W.17 stated that he had disclosed also
before his tuition Miss (P.W.26) but she has also not supported
the prosecution case, for which she has been declared hostile. He
placed reliance in the case of Bhagwan Singh & others -Vrs.-
State of M.P. reported in (2003) 3 Supreme Court Cases
21 wherein it is held that evidence of child is required to be
evaluated carefully because he is an easy prey to tutoring.
The learned counsel further argued that the second
circumstance that the appellants were seen taking liquor on the
verandah of the house of one Manu Mian and gossiping among
themselves on the date of occurrence at about 12 p.m. to 12.30
p.m. along with accused Sk. Abid Alli (acquitted) and Sk. Abdul
Karim Alli (absconder) which was two hours before the time of
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occurrence as deposed to by P.W.6 and P.W.23 cannot be itself a
clinching evidence, particularly when as per the evidence of
P.W.6, the accused persons used to take liquor in the verandah
of Manu Mian regularly.
The learned counsel further argued that so far as the
third circumstance regarding the appellants were found
trembling, worried and nervous near the house of Sk. Khairuddin
is concerned, the finding of the learned trial Court that both the
appellants were planning to lift the deceased on the way of her
return for which they might be looking worried and nervous is
totally a hypothetical finding, which cannot be construed as a
conclusive circumstance.
It is argued that so far as the fourth circumstance is
concerned, the evidence of P.W.1 that he along with 40-50
persons were in the field of Akhandalmani when he found the
appellant Sk. Asif Alli, accused Sk. Abid Alli (acquitted) and Sk.
Abdul Karim Alli (absconding) to be going towards village Kolta in
a red colour Activa is not supported by any other witnesses. The
evidence of P.W.1 indicates that after seeing the accused
persons going towards village Kolta, he came to know about the
missing of the deceased and also came to the house of Sk.
Khairuddin where the body of the deceased was detected lying in
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a naked condition with injuries and since he was the relative
brother of the father of the deceased so also the husband of the
informant, it was expected of him to disclose about what he had
seen before them at least after P.W.17 stated about the
appellants lifted away the deceased while she was returning
purchasing chocolates and therefore, it is very difficult to accept
the evidence of P.W.1 and utilise this circumstance against the
appellant Sk. Asif Alli.
The learned counsel argued that so far as the fifth
circumstance i.e. the detection of finger print of right index
finger of the appellant Sk. Asif Alli from Aska 40 bottle recovered
from the spot is concerned, the two seizure witnesses i.e., P.W.6
& P.W.24 have not specifically stated regarding the seizure of
Aska 40 bottle. Similarly, though the evidence of the I.O.
(P.W.27) is that there was collection of chance finger prints from
Aska 40 bottles by the Scientific Officer which were developed
with white powder and marked as Exts.A, B & B-1, but the
concerned Scientific Officer was not examined during trial. It is
argued that the finger print expert who prepared the report has
not been examined but the report has been simply marked as
Ext.26 by the I.O. (P.W.27). Even the Aska 40 bottles in which
three chance finger prints were detected and it was developed,
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were not produced in Court during trial to be marked as M.O. It
is further argued that as per the finger print examination report
marked as Ext.26, the chance prints marked as 'A & B-1' said to
have been detected on different Aska 40 bottles were found to
be partial, faint, smudged and devoid of required number of
clear ridge details for comparison and opinion and for such
reason, no definite opinion could be furnished in respect of
chance prints marked as 'A & B-1', however only chance print
marked as 'B' said to have been detected on Aska 40 liquor
bottle tallied with specimen print marked 'X' said to be the right
index finger print of appellant Sk. Asif Alli @ Md. Asif Iqbal.
Learned counsel argued that the finding as per Ext.26 was not
put to the appellant Sk. Asif Alli in his accused statement to
afford him an opportunity to explain the same and therefore, it
must be completely excluded from consideration and cannot be
utilised against him as one of the circumstances.
The learned counsel further argued that the sixth
circumstance i.e. the absconding of the appellant Sk. Asif Alli
from the village cannot be said to be such a strong circumstance
which without the aid of other clinching circumstantial evidence
can form a chain so complete to arrive at the conclusion that he
is guilty of the offences charged and therefore, it is a fit case
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where benefit of doubt should be extended in favour of the
appellants. He further argued relying on the decision of the
Hon'ble Supreme Court in the case of Shankar Kisanrao Khade
-Vrs.- State of Maharashtra reported in (2013) 55 Orissa
Criminal Reports (SC) 623 that in the event the appellants are
found guilty, in view of their age, family background and the
reports received from different authorities as per the orders of
this Court, the death sentence should be commuted to life
imprisonment.
8. Mr. Bibhu Prasad Tripathy, learned Additional
Government Advocate, on the other hand supported the
impugned judgment and argued that the evidence of last seen as
deposed to by P.W.17 is very natural and convincing and even
though he is a child witness, but the learned trial Court after
putting some questions found that he was able to answer the
questions rationally and therefore, declared him to be a
competent witness. The evidence of P.W.17 having not been
shaken in the cross-examination and being corroborated by the
evidence of P.Ws.2, 3, 7 & 15 before whom he made disclosure
about the occurrence, the learned trial Court has rightly placed
reliance on such evidence. Reliance was placed on the decisions
of the Hon'ble Supreme Court in case of Panchhi & others
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-Vrs.- State of U.P. reported in (1998) 7 Supreme Court
Cases 177 and State of Madhya Pradesh -Vrs.- Ramesh &
another reported in (2011) 4 Supreme Court Cases 786.
According to Mr. Tripathy, the last seen evidence adduced by
P.W.17 in the factual scenario is very relevant as the place of
lifting of the deceased by the appellants was very close to the
place from where her body was recovered in a naked condition
having injuries and the appellants have failed to explain what
they did with the deceased after taking her while she was
coming with P.W.17 and when they parted with the company of
the deceased. He placed reliance in the case of Ram Gopal
-Vrs.- State of Madhya Pradesh reported in (2023) 5
Supreme Court Cases 534. Reliance was also placed in the
decision of the Hon'ble Supreme Court in the case of
Somasundaram @ Somu -Vrs.- State reported in (2020) 7
Supreme Court Cases 722.
The learned counsel for the State further argued that
the evidence of the witnesses relating to taking of liquor by the
appellants and the other accused persons on the verandah of
Manu Mian prior to the occurrence and the trembling, worried
and nervous condition of the appellants near the spot house are
very clinching and such evidence has not been shattered in the
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cross-examination. He submitted that the detection of finger
print of Sk. Asif Alli from Aska 40 bottle which was seized from
the spot has been rightly utilised by the learned trial Court
against the said appellant and non-examination of finger print
expert and non-production of Aska 40 bottles for marking as
M.Os. cannot be a ground to discard such evidence. Reliance was
placed on the decision of the Hon'ble Supreme Court in case of
Shri Phool Kumar -Vrs.- Delhi Administration reported in
(1975) 1 Supreme Court Cases 797. It is argued that even if
no direct questions have been put to the appellant Sk. Asif Alli
with regard to matching of one chance finger print from Aska 40
bottle recovered at spot marked as 'B' with his specimen finger
print marked as 'X', the same cannot be a ground not to utilise it
as an incriminating circumstance. Reliance was placed on the
decisions of the Hon'ble Supreme Court in the case of Paramjit
Singh -Vrs.- State of Uttarakhand reported in A.I.R. 2011
S.C. 200 and Nar Singh -Vrs.- State of Haryana reported in
(2015) 1 Supreme Court Cases 496.
It is argued that the learned trial Court has rightly
held the chain of circumstances to be complete pointing towards
the guilt of the appellants and therefore, the criminal appeals
preferred by the appellants being devoid of merits should be
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dismissed. He further argued that in view of the age of the
deceased, the manner in which she was lifted while coming with
her cousin brother (P.W.17) after purchasing chocolates in the
broad day light and subsequently found in a naked condition and
what had been done with her in a devilish manner as would be
evident from the post mortem report finding, the learned trial
Court was quite justified in imposing death sentence on the
appellants. He placed reliance in the cases of Ravi -Vrs.- State
of Maharashtra reported in (2019) 9 Supreme Court Cases
622, Manoharan -Vrs.- State reported in (2019) 7
Supreme Court Cases 716, Laxman Naik -Vrs.- State of
Orissa reported in (1994) 3 Supreme Court Cases 381 and
Dhananjoy Chatterjee -Vrs.- State reported in (1994) 2
Supreme Court Cases 220.
Principle for appreciating the case based on circumstantial
evidence:
9. There is no dispute that there is no direct evidence
as to who committed the rape and murder of the deceased and
how. The prosecution case hinges on circumstantial evidence. It
is well established rule of criminal justice that fouler the crime,
the higher should be the degree of proof. A moral opinion
howsoever strong or genuine cannot be a substitute for legal
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proof. When a case is based on circumstantial evidence, a very
careful, cautious and meticulous scrutinisation of the evidence is
necessary.
In the case of Sharad Birdhichand Sarada -Vrs.-
State of Maharashtra reported in A.I.R. 1984 S.C. 1622, it
is held that the circumstances from which the conclusion of guilt
is to be drawn against an accused should be fully established.
The facts so established should be consistent with the hypothesis
of the guilt of the accused and they should not be explainable on
any other hypothesis except that the accused is guilty. The
circumstances should be of conclusive nature and tendency.
They should exclude a brief possible hypothesis except the one
to be proved. 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 in all human
probabilities that the act must have been done by the accused.
These five golden principles for appreciation of a case based on
circumstantial evidence have been named as 'Panchsheel'. In the
case of Gambhir -Vrs.- State of Maharashtra reported in
A.I.R. 1982 S.C. 1157, the Hon'ble Supreme Court held that
the circumstantial evidence should not only be consistent with
the guilt of the accused but should be inconsistent with his
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innocence. In the case of Jaharlal Das -Vrs.- State of Orissa
reported in (1991) 4 Orissa Criminal Reports (SC) 278, the
Hon'ble Supreme Court held that it is to be borne in mind as a
caution that in cases depending largely upon circumstantial
evidence, there is always a danger that the conjecture or
suspicion may take the place of legal proof and such suspicion
howsoever strong cannot be allowed to take the place of proof.
The Court has to be watchful and ensure that conjectures and
suspicions do not take the place of legal proof. The Court must
satisfy itself that the various circumstances in the chain of
evidence should be established clearly and that the completed
chain must be such as to rule out a reasonable likelihood of the
innocence of the child.
In the light of legal position about the circumstantial
evidence, it is to be examined whether the circumstantial
evidence in the instant case satisfies the requirements of law.
The first three circumstances relied upon by the trial
Court is common to both the appellants to be discussed first,
which are as follows:-
(i) 'Last seen' theory i.e. the appellants and
the deceased were last seen together;
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(ii) Conduct of the appellants i.e. the
appellants were seen taking liquor in the
verandah of the house of one Manu Mian and
gossiping among themselves on 21.08.2014 at
about 12.00 p.m. to 12.30 p.m.;
(iii) The appellants were found trembling,
worried and nervous near the house of Sk.
Khairuddin;
First Circumstance : 'Last seen' theory i.e. the appellants
and the deceased were last seen together:
10. On this circumstance, the relevant witness is P.W.17,
the cousin brother of the deceased. He was aged about seven
years when he deposed in Court on 04.02.2016. He stated that
the informant (P.W.7) was his aunt and the deceased was his
sister and on the date of occurrence, when he along with the
deceased was returning after purchasing some chocolates, on
the way appellant Sk. Asif Alli asked the deceased as to whose
daughter she was, to which the deceased replied that she was
the daughter of Taz and then Sk. Akil Alli gagged the mouth of
the deceased and the appellant Sk. Asif Alli lifted the deceased
and took her away. He further stated that the accused Abid (Sk.
Abid Alli) and Karim (Sk. Abdul Karim Alli) were along with the
appellants. He stated to have disclosed the fact to his mother,
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tuition Miss (P.W.26) so also to the informant (P.W.7) and to the
police.
Admittedly, the mother of P.W.17 has not been
examined and the tuition Miss (P.W.26) has not supported the
prosecution case.
Though P.W.17 implicated accused persons Abid and
Karim, but it has been confronted to him and proved through the
I.O. (P.W.27) that he has not stated in his statement recorded
under section 161 of Cr.P.C. that the accused persons Abid and
Karim were present when the appellants lifted away the
deceased. He further stated to have been to the shop to
purchase chocolates with the deceased at about 2.00 p.m. and
that they were returning home at about 3.00 p.m. He stated not
to have met any known person when they had been to purchase
chocolates and were returning home. Thus the implication of
accused Abid (Sk. Abid Alli) and Karim (Sk. Abdul Karim Alli) was
made by P.W.17 for the first time in Court, which was more than
a year and five months after the occurrence.
P.W.7 has stated that when they enquired from
P.W.17, he disclosed that while he along with the deceased was
returning from the shop after purchasing chocolates, appellant
Sk. Akil Alli called the deceased and gagged her mouth and
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appellant Sk. Asif Alli lifted her and took her. Thus P.W.17 has
not implicated accused Abid and Karim to be in the company of
the appellants before P.W.7 and that is how in the first
information report (Ext.3) lodged by P.W.7, the names of
accused Abid and Karim did not find place. In the F.I.R., P.W.7
has mentioned that when she asked P.W.17, he disclosed that
while returning home, the appellants lifted away the deceased
gagging her mouth.
P.W.2 has also stated that P.W.17 disclosed before
them that the appellant Sk. Akil Alli gagged the mouth of the
deceased and appellant Sk. Asif Alli lifted her away and thus,
P.W.17 has not implicated accused persons Abid and Karim
before P.W.2.
Thus, it is apparent that P.W.17 has neither disclosed
before P.W.2 and P.W.7 about any role played by the accused
persons Abid and Karim nor he has stated before the I.O. in his
previous statement about their presence at the spot when the
deceased was lifted and taken away by the appellants and for
the first time, such a statement has been made by him during
trial.
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Whether P.W.17 was a competent witness to testify?
10.1. P.W.17 is a child witness and aged about seven
years. Thus, in view of section 118 of the Evidence Act, it is to
be seen whether he was a competent witness to testify.
In the case of P. Ramesh -Vrs.- State reported in
(2019) 20 Supreme Court Cases 593, the Hon'ble Supreme
Court held that the trial Judge was required to determine as to
whether the child witness was in a fit and competent state of
mind to depose and was able to understand the purpose for
being present on the occasion. Prior to the recording of evidence
of a child witness, the trial Court must undertake the exercise of
posing relevant questions to determine the capacity of the child
witness to provide rational answers. This exercise would allow
the Court to determine whether the child has the intellectual and
cognitive skills to recollect and narrate the incidents of the crime.
Section 118 of the Evidence Act, 1872 deals with the
competence of a person to testify before the Court. Section 4 of
the Oaths Act, 1969 requires all witnesses to take oath or
affirmation, with an exception for child witnesses under the age
of twelve years. Therefore, if the Court is satisfied that the child
witness below the age of twelve years is a competent witness,
such a witness can be examined without oath or affirmation. It is
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further held that 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
can be taken that she/he is a competent witness to be examined.
Before recording the evidence of P.W.17, the learned
trial Judge put some formal questions to him like his name,
father's name, name of the school, what was the place where he
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had come and the purpose in coming to the Court. Since P.W.17
answered all the questions correctly, the learned trial Judge
noted down that the witness is able to answer the questions
rationally and therefore, he is a competent witness. However,
oath was not administered to him as he was seven years of age.
No challenge has been made by the learned counsel
for the appellants regarding the competency of P.W.17 to
depose.
The admissibility of evidence or acceptability of
evidence of a child witness is not solely dependent on his
competency. It is well settled that a child witness is prone to
tutoring and there is every possibility that under influence, such
witness might have been posed to give out a version by persons
who may have influence on him. Thus, the testimony of a child
witness should be evaluated more carefully and only be accepted
after greatest caution and circumspection.
In the cross-examination, suggestion has been given
to P.W.17 that he was deposing falsehood being tutored by
P.W.7 and P.W.15 to which he denied. In the case of Ramesh
(supra), it is held by the Hon'ble Supreme Court that deposition
of a child witness may require corroboration but in case his
deposition inspires the confidence of the Court and there is no
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embellishment or improvement therein, the Court may rely upon
his evidence. The evidence of a child witness must be evaluated
more carefully with greater circumspection because he is
susceptible to tutoring. Only in case there is evidence on record
to show that the child has been tutored, the Court can reject his
statement partly or fully. However, an inference as to whether
child has been tutored or not, can be drawn from the contents of
his deposition. In the case of Panchhi (supra), the Hon'ble
Supreme Court held that it is not the law that if a witness is a
child, his evidence shall be rejected, even if it is found reliable.
The law is that evidence of a child witness must be evaluated
more carefully and with greater circumspection because a child is
susceptible to be swayed by what others telling and thus a child
witness is an easy to prey to tutoring. Courts have laid down
that evidence of a child witness must find adequate
corroboration before it is relied on. It is more of a rule of
practical wisdom than law.
The main plank of argument by the learned counsel
for the appellants is that there is every possibility of tutoring to
him and that is the reason why he implicated two accused
persons for the first time in Court i.e. accused Abid and Karim
even though he has not implicated them before police so also
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while making disclosure about the occurrence before P.W.2 and
the informant (P.W.7). The question that now crops up for
consideration as to whether the evidence of P.W.17 is to be
totally rejected as he has implicated two accused persons i.e.
Abid and Karim for the first time during trial. The maxim falsus in
uno falsus in omnibus i.e. false in one thing false in all is not a
sound rule to apply in the condition in our country. It means that
if any witness makes a statement which may be incorrect to
some extent, it does not inevitably follow that the other portion
of his statement, which is correct, has also to be disbelieved. It
is very difficult to find a witness whose evidence does not contain
a grain of untruth or at any rate exaggeration, embroideries or
embellishments. The Courts should make efforts to disengage
the truth from falsehood, and to shift the grain from the chaff
and where the truth and falsehood are so intermingled so as to
make it impossible to separate them, the evidence has to be
rejected in entirety. It is a misconception that a witness has to
be believed in toto or disbelieved in toto. The Court must
appraise the evidence to see as to what extent it is worthy of
acceptance and merely because in one respect, the Court
considers it insufficient to rely the testimony of a witness, it does
not necessarily follow as a matter of fact that it must be
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discarded in all respect as well. Therefore, implication of two
accused persons namely, Abid and Karim for the first time in
Court during trial by P.W.17 itself cannot be a ground to
disbelieve his evidence rather his evidence is required to be
carefully assessed and to see if there is any corroboration to his
evidence or not. The possibility of coming to his knowledge
regarding the involvement of accused persons namely, Abid and
Karim afterwards from other sources cannot be ruled out and
therefore, he might have been tempted to speak against them in
the witness-box. Bereft of implication of two accused Abid and
Karim, nothing has been brought out in the cross-examination to
discard his evidence, rather his evidence is very natural, clear,
cogent and trustworthy. P.W.7 has stated that the deceased had
gone to the shop to purchase chocolate along with P.W.17.
P.W.19 has stated that on the date of occurrence at about 2 p.m.
to 2.30 p.m. the deceased and P.W.17 had come to his
stationery shop for chocolate and took chocolate and went away.
The evidence of these two witnesses i.e. P.W.7 and P.W.19 lend
corroboration to the evidence of P.W.17 that the latter was with
the deceased at the time of occurrence. Thus the presence of
P.W.17 with the deceased, his conduct in disclosing before others
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what happened with the deceased is relevant and admissible as
res gestae under section 6 of Evidence Act.
In the case of Anjan Kumar Sarma and others
-Vrs.- State of Assam reported in (2017) 14 Supreme
Court Cases 359, it is held that the circumstance of last seen
together cannot by itself form the basis of holding the accused
guilty of the offence. In a case where other links have been
satisfactorily made out and the circumstance pointed to the guilt
of the accused, the circumstance of last seen together and
absence of explanation would provide an additional link which
completes the chain and in the absence of proof of other
circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made the basis of
conviction.
In the case of Ram Gopal (supra), it is held that
once the theory of 'last seen together' was established by the
prosecution, the accused was expected to offer some explanation
as to when and under what circumstances he had parted the
company of the deceased. It is true that the burden to prove the
guilt of the accused is always on the prosecution, however, in
view of section 106 of the Evidence Act, when any fact is within
the knowledge of any person, the burden on of proving that fact
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is upon whom. Of course, section 106 of the Evidence Act is
certainly not intended to relieve the prosecution of its duty to
prove the guilt of the accused, nonetheless, it is also equally
settled legal position that if the accused does not throw any light
upon the facts which are proved to be within the special
knowledge, in view of section 106 of the Evidence Act, such
failure on the part of the accused may be used against the
accused as it may provide an additional link in the chain of
circumstances required to be proved against him. In the case
based on circumstantial evidence, furnishing or non-furnishing of
the explanation by the accused would be a crucial fact, when the
theory of last seen together as propounded by the prosecution
was proved against him. Though the last seen theory as
propounded by the prosecution in a case based on circumstantial
evidence may be a weak kind of evidence by itself to base
conviction solely on such theory, when the said theory is proved
coupled with other circumstances such as the time when the
deceased was last seen with the accused and the recovery of the
corpse being in very close proximity of time, the accused does
owe an explanation under section 106 of the Evidence Act with
regard with the circumstances under which death might have
taken place. If the accused offers no explanation or furnishes a
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wrong explanation, absconds, motive is established and some
other corroborative evidence in the form of recovery of weapon
etc. forming a chain of circumstance is established, the
conviction could be based on such evidence.
In the case of Somasundaram @ Somu (supra),
where specific charges under sections 347/365/364 of the I.P.C.
were framed, it is held by the Hon'ble Supreme Court that the
abduction followed by murder in appropriate cases can enable a
Court to presume that the abductor is the murderer. The
principle is that after abduction, the abductor would be in a
position to explain what happened to his victim and if he failed to
do so, it is only natural and logical that an irresistible inference
may be drawn that he has done away with the hapless victim.
Section 106 of the Evidence Act would come to the assistance of
the prosecution.
In the case in hand, however, there is neither any
charge of abduction nor any charge of illegal confinement. In the
accused statement, the learned trial Court has put specific
questions to the appellants on the evidence of P.W.17 but except
stating that the same was false, nothing further has been stated
by the appellants.
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Therefore, I am of the humble view that the learned
trial Court has rightly placed reliance on the evidence of P.W.17
and held that the last seen theory has been established by the
prosecution. The evidence of P.W.17 that the appellants and the
deceased were last seen together when both of them lifted away
the deceased while she was returning with him after purchasing
chocolates from the village shop can be used as one of the
incriminating circumstance against the appellants as has been
rightly done by the learned trial Court, but in my humble view,
such circumstance of last seen in itself cannot be held sufficient
to record the finding of guilt of the appellants.
Thus the first circumstance i.e. last seen theory even
though proved by the prosecution has to be taken into account
along with the other circumstances to see whether the chain of
evidence has been established clearly and that it forms a
completed chain.
Second Circumstance: Conduct of the appellants in taking
liquor in the verandah of the house of one Manu Mian:
11. The second circumstance relied upon by the
prosecution is that on 21.08.2014 at about 12.00 p.m. to 12.30
p.m., the appellants were seen taking liquor in the verandah of
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the house of one Manu Mian and gossiping among them which is
being deposed to by P.W.6 and P.W.23.
P.W.6 has stated that on the occurrence day, while
he was coming to his village Krushnanandapur, he saw the
appellants and the accused persons namely, Sk. Abid and Sk.
Karim were taking liquor at about 12.30 noon on the varandah of
the house of Manu Mian and they were talking with each other.
In the cross-examination, he has stated that the accused
persons used to take liquor in the varandah of Manu Mian
regularly. P.W.23 has also stated to have seen the appellants
and the accused persons namely, Sk. Abid Alli and Sk. Karim Alli
taking liquor in the varandah of Manu Mian and gossiping among
them on the date of occurrence at about 12 noon.
The time when the appellants and the two other
accused persons were seen taking liquor was much before the
time when P.W.17 with the deceased came to purchase
chocolates and after purchasing were returning home. P.W.17
has stated that he had been to the shop with the deceased to
purchase chocolate at about 2 p.m. and was returning at about 3
p.m. Similarly P.W.19 has stated that on the date of occurrence
at about 2 p.m. to 2.30 p.m., the deceased and P.W.17 had
come to his stationery shop for purchasing chocolate. As
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deposed to by P.W.6, the appellants and the accused persons
namely, Sk. Abid and Sk. Karim used to take liquor in the
varandah of Manu Mian regularly. Learned trial Court has held
that from this circumstance, it cannot be safely concluded that
all the accused persons were the authors of the crime. It was
further held that the possibility of accused Sk. Abid Alli leaving
the company of the appellants after taking liquor from the
varandah of the house of Manu Mian cannot be ruled out.
Thus, the second circumstance i.e. the appellants
were seen taking liquor in the verandah of the house of one
Manu Mian and gossiping among themselves and the other two
accused persons were also with them, as proved by the
prosecution is not by itself sufficient to connect the appellants
with the crime. It is to be considered along with the other proved
circumstances to see whether the chain of evidence is so
complete as to unerringly point towards the guilt of the
appellants.
Third Circumstance : Appellants were found trembling,
worried and nervous near the house of Sk. Khairuddin:
12. The third circumstance i.e the appellants were found
trembling, worried and nervous near the house of Sk. Khairuddin
is concerned, P.W.5 is the sole witness on this circumstance.
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P.W.5 has stated that on the date of occurrence at
about 2 p.m. to 2.30 p.m. while he was returning from Masjid
after Namaz, he found the appellants near the house of Sk.
Khairuddin and they were found trembling, looking worried and
nervous and then he went to his house.
The learned trial Court held that since the appellants
were planning to lift the victim on the way of her return, they
might be worried and nervous. It is nothing but a hypothetical
conclusion. There is nothing on record that the deceased and
P.W.17 had passed by that way by that time to purchase
chocolates from the stationery shop of P.W.19 and that the
appellants had seen them. According to P.W.17, he had been to
the shop with the deceased to purchase chocolate at about 2
p.m. and was returning at about 3 p.m.
The conclusion arrived at should be sensible and
reasonable. It must be based on reasons rather than
imaginations and emotions. P.W.5 stated that he was a close
relative of the deceased and the deceased belonged to her
family. It is true that related witness is not necessarily a false
witness, but when P.W.5 was just passing by that way near the
house of Sk. Khairuddin after Namaj in Masjid and there is no
evidence how much time he observed both the appellants and
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found them trembling, looking worried and nervous, even if the
evidence of P.W.5 is accepted, it cannot be said with certainty
that it was before the lifting of the deceased as held by the
learned trial Court. Trembling, looking worried and nervousness
can be for a variety of reasons and it cannot be said with
certainty that it was only for the reasons assigned by the trial
Court. The body of the deceased was located on the Taza of the
house of Sk. Khairuddin at about 5.30 p.m. as stated by the
informant (P.W.7) and the appellants were found near the house
of Sk. Khairuddin at about 2 p.m. to 2.30 p.m. as stated by
P.W.5.
Thus, the third circumstance as proved by the
prosecution, i.e the appellants were found trembling, worried
and nervous near the house of Sk. Khairuddin, in my humble
view is not so clinching by itself to arrive at the conclusion as
reached by the trial Court or sufficient to connect the appellants
with the crime and it is to be considered along with the other
proved circumstances.
Summed up : Circumstances against the appellant Sk. Akil
Alli:-
13. The three circumstances which are appearing against
appellant Sk. Akil Alli as discussed above, I am of the humble
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view that though through the evidence of P.W.17, the
prosecution has successfully proved that on the date of
occurrence in the afternoon, both the appellants lifted away the
deceased while she was returning after purchasing chocolates
and thus the appellants and the deceased were last seen
together, but such circumstance of last seen coupled with the
circumstance that the appellant Sk. Akil Alli was seen taking
liquor in the verandah of the house of Manu Mian with appellant
Sk. Asif Alli and the other two accused i.e. Sk. Abid Alli and Sk.
Abdul Karim Alli so also the circumstance that he along with the
appellant Sk. Asif Alli was found trembling, worried and nervous
near the house of Sk. Khairuddin in the afternoon on the date of
occurrence do not form a complete chain to record the finding
that it is consistent only with the hypothesis of guilt of the
appellant Sk. Akil Alli and totally inconsistent with his innocence
and prove the charges against him beyond all reasonable doubt.
The circumstances proved raised an amount of suspicion, but
suspicion, howsoever strong, cannot be a substitute for proof of
the guilt of the appellant beyond reasonable doubt.
There is no evidence against appellant Sk. Akil Alli
that he tried to flee or abscond from his village. He was
apprehended by local people and handed over to the I.O.
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(P.W.27) on the night of occurrence. The appellant was
examined by the doctor (P.W.28) at C.H.C., Manijanga on police
requisition and he was found capable of committing sexual
intercourse and his pubic hair and sample semen were collected
by the doctor and kept in sealed vials and handed over to the
escorting constable, which in turn were seized by the I.O.
(P.W.27), who also seized the wearing apparels of the appellant
i.e. blue colour check lungi and one half vest on being produced
by him as per seizure list Ext.6. The forwarding report for
chemical examination, which was marked as Ext.24, would
indicate that the check lungi of the appellant Sk. Akil Alli was
marked as Ext.'P', his half vest was marked as Ext.'P-1', pubic
hair of the appellant was marked as Ext.'Q' and sample semen of
the appellant collected in a sealed bottle was marked as Ext.'Q-
1'. The nature of examination sought for so far as these four
exhibits, which relate to the appellant Sk. Akil Alli were (i)
whether Exts.'P' & 'P-1' contained any blood stain and if so,
whether it tallied with Exts.'B', 'E' & 'L' i.e. the wearing apparels
of the deceased; (ii) whether Exts.'P' and 'P-1' contained any
vaginal swab and if so, whether it tallied with Ext.'M-1' (vaginal
swab); (iii) whether any blood stain/seminal stain detected in
Ext.'A' i.e. the kantha seized from the spot and did it tally with
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59
Ext.'Q-1', (iv) whether the stains detected in Exts.'B' & 'L' i.e.
the wearing apparels of the deceased tallied with Ext.'Q-1' and
(v) whether Ext.'Q' tallied with any hair detected from Ext.'A'.
The chemical examination report (Ext.25) indicates that in
Exts.'P' & 'P-1', no blood, no semen and no vaginal secretion
stain were noticed and similarly in Ext.'Q', no blood and no
semen were noticed. So far as Ext.'Q-1' is concerned, it was
found to be deteriorated due to preservation in liquid state.
Admittedly, no finger print of the appellant Sk. Akil Alli was
found to be tallying with the chance finger prints detected on
Aska 40 liquor bottles found at the spot.
Therefore, from the three proved circumstances, it is
difficult to sustain the conviction of the appellant Sk. Akil Alli
under sections 302/376-A/376-D of the I.P.C. and section 6 of
the POCSO Act and accordingly, the same is hereby set aside
and the appellant is acquitted of all the charges.
14. Before proceeding further to discuss about the
remaining three circumstances, which are against Sk. Asif Alli @
Md. Asif Iqbal, it would be apt to discuss whether prosecution
has proved that the deceased was subjected to rape and she met
with a homicidal death.
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Whether the deceased was subjected to rape and she met
with a homicidal death:
14.1. The deceased was first detected on the Taza of the
house of Sk. Khairuddin by P.W.3 who found her in a naked
condition. P.W.2 stated to have noticed nail marks on the belly
and backside and knee of the victim and he also found blood
patches on the thigh. P.W.15 has stated that the victim was
recovered in a senseless and naked condition and she had
sustained bleeding injuries on her person including her genital.
P.W.7 has stated that she found the victim naked and senseless
when she was rescued from Taza of the house of Sk. Khairuddin.
She also found injuries on the chest, shoulder, below the ear,
back and knee of the deceased and she had sustained bleeding
injuries on her private part and there was dried blood in her
private part and that they covered the body of the deceased with
bed sheet and shifted her to Tendakunda Hospital. P.W.21 Dr.
Amrit Kumar Behera who was the Medical Officer in New
Tendakuda C.H.C. examined the deceased and he stated that
when some persons brought the deceased to him on 21.08.2014
at about 6.30 p.m., he found the deceased was in a senseless
condition having some nail marks on her neck and some marks
on the back. He also found redness with blood stain in her
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private part (in pubic area) for which he referred her to
S.C.B.M.C.H., Cuttack for further treatment. He proved the OPD
ticket vide Ext.18, which was seized by the I.O. as per seizure
list Ext.17. While the deceased was being shifted to the hospital
at Cuttack, on the way near Kandarpur, she died for which P.W.7
and others who were carrying her returned back to the village.
The inquest report marked as Ext.1 also indicates that the
deceased had sustained injuries on different parts of her body
including bleeding injuries on her vagina.
P.W.25 Dr. Saumya Ranjan Naik, Assistant Professor,
F.M.T., S.C.B.M.C.H., Cuttack conducted post mortem
examination over the dead body of the deceased on 22.08.2014
and noticed the following injuries :-
External injuries:
(i) Genital area found swollen and edematous
and fluid blood found coming out from the
vaginal opening. Labia Majora and labia minora
found contused, posterior commissure found
contused and lacerated. Vaginal opening found
stretched and the margins were seen contused
and lacerated. There was wide gaping of vaginal
cutlet and vaginal canal. Hymen found
completely lacerated, mostly on the posterior
aspect;
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(ii) Abrasion looking red (3 cm x 1 cm)
present on right breast;
(iii) Abrasion looking red (4 cm x 0.5 cm)
present on right side front of abdomen vertically
1 cm lateral to umbilicus;
(iv) Scratch abrasion (2 cm x 0.1 cm) present
on right side zygomatic area;
(v) Abrasion (0.7 cm x 0.2 cm) present on
middle of left pinna;
(vi) Abrasion (1 cm x 1 cm) on front of left
knee;
(vii) Abrasion (2 cm x 2 cm) on lateral aspect
of left knee;
(viii) Multiple scratch abrasions of length
varying from 1 cm to 5 cm present on left side
back of chest 6 cm below scapula;
(ix) Multiple small abraded contusions over an
area of abdomen at the level of LI (6 cm x 4 cm)
present on mid line;
(x) Multiple small abrasions (3 cm x 1 cm)
present on sacral area;
(xi) Multiple small abrasions present on left
scapula shoulder;
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(xii) Multiple small abrasions present on right
scapula;
(xiii) Multiple small abrasions present on front
and right side of neck.
On dissection:
Left side lateral wall of vaginal canal found
torn and lacerated and the margins were found
contused. About 200 fluid blood found within
pelvic cavity. Structures of the neck were found
intact without any extravasations of blood.
Stomach contained 300 grams partially digested
food particles without emitting any characteristic
odour, mucosa is healthy. All other organs were
intact and pale.
The doctor (P.W.25) has stated in his evidence that
external injuries nos.(ii) to (xiii) found on the dead body were
ante mortem in nature and might have been caused by hard and
blunt trauma or contact with hard and rough surface. He has
further opined that external injury no.(i) along with
corresponding internal injuries were ante mortem in nature and
consistent with forceful thrusting and could have been caused
due to penetration of male organ. As per his opinion, death of
the deceased was due to shock and hemorrhage as a result of
injuries to genital track which were fatal in ordinary course of
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nature. According to him, age of injuries were of fresh duration
at the time of death, time since death was within 12 to 24 hours
prior to autopsy and the death was within 12 to 24 hours prior to
autopsy and the death was homicidal in nature. During cross-
examination, P.W.25 has clearly denied the suggestion put to
him by the learned defence counsel by saying that the injuries
on the vagina were not possible by fall on hard surface or by
inserting a wooden substance in the vagina.
In view of the oral as well as medical evidence, I am
of the humble view that the deceased was subjected to rape and
on account of rape, external injuries were caused on different
parts of her body including injuries to genital track which were
fatal in ordinary course of nature and it also caused shock and
hemorrhage which resulted in her death and her death was
homicidal in nature. The learned counsel for the appellants has
not challenged this aspect though it is his contention that there
is insufficient evidence on record to hold the appellants liable for
such offences.
Remaining three circumstances:
15. The remaining three circumstances which are against
the appellant Sk. Asif Alli @ Md. Asif Iqbal are to be discussed
now.
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Fourth Circumstance : Appellant Sk. Asif Alli was found
leaving village Manu Mahala on the date of occurrence:
16. The fourth circumstance i.e. the appellant Sk. Asif Alli
was found leaving village Manu Mahala in a Hero Honda Activa
scooty on the date of occurrence i.e. on 21.08.2014 at about 6
p.m. with the accused Sk. Abid Alli and Sk. Abdul Karim Alli, has
been deposed to by P.W.1 Sk. Wamik Alli who is the sole witness
on this circumstance. He has stated that on the date of
occurrence in the afternoon, while he along with others were in
the field of Akhandalmani, they found the appellant Sk. Asif Alli
along with accused Sk. Abid Alli (acquitted) and Sk. Karim Alli
(absconding) were going towards village Kolta in a red colour
Activa. In the cross-examination, P.W.1 has stated that he went
to Akhandalmani field at about 4 p.m. and returned to his house
at about 5.20 p.m. He further stated that by the time of his
arrival at Akhandalmani field, around forty to fifty persons were
there. He further stated that he was examined by the police in
front of the house of the deceased on the night of occurrence.
It is the contention of the learned counsel for the
appellants that even though there are many others present at
Akhandalmani field, only P.W.1 was examined to prove this
circumstance. Learned counsel for the State submitted that in
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the matter of appreciation of evidence of witnesses, it is not the
number of witnesses but quality of evidence that is important.
Adverting to the contentions raised, law is well
settled that section 134 of the Evidence Act does not provide for
any particular number of witnesses and it would be permissible
for the Court to record a finding regarding any particular aspect
of the prosecution case on the evidence of a solitary witness if
his evidence is found to be credible, reliable, in tune with the
case of the prosecution and inspires implicit confidence. It is not
the quantity but quality of evidence adduced by the witness that
matters for determining the guilt or innocence of the accused.
The testimony of a sole witness must be confidence-inspiring and
beyond suspicion, thus, leaving no doubt in the mind of the
Court.
The evidence of P.W.1 who is related to the father of
the deceased as brother cannot be doubted on the ground of
relationship as related witnesses are not necessarily false
witnesses. Unless their evidence suffers from serious infirmity or
raises considerable doubt in the mind of the Court, it would not
be proper to discard their evidence straight away. Evidence of
P.W.1 has not been shattered or discredited by the defence in
spite of searching cross-examination. He disclosed before police
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what he had seen when he was examined on the night of
occurrence The leaving of village Manu Mahala by the appellant
Sk. Asif Alli along with the other two might not have been
noticed by others present in Akhandalmani field as they just
passed through that way. P.W.4 was present in Akhandalmani
field and he was playing football when he came to know about
the missing of the deceased but he has not stated about this
circumstance. Non-examination of other witnesses to prove the
same circumstance is immaterial.
After carefully assessing the evidence of P.W.1, I find
him to be a reliable witness and through his evidence, the
prosecution has successfully proved the fourth circumstance.
Fifth Circumstance : Detection of finger print of appellant
Sk. Asif Alli by State Finger Print Bureau from the Aska 40
bottle found at the spot:
17. The fifth circumstance relied upon by the prosecution
is that the right index finger print of the appellant Sk. Asif Alli
was detected by the State Finger Print Bureau from the Aska 40
bottle recovered from the spot.
P.W.27, the I.O. has stated that the scientific team
of S.F.S.L., Rasulgarh and staff of D.F.S.L., Jagatsinghpur
arrived at the spot on 22.08.2014 at 1.30 pm. and inspected the
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spot and as per seizure list Ext.2, three nos. of Aska 40 bottles
along with other articles were seized in presence of witnesses at
3.30 p.m. The seizure list Ext.2 though does not specifically
indicate seizure of Aska 40 bottles, but it indicates about seizure
of three nos. of glass bottles marked as Exts. 'J', 'J/1' and 'J/2'.
The I.O. (P.W.27) has further stated that during inspection of
spot by the Scientific Officer Chunuram Murmu, State F.S.L.,
Rasulgarh, Bhubaneswar, three chance finger prints were
detected from the bottles (Aska 40 bottles) by the Finger Print
Sub-Inspector, Jagatsinghpur and the chance finger prints were
developed with white powder and marked as Exts.'A', 'B' & 'B-1'.
Ext.2 also indicates in column no.2 regarding production of
different articles by Scientific Officer Chunuram Murmu, State
S.F.S.L., Rasulgarh, Bhubaneswar before the I.O. and the I.O.
has also stated that on 22.08.2014 at about 3.30 p.m. he seized
the articles after those were handed over to him by the S.F.S.L.
Officer.
P.Ws.6 & 24 are the witnesses to the seizure list
Ext.2. P.W.6 while proving his signature in seizure list Ext.2, has
stated about seizure of different articles as per the said seizure
list. P.W.24 has also stated about the seizure of articles by the
I.O. as per seizure list Ext.2 and he has also proved his signature
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thereon. Learned counsel for the appellants contended that
neither P.W.6 nor P.W.24 has specifically stated about the
seizure of three nos. of Aska 40 bottles under seizure list Ext.2.
Such a contention cannot be attached with any importance since
their evidence as seizure witnesses has not been shattered or
discredited by the defence rather it is getting corroboration from
the evidence of the I.O.
It is argued by the learned counsel for the appellants
that during trial, the prosecution has not examined the Scientific
Officer Chunuram Murmu or any other officer who assisted him
during the spot inspection and detected and developed three
chance finger prints from the Aska 40 bottles. The liquor bottles
were not produced in Court during trial and the photo images of
chance prints marked as A, B and B-1 in a CD along with their
photo enlargements on the basis of which Finger Print
Examination Report (Ext.26) was prepared were also not
produced during trial and therefore, no importance is to be
attached to the findings recorded by the Director, State Finger
Print Bureau, Rasulgarh, Bhubaneswar in Ext.26. Learned
counsel for the State on the other hand argued that since spot
inspection by the scientific officials is not in dispute which is
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otherwise proved by oral as well as documentary evidence, non-
examination of such officials is immaterial.
The evidence of the I.O. (P.W.27) indicates that on
05.09.2014, after he apprehended the appellant Sk. Asif Alli at
Bhubaneswar along with accused Sk. Abid Ali (acquitted), they
were sent to Medical Officer, C.H.C., Manijanga for necessary
medical examination and opinion. The escort party produced the
medical examination reports, biological exhibits collected from
the appellants in sealed vials which were seized and then the
appellant Sk. Asif Alli and accused Sk. Abid Ali were arrested on
06.09.2014 and forwarded to Court on that very day, which
would be evident from the order sheet dated 06.09.2014. The
evidence of the I.O. and the case records further indicate that
the specimen finger prints of Sk. Asif Alli and other accused
persons were collected and the I.O. made requisition to S.P.,
Jagatsingpur through FPSI, DFSL, Jagatsinghpur to send the
chance finger prints collected from Aska 40 bottles which were
transferred to a CD along with specimen ten digit finger print
slips of the suspects including the appellant Sk. Asif Alli to the
Director, State Finger Print Bureau, Rasulgarh, Bhubaneswar for
necessary examination and opinion and accordingly, the same
were dispatched through FPSI, Jagatsinghpur and the report
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(Ext.26) goes against the appellant Sk. Asif Alli. Non-
examination of Scientific Officer who detected and developed
chance finger prints and non-production of Aska 40 bottles in
Court during trial cannot be a ground to discard the evidenciary
value of Ext.26. No suggestion has been given by the defence to
the I.O. that there was no seizure of Aska 40 bottles from the
spot. Photo images of chance prints along with their photo
enlargements including CD and specimen finger prints are very
much available on record and those are part and parcel of
Ext.26, which indicates that the chance print marked as Ext.'B'
said to have been detected on Aska 40 liquor bottle tallied with
specimen print marked Ext.'X' said to be the right index finger
print of the appellant Sk. Asif Alli.
In the case of Phool Kumar (supra) on which
reliance was placed by the learned counsel for the State, it is
held that the clinching evidence against the appellant was his
thumb impression on the kunda of the cash box. It was
conclusively proved to be his on the opinion of the expert. The
report of the expert was used as evidence by the prosecution
without examining him in Court. Neither the Court thought it fit
nor the prosecution or the accused filed any application to
summon and examine the expert as to the subject matter of his
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report. The Court was bound to summon the expert if the
accused would have filed any such application for his
examination. That not having been done, the grievance of the
appellant apropos the report of the expert being used without his
examination in Court had no substance.
The examination of expert is crucial especially if
reliance is placed on the finger print report to suspect the guilt of
the accused. The I.O. has stated that the Scientific Officer, DFSL
finger print and team collected the finger prints of three accused
persons from the Sub-Jail, Jagatsinghpur after obtaining the
order of the Court. Specific questions have been put to the
appellant Sk. Asif Alli in the accused statement relating to
detection of Aska 40 liquor bottles during spot visit, visit of
scientific team of SFSL, Rasulgarh and staff of DFSL,
Jagatsinghpur to the spot and seizure of three numbers of Aska
40 bottles as per seizure list, but the appellant simply answered
that he could not say. Ext.26 has been marked on admission. No
application was filed from the side of accused persons to
summon the Scientific Officer or expert for his examination.
Therefore, non-examination of the Scientific Officer or the expert
who prepared the report cannot be a ground not to give
importance to Ext.26. It is correct that inadvertently no direct
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question has been put to the appellant Sk. Asif Alli on the finding
of Ext.26 in the accused statement, but it has been held by the
Hon'ble Supreme Court in the case of Paramjeet Singh (supra)
that the provisions of section 313 of Cr.P.C. make it obligatory
for the Court to question the accused on the evidence and
circumstances against him so as to offer him an opportunity to
explain the same, but, it would not be enough for the accused to
show that he has not been questioned or examined on a
particular circumstance, instead he must show that such non-
examination has actually and materially prejudiced him and has
resulted in the failure of justice. In other words, in the event of
an inadvertent omission on the part of the Court to question the
accused on any incriminating circumstance cannot ipso facto
vitiate the trial unless it is shown that some material prejudice
was caused to the accused by the omission of the Court.
In the case of Nar Singh (supra), contention was
raised from the side of the appellant that since Ballistic Expert
opinion was not put to the appellant in his statement recorded
under section 313 of Cr.P.C., it must be completely excluded
from consideration. The Hon'ble Court held that when the trial
Court is required to act in accordance with the mandatory
provisions of section 313 of Cr.P.C., failure on the part of the
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trial Court to comply with the mandate of the law, cannot
automatically enure to the benefit of the accused. Any omission
on the part of the Court to question the accused on any
incriminating circumstance would not ipso facto vitiate the trial,
unless some material prejudice is shown to have been caused to
the accused. It was further held that in so far as non-compliance
of mandatory provisions of section 313 of Cr.P.C., it is an error
essentially committed by the learned Sessions Judge. Since
justice suffers in the hands of the Court, the same has to be
corrected or rectified in the appeal. The question whether a trial
is vitiated or not depends upon the degree of the error and the
accused must show that non-compliance of section 313 of
Cr.P.C. has materially prejudiced him or is likely to cause
prejudice to him. Merely because of defective questioning under
section 313 of Cr.P.C., it cannot be inferred that any prejudice
had been caused to the accused, even assuming that some
incriminating circumstances in the prosecution case had been left
out. When prejudice to the accused is alleged, it has to be shown
that accused has suffered some disability or detriment in relation
to the safeguard given to him under section 313 of Cr.P.C. Such
prejudice should also demonstrate that it has occasioned failure
of justice to the accused. The burden is upon the accused to
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prove that prejudice has been caused to him or in the facts and
circumstances of the case, such prejudice may be implicit and
the Court may draw an inference of such prejudice. Facts of each
case have to be examined to determine whether actually any
prejudice has been caused to the appellant due to omission of
some incriminating circumstances being put to the accused.
Whenever a plea of non-compliance of section 313 of Cr.P.C. is
raised, it is within the powers of the appellate Court to examine
and further examine the convict or the counsel appearing for the
accused and the said answers shall be taken into consideration
for deciding the matter. If the accused is unable to offer the
appellate Court any reasonable explanation of such
circumstance, the Court may assume that the accused has no
acceptable explanation to offer. In the facts and circumstances of
the case, if the appellate Court comes to the conclusion that no
prejudice was caused or no failure of justice was occasioned, the
appellate Court will hear and decide the matter upon merits.
It is pertinent to note that live link was provided to
the jail where the appellants were lodged and they were
provided opportunity to see the entire hearing proceeding. One
learned State Counsel from the District Court also remained
present with them throughout the proceeding as per our
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direction to explain them the argument advanced and
interactions between the Bench and the learned counsel for the
respective parties. During course of hearing, when we expressed
our willingness to provide an opportunity to the appellant Sk.
Asif Alli to explain the finding of Ext.26 against him by way of
recording additional accused statement under section 313 of
Cr.P.C., if he so desires, the learned counsel for the appellants
after taking instruction was reluctant to avail such opportunity.
In the case in hand, the defence has not disputed the
visit of scientific team to the spot, the seizure of Aska 40 liquor
bottles from the spot on being produced by the Scientific Officer,
the detection and development of chance finger prints from such
bottles, the collection of specimen ten digit finger prints of the
appellant Sk. Asif Alli from jail and its dispatch to State Finger
Print Bureau, Bhubaneswar for examination. In fact, the same
has been proved through oral as well as documentary evidence.
The learned counsel for the appellant has failed to show as to
what material prejudice was caused to the appellant by the
omission of the Court to put direct question on Ext.26.
In view of the foregoing discussions, when chance
finger prints were detected and developed from the three Aska
40 liquor bottles found at the spot and one chance print marked
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'B' tallied with specimen right index finger print of the appellant
Sk. Asif Alli and there is no suspicious feature in it, the
prosecution can be said to have proved the fifth circumstance
against the appellant Sk. Asif Alli beyond all reasonable doubt. It
cannot be lost sight of the fact the Aska 40 liquor bottles were
found at the spot which was inside the bunker of the house of
Sk. Khairuddin where the wearing apparels of the deceased
which were identified by the informant (P.W.7) so also the dead
body of the deceased was found in a naked condition on the Taza
of the underground room which is a very clinching evidence
against the appellant Sk. Asif Alli.
Sixth Circumstance : Conduct of the appellant Sk. Asif Alli
in absconding from the village after occurrence:
18. The occurrence in question took place on 21.08.2014
in the afternoon and as already discussed under the heading of
fourth circumstance that the appellant Sk. Asif Alli was found
leaving the village Manu Mohalla in a Hero Honda Activa Scooty
with two co-accused persons on the same day at about 6.00
p.m. The Investigating Officer (P.W.27) has stated that on
22.08.2014, only appellant Sk. Akil Alli was apprehended by the
local people and was arrested by him in the occurrence night,
but when he searched for the other accused persons inside the
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village, they were found absent. The I.O. has further stated that
as per the direction of the S.P., Jagatsinghpur, a special team
was formed to apprehend the accused persons and raid was
conducted at different places. On 05.09.2014 at about 3.00
p.m., the appellant Sk. Asif Alli so also the co-accused Sk. Abid
Alli (acquitted) were apprehended at Bhubaneswar by the I.O.
and they were brought to Tirtol police station. Specific question
has been put to the appellant regarding his apprehension at
Bhubaneswar in the accused statement but he simply answered
he did not know.
The evidence has come on record through the I.O.
that the appellant Sk. Asif Alli was an accused in a case of
murder in connection with Tirtol P.S. Case No.197 of 2011.
Another case under section 307 of the I.P.C. was instituted
against him in connection with Tirtol P.S. Case No.89 of 2014 in
which he was forwarded to Court and released on bail on
20.08.2014 i.e. the previous day of the occurrence.
The conduct of the appellant Sk. Asif Alli in
absconding away from his village on the date of occurrence till
he was apprehended by the I.O. was a circumstance duly proved
by the prosecution against him. No explanation has been
rendered by the appellant in regard to his absence from his
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village and he was not available to the police in spite of their
best efforts to trace him. Thus, the sixth circumstance relating to
the conduct of the appellant in absconding from his village has
been duly proved by the prosecution and this absconding of the
appellant along with other incriminating circumstances as proved
by the prosecution goes a great way to point his culpability.
Summed up : Circumstances against appellant Sk. Asif Alli
@ Md. Asif Iqbal:
19. All the sixth circumstances which are appearing
against the appellant Sk. Asif Alli as discussed above, are of a
conclusive nature and have been fully established by the
prosecution. The facts established are consistent with the
hypothesis of guilt of the appellant and it is not explainable
under any of the hypothesis except that the appellant is guilty.
The chain of evidence is so complete that it does not leave any
reasonable ground for the conclusion consistent with innocence
of the appellant rather when the circumstances are collectively
considered, the same lead only to the irresistible conclusion that
the appellant is the perpetrator of the crime in question.
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Charges proved against appellant Sk. Asif Alli @ Md. Asif
Iqbal:
20. In my humble view, the prosecution has established
the charge under section 302 of the I.P.C. against the appellant
Sk. Asif Alli particularly in view of the oral evidence adduced by
the witnesses relating to the manner in which the body of the
deceased was found in the Taza of the house of Sk. Khairuddin,
the inquest report so also the post mortem report findings.
The prosecution has also proved through the
evidence of the doctor (P.W.25) who conducted post mortem
examination and the oral evidence of the witnesses regarding the
manner in which the body of the deceased was found in a naked
condition with multiple injuries on different parts of the body
including genital area that the appellant has not only committed
an offence of rape on the deceased but in course of such
commission, he inflicted the injuries which resulted in the death
of the deceased and therefore, the learned trial Court has rightly
found the appellant guilty under section 376-A of the I.P.C.
So far as the charge under section 376-D of the
I.P.C. which relates to commission of gang rape is concerned,
since one of the accused, who faced trial, namely, Sk. Abid Alli
has been acquitted by the learned trial Court and appellant Sk.
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Akil Alli has been acquitted by virtue of this judgment, it would
not be proper to convict the appellant under section 376-D of the
I.P.C.
Coming to the charge under section 6 of the POCSO
Act which deals with punishment for aggravated penetrative
sexual assault defined under section 5 of the said Act, the
ingredients of the offence can be satisfied if someone, inter alia,
commits penetrative sexual assault on a child below twelve
years. 'Penetrative sexual assault' has been defined under
section 3 of the said Act and in view of the evidence of the
doctor (P.W.25), I am of the view that the necessary ingredients
are satisfied. So far as the age of the deceased is concerned, the
evidence of P.W.14, the Principal of Kalinga Public School,
Krishnanandapur where the deceased was prosecuting her
studies as a student of L.K.G. indicates that her date of birth was
16.03.2008 as per the school admission register which was
seized by the police during investigation and left in the zima of
P.W.14. The original birth certificate of the deceased was seized
by the I.O. as per seizure list Ext.10 on 09.09.2014 on being
produced by the uncle of the deceased and it also reflects the
date of birth of the deceased to be 16.03.2008. Since the
occurrence in question took place on 21.08.2014, the
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prosecution has proved that the deceased was a child below
twelve years. The learned counsel for the appellant has not
challenged the evidence relating to the age of the deceased.
Therefore, the prosecution has successfully established the
charge under section 6 of the POCSO Act against the appellant
Sk. Asif Alli.
21. In view of the foregoing discussion, I am of the view
that the prosecution has failed to establish the charge under
section 376-D of the I.P.C. against the appellant Sk. Asif Alli and
accordingly, he is acquitted of such charge, however he is found
guilty under sections 302/376-A of the I.P.C. and section 6 of the
POCSO Act.
Sentence:
22. The learned trial Court has awarded life
imprisonment for the offence under section 376-A of the I.P.C.,
which shall mean imprisonment for the remainder of his natural
life. This section gives a discretion to the Court to impose
punishment with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to
imprisonment for life, which shall mean for imprisonment for the
remainder of that person's natural life, and with fine or with
death. In view of the age of the deceased at the time of
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occurrence and the manner in which rape has been committed
which ultimately caused the death of the deceased, I am of the
view that the sentence awarded by the learned trial Court for
such offence is perfectly justified and no interference is called for
with the same.
The learned trial Court has rightly not imposed any
sentence for the conviction of the appellant Sk. Asif Alli for the
charge under section 6 of the POCSO Act in view of section 42 of
the said Act.
23. So far as the the offence under section 302 of the
I.P.C. is concerned, the learned trial Court has awarded death
sentence to the appellant Sk. Asif Alli and ordered that he be
hanged by neck till he is dead.
The only question that now remains to be decided is
whether this case falls in the category of rarest of rare case,
justifying capital punishment. The learned Hon'ble Supreme
Court in several judgments has awarded capital punishment,
where rape and murder have been committed on a minor girl,
after striking a balance between the aggravating and mitigating
circumstances. Several other factors like the young age of the
accused, the possibility of reformation, lack of intention to
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murder consequent to rape etc. have also gone into judicial
mind.
It seems that on the date of pronouncement of order
of conviction i.e. on 29.11.2022, hearing on the question of
sentence was made and death sentence was awarded. The
learned trial Court after noting down the principles rendered by
the Hon'ble Supreme Court in different cases relating to
awarding of death sentence, has been pleased to hold that the
deceased was a minor victim aged about six years and the
offences are serious and heinous in nature and against the
norms of a healthy society. The act reveals a dirty and perverted
mind of human being who has no control over his carnal desires.
The number of injuries found on the deceased show that she was
mercilessly ravished and killed to satisfy the carnal desires. The
learned trial Court also took into account the criminal
background of the appellant as he was involved previously not
only in a case under section 302 of the I.P.C. but also in another
case under section 307 of the I.P.C. and was released on bail on
20.08.2014 and committed the offence in the present case on
the very next day. The learned trial Court held that there was no
chance of reformation of the appellant in the near future. The
deceased was well known to the appellant as he was a co-
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villager and the deceased was taken away with deliberate
intention in an ill mind in order to commit rape and murder,
which comes within the category of rarest of rare case
warranting capital punishment to meet the ends of justice. The
learned trial Court further held that imposition of capital
punishment on the appellant would be an example for other
wrongdoers of similar nature in the society, which is necessitated
in order to protect and safeguard the female children's interest in
the country and accordingly, imposed death sentence on the
appellant.
During course of argument, on 30.04.2024 learned
counsel for the appellants argued that passing of death sentence
on the date of conviction by the learned trial Court was not
justified. The learned counsel for the State brought to the notice
of the Court the decision of the Hon'ble Supreme Court rendered
in the case of Sundar @ Sundarrajan -Vrs.- State by
Inspector of Police reported in 2023 LiveLaw (SC) 217.
After going through the ratio laid down in the said decision, we
deemed it proper to call for a report to the Superintendent of
Circle Jail, Choudwar, Cuttack regarding (i) conduct of the
appellants in jail; (ii) information on appellants' involvement in
any other case; (iii) details of the appellants acquiring education
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in jail and (iv) details of appellants' medical records. On
02.05.2024, after considering the submission of the learned
counsel for the appellants so also the learned counsel for the
State, this Court took suo motu cognizance of the fact regarding
the procedure followed by the trial Court at the time of hearing
on sentence. Taking into account various decisions of the Hon'ble
Supreme Court on the point, we were of the view that there was
no proper and meaningful hearing on the question of sentence
which was necessary in order to do complete justice. We also
held that no opportunity was afforded to the appellants to submit
any material in support of mitigating circumstances during
course of hearing on the question of sentence. After observing
that hearing on the question of sentence has to be real and
effective and not a mere formality and that if a meaningful
hearing was not taken up by a Court while considering the
sentence imposed and inflicted upon the convict, it would cause
serious prejudice to him, we afforded an opportunity to the
appellants inviting from them such data to be furnished in the
shape of affidavits and also directed the Jail Authority to do the
needful in that regard. We directed the Senior Superintendent,
Circle Jail, Cuttack at Choudwar to collect all the information on
the past life of the convicts, psychological conditions and their
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conduct post- conviction obtaining reports accordingly by taking
service and necessary assistance from the Probation Officer and
such other officers including a Psychologist or Jail Doctor or any
Medical Officer attending the prison.
In pursuance of such order, the mother of the
appellant filed an affidavit dated 09.05.2024 indicating therein
that at the time of occurrence, his son was working in an auto
garage as a colour mistri and the entire family depended on the
income of the appellant, who was a young boy aged about
twenty five years at the time of occurrence and though he has
got previous criminal antecedents but he has no previous
conviction. It is further stated in the affidavit that during
incarceration, her son had reformed and he should be
rehabilitated to the extent that he could live in the society.
As per the order dated 02.05.2024, the learned
Additional Government Advocate also produced the social reports
of both the appellants submitted by the Regional Probation
Officer, Cuttack, Psychological condition reports of both the
appellants submitted by Psychiatrist, Circle Jail, Cuttack at
Choudwar and present conduct and behaviour inside the Circle
Jail, Cuttack at Choudwar from Senior Superintendent, Circle
Jail, Cuttack at Choudwar. The Regional Probation Officer in his
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report dated 08.05.2024 has stated that he met the mother of
the appellant Sk. Asif Alli, who was aged about sixty three years
and ascertained from her that the appellant was the eldest son of
the family and was working as a labourer in a private shop
(radium work), Mumbai for his livelihood to maintain the family.
The family of the appellant has got no landed property and the
mother of the appellant was suffering from eye sight problem
and psychological imbalance after the death of her husband. The
two sisters of the appellant are unmarried and stated that their
marriage proposal could not be settled due to non-acceptance of
their family in the society. It is observed that the family have no
means to face the situation in the village and the family is
struggling for the livelihood as there is no earning member in the
family and they are remaining in fear psychosis and the mother
of the appellant is behaving irrationally with unsettled mind. So
far as education background of the appellant is concerned, he
passed matriculation in third division in the year 2010 and the
school leaving certificate reflects good in character/conduct
during his school days and he had no adverse report as per the
school report. The appellant was a good cricket and football
player and after matriculation, he discontinued his higher studies
due to financial problems as reported by his family members. So
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far as social life and past life of the appellant is concerned, it
appears that prior to the offence in question, the appellant was
involved in seven cases, out of which in three cases, he has been
acquitted. The villagers and village committee members
expressed their displeasure against the appellant for his criminal
act and they were very disgusted, aggravated and grudged
towards the appellant and therefore, the life of the appellant is in
danger in his village. The villagers are not providing any support
to the family of the appellant for which the family members are
suffering a lot. The Senior Superintendent, Circle Jail, Cuttack at
Choudwar has submitted a report wherein it is mentioned that
the conduct and behaviour of the appellant inside prison at
present is normal, his behaviour and attitude towards other co-
prisoners as well as the staff is cordial. He is maintaining every
discipline of jail administration and there is no adverse report
against him during his entire period of confinement in prison. No
prison offence was committed by the appellant inside the jail
during the period of his imprisonment. The Psychiatrist, Circle
Jail, Cuttack at Choudwar has given a report relating to the
psychological condition of the appellant wherein it is mentioned
that the appellant is doing his daily routine activities properly,
offering prayer to God many times in a day and coping with the
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co-inmates well and regarding the sentence, the appellant is
ready to accept his punishment as he has surrendered before the
God. On mental status examination, mild degree of anxiety was
noticed and no other mental abnormality was detected and on
surrendering before the God, the appellant was able to keep the
mental state in balance. The Senior Superintendent, Circle Jail,
Cuttack at Choudwar has also reported that the conduct of the
appellant inside the jail is normal and he has not acquired any
further education in jail after his admission to jail.
The learned counsel for the appellants placed reliance
in the case of Shankar Kisanrao Khade (supra), wherein
Hon'ble Justice K.S. Radhakrishnan (as His Lordship then was)
held as follows:
"28......In my considered view that the tests that
we have to apply, while awarding death
sentence, are "crime test", "criminal test" and
the R-R Test and not "balancing test". To award
death sentence, the "crime test" has to be fully
satisfied, that is 100% and "criminal test" 0%,
that is no mitigating circumstance favouring the
accused. If there is any circumstance favouring
the accused, like lack of intention to commit the
crime, possibility of reformation, young age of
the accused, not a menace to the society no
previous track record etc., the "criminal test"
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may favour the accused to avoid the capital
punishment. Even, if both the tests are satisfied
that is the aggravating circumstances to the
fullest extent and no mitigating circumstances
favouring the accused, still we have to apply
finally the Rarest of Rare Case test (R-R lest). R-
R Test depends upon the perception of the
society that is "society centric" and not "Judge
centric" that is, whether the society will approve
the awarding of death sentence to certain types
of crimes or not. While applying that test, the
Court has to look into variety of factors like
society's abhorrence, extreme indignation and
antipathy to certain types of crimes like sexual
assault and murder of minor girls intellectually
challenged, suffering from physical disability, old
and infirm women with those disabilities etc.
Examples are only illustrative and not
exhaustive. Courts award death sentence since
situation demands so, due to constitutional
compulsion, reflected by the will of the people
and not the will of the Judges.
xx xx xx xx xx
38. Therefore, the mere pendency of few
criminal cases as such is not an aggravating
circumstance to be taken note of while awarding
death sentence unless the accused is found
guilty and convicted in those cases. High Court
was, therefore, in error in holding that those are
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relevant factors to be considered in awarding
appropriate sentence."
In the said case, even though the victim was a minor
girl aged about 11 years, intellectually challenged and the
accused repeatedly raped the girl for few days, ultimately
strangulated her to death and the Hon'ble Justice K.S.
Radhakrishnan held that both 'crime test' and 'criminal test' are
independently satisfied against the accused, but considering the
entire facts and circumstances of the case, the death sentence
awarded to the accused was converted to rigorous imprisonment
for life. Hon'ble Justice Madan B. Lokur (as His Lordship then
was) also agreed with such view.
Now the decisions cited by the learned counsel for
the State on death penalty are to be discussed. In the case of
Ravi (supra), Hon'ble Justice Surya Kant speaking for himself
and for Justice R.F. Nariman (as His Lordship then was) held as
follows:-
"62. In the light of above discussion, we are of
the considered opinion that sentencing in this
case has to be judged keeping in view the
parameters originating from Bachan Singh and
Machhi Singh cases and which have since been
strengthened, explained, distinguished or
followed in a catena of subsequent decisions,
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some of which have been cited above. Having
said that, it may be seen that the victim was
barely a two-year old baby whom the appellant
kidnapped and apparently kept on assaulting
over 4-5 hours till she breathed her last. The
appellant who had no control over his carnal
desires surpassed all natural, social and legal
limits just to satiate his sexual hunger. He
ruthlessly finished a life which was yet to bloom.
The appellant instead of showing fatherly love,
affection and protection to the child against the
evils of the society, rather made her the victim
of lust. It is a case where trust has been
betrayed and social values are impaired. The
unnatural sex with a two-year old toddler
exhibits a dirty and perverted mind, showcasing
a horrifying tale of brutality. The appellant
meticulously executed his nefarious design by
locking one door of his house from the outside
and bolting the other one from the inside so as
to deceive people into believing that nobody was
inside. The appellant was thus in his full senses
while he indulged in this senseless act. The
appellant has not shown any remorse or
repentance for the gory crime, rather he opted
to remain silent in his 313 Cr.P.C. statement. His
deliberate, well-designed silence with a standard
defence of 'false' accusation reveals his lack of
kindness or compassion and leads to believe
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that he can never be reformed. That being so,
this Court cannot write of the capital punishment
so long as it is inscribed in the statute book."
Hon'ble Justice R. Subhash Reddy (as His Lordship
then was) dissented on the question of sentence and held as
follows:-
"76. In this case, learned counsel for the
appellant has contended that the trial Court as
well as the High Court, fell in error in confining
nature and brutality of crime alone, to award the
sentence of death. It is submitted that nature of
crime alone is not sufficient to impose the
sentence of death, unless State proves by
leading cogent evidence that the convict is
beyond reform and rehabilitation. It is submitted
that the socio-economic conditions of the convict
and the circumstances under which crime is
committed are equally relevant for the purpose
of considering whether a death penalty is to be
imposed or not. It is submitted that as the case
on hand, rests on circumstantial evidence, same
is also the ground not to impose capital
punishment, of death.
xx xx xx xx xx
98. I am clear in my mind that in this case on
hand, the mitigating circumstances of the
appellant, dominate over the aggravating
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circumstances, to modify the death sentence to
that of life imprisonment. Even as per the case
of prosecution, the appellant was under
influence of liquor at the time of committing the
offence, and there is no evidence on record from
the side of prosecution, to show that there is no
possibility of reformation and rehabilitation of
the Appellant. Further, age of the appellant was
25 years at the relevant time and conviction is
solely based on circumstantial evidence. Taking
all such aspects into consideration, the death
penalty imposed on the appellant is to be
modified to that of life imprisonment, for the
offence under section 302 Indian Penal Code."
In the case of Manoharan (supra), Hon'ble Justice
R.F. Nariman (as His Lordship then was) speaking for himself
and for Justice Surya Kant held as follows:-
"34. In the circumstances, we have no doubt
that the trial Court and High Court have
correctly applied and balanced aggravating
circumstances with mitigating circumstances to
find that the crime committed was cold-blooded
and involves the rape of a minor girl and murder
of two children in the most heinous fashion
possible. No remorse has been shown by the
appellant at all and given the nature of the crime
as stated in paragraph 84 of the High Court's
judgment it is unlikely that the appellant, if set
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free, would not be capable of committing such a
crime yet again. The fact that the appellant
made a confessional statement would not, on
the facts of this case, mean that he showed
remorse for committing such a heinous crime.
He did not stand by this confessional statement,
but falsely retracted only those parts of the
statement which implicated him of both the rape
of the young girl and the murder of both her and
her little brother. Consequently, we confirm the
death sentence and dismiss the appeals."
Hon'ble Justice Sanjiv Khanna dissented on the
question of sentence and held as follows:-
"44. The expression 'rarest of rare' literally
means rarest even in the rare, i.e. a rarest case
of an extreme nature. The expression and the
choice of words, means that punishment by
death is an extremely narrow and confined rare
exception. The normal, if not an unexceptional
rule, is punishment for life, which rule can be
trimmed and upended only when the award of
sentence for life is unquestionably foreclosed.
Thus, capital punishment is awarded and
invoked only if the facts and material produced
by the prosecution disdainfully and fully
establish that the option of imprisonment for life
will not suffice and is wholly disproportionate
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and therefore the case belongs to the 'rarest of
rare' category.
xx xx xx xx xx
55. When we come to the facts of the present
case, one has to but agree that the offence or
the crime was brutal, ruthless and cruel as two
innocent children aged 7 to 10 lost their lives,
and there is substantial medical and other
evidence to show that the young girl was
mercilessly sexually abused and raped by the
Appellant and Mohanakrishnan (since deceased).
Thereafter the children were administered
poison and thrown into a canal to die. The pain
and trauma suffered by the small children who
were not at fault and the agony of the parents
and grandmother are immense, incalculable and
would remain forever. The punishment must be
severe. Yet to award death penalty we must
examine and answer the second question, i.e.
balance out the aggravating circumstances by
giving weightage to the mitigating circumstances
and decide whether punishment of life
imprisonment is foreclosed. Then and then alone
the case would fall under the 'rarest of rare'
category. While doing so, we should account for
the majority dictum in V. Sriharan (supra) that
where life imprisonment is considered to be
disproportionate or inadequate, then the Court
may direct sentence for life imprisonment,
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without any right to remission i.e. imprisonment
for the entire course of life with no recourse to
remission, subject to the power that may be
exercised under Articles 72 and 161 of the
Constitution.
xx xx xx xx xx
73. The appellant's partial retraction has been
rightly disbelieved for good reasons, including
the statement of the appellant under Section
313 Cr.P.C. in the Court accepting and admitting
that his confession was recorded by the
Magistrate. The retraction by itself, I would
observe, should not be treated as absence of
remorse or repentance, albeit an afterthought or
on advice propelled by fear that the appellant in
view of his admission may face the gallows, and
that the earlier confession made seeking
forgiveness would be the cause of his death. A
thought of doubt and attempt to retract had
surfaced on account of belief that the sense of
remorse, repentance and forgiveness would not
be appreciated and given due regard, cannot be
ruled out. Benefit in this regard must go to the
Appellant.
74. The other mitigating factors in favour of the
appellant are his young age, he was 23 years of
age at the time of occurrence and he belongs to
a poor family. He has aged parents and is a
first-time offender as recorded in the
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judgment/order of the trial court. Further, the
appellant Manoharan was not initially involved in
the abduction and kidnapping of the children. He
was not the mastermind. Mohanakrishnan (since
deceased) had thought, conceived and had
single-handedly executed the plan to abduct the
children. The appellant did join him thereafter
and was with Mohanakrishnan (since deceased).
Subsequently the devil in Mohanakrishnan (since
deceased) took over and he sexually assaulted
and raped the small girl, while the appellant
kept quiet. Later the appellant too sexually
assaulted and committed rape. Thereupon,
poison was administered to the children before
throwing them into the canal. The offence
committed was heinous and deplorable.
75.......In view of the aforesaid discussion and on
balancing aggravating and mitigating
circumstances, in my opinion, the present case
does not fall under the category of 'rarest of
rare' case i.e. there is no alternative but to
impose death sentence. It would fall within the
special category of cases, where the appellant
should be directed to suffer sentence for life i.e.
till his natural death, without
remission/commutation under sections 432 and
433 Code of Criminal Procedure. To this extent, I
would allow the appeal."
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Date: 20-Jun-2024 11:05:59
In the case of Laxman Naik (supra), the Hon'ble
Supreme Court held that the extreme penalty can be inflicted
only in gravest cases of the extreme culpability and in making
choice of the sentence, in addition to the circumstances of the
offender also. Having regard to these principles with regard to
the imposition of the extreme penalty, it may be noticed that
there are absolutely no mitigating circumstances in the case. The
appellant seems to have acted in a beastly manner as after
satisfying his lust, he thought that the victim might expose him
for the commission of the offence of forcible rape on her to the
family members and other, the appellant with a view to screen
the evidence of his crime also put an end to the life of innocent
girl who had seen only seven summers. The evidence on record
is indicative of the fact as to how diabolically the appellant had
conceived of his plan and brutally executed it and such a
calculated, cold blooded and brutal murder of a girl of a very
tender age after committing rape on her would undoubtedly fall
in the category of rarest of the rare case attracting no
punishment other than the capital punishment.
In the case of Dhananjoy Chatterjee (supra), the
Hon'ble Supreme Court held that the object of sentencing should
be to see that the crime does not go unpunished and the victim
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of crime as also the society has the satisfaction that justice has
been done to it. In imposing sentences, in the absence of specific
legislation, Judges must consider variety of factors and after
considering all those factors and taking an overall view of the
situation, impose sentence which they consider to be an
appropriate one. Aggravating factors cannot be ignored and
similarly mitigating circumstances have also to be taken into
consideration. It is further held that the measure of punishment
in a given case must depend upon the atrocity of the crime; the
conduct of the criminal and the defenceless and unprotected
state of the victim. Imposition of appropriate punishment is the
manner in which the courts respond to the society's cry for
justice against the criminals. Justice demands that courts should
impose punishment fitting to the crime so that the courts reflect
public abhorrence of the crime. The courts must not only keep in
view the rights of the criminal but also the rights of the victim of
crime and the society at large while considering imposition of
appropriate punishment.
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
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can be said to be completely futile, only when the sentencing
aim of reformation can be said to be unachievable.
Keeping in view the ratio laid down in the decisions
discussed above, it is borne out of record that the offence was
committed against a girl child aged about six years in a most
horrendous, devilish and barbaric manner, but the case is based
on circumstantial evidence and there is no material on record
that the crime was committed in a pre-planned manner. It
seems that both the appellants noticed the deceased in the
company of his cousin brother (P.W.17) while they were
returning after purchasing chocolates and then the deceased was
lifted away and she was subjected to rape during course of which
she sustained injuries on different parts of her body and her
death was due to shock and haemorrhage as a result of injuries
to genital track which were fatal in ordinary course of nature. No
harm has been caused to P.W.17 while lifting away the deceased
even though the appellants must have been aware that P.W.17 is
likely to disclose about their misdeeds before the family
members and others. The post mortem report (Ext.19) does not
indicate any specific method was applied by the culprit for
committing the death of the deceased. Though the appellant has
got criminal antecedents but he has not been found guilty in
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those cases rather he has been acquitted in three cases as would
be evident from the social report submitted by Regional
Probation Officer, Cuttack. Therefore, the mere pendency of
criminal cases cannot be considered as relevant factors for
awarding death sentence in view of the ratio laid down by the
Hon'ble Supreme Court in the case of Shankar Kisanrao Khade
(supra). The date of birth of the appellant as per the report
submitted by Regional Probation Officer, Cuttack is 13.03.1989
and therefore, he was aged about 26 years as on the date of
occurrence. He is a family man and having old mother aged
about 63 years and two unmarried sisters and he was the sole
bread earner of his family and working as a colour mistri in
Mumbai and the financial condition of the family is not good. His
character and conduct was good in school and he has passed
matriculation in the year 2010. He could not continue his higher
studies due to financial problems in the family. He was a good
cricket and football player during his teen age. Even though he is
in judicial custody for about ten years, but the reports submitted
by Jail Superintendent and the Psychiatrist indicate that his
conduct and behaviour inside prison is normal, his behaviour
towards co-prisoners as well as staff is cordial and he is
maintaining every discipline of the jail administration. Neither
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there is any adverse report against him during the entire period
of confinement nor he has committed any prison offence. He is
offering prayer to God many times in a day and he is ready to
accept the punishment as he has surrendered before God.
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. There is no cogent evidence
that the appellant is beyond reform and rehabilitation.
Considering the entire facts and circumstances, the aggravating
circumstances and mitigating circumstances, it cannot be said
that capital punishment is the only option for the appellant and
that the option of imprisonment for life will not suffice and is
wholly disproportionate.
In view of the foregoing discussions, I am inclined to
commute the death sentence awarded to the appellant for the
offence under section 302 of the I.P.C. to life imprisonment,
which shall mean the remainder of his natural death, without
remission/commutation under sections 432 and 433 Code of
Criminal Procedure.
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Victim Compensation:
24. The learned trial Court has awarded compensation of
Rs.1,50,000/- (rupees one lakh fifty thousand) to be paid to the
parents of the deceased. The State Government of Odisha in
exercise of powers conferred by the provisions of section 357-A
of Cr.P.C. has formulated the Odisha Victim Compensation
Scheme, 2017. Schedule-II of the scheme deals with
compensation scheme for woman victims or survivors of sexual
assault or other crimes. In case of death (loss of life), the
minimum limit of compensation is Rs. 5 Lakh and the upper limit
of compensation is Rs.10 Lakh. In the factual scenario and
particularly taking into account the age of the deceased, the
maximum compensation amount i.e. Rs. 10,000,00/- (rupees ten
lakh) as provided under Schedule-II is awarded which is to be
paid to the father and mother of the deceased. If any
compensation amount has already been disbursed to the parents
of the deceased as per the order of the learned trial Court, the
same shall be adjusted and District Legal Services Authority,
Jagatsinghpur shall take immediate steps to pay the balance
amount of compensation within four weeks from today.
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Conclusion:
25. In view of the discussions, CRLA No.121 of 2023 filed
by the appellant Sk. Akil Alli is allowed. The conviction of the
appellant Sk. Akil Alli under sections 302/376-A/376-D of the
I.P.C. and section 6 of the POCSO Act is hereby set aside and the
appellant is acquitted of all the charges. He shall be set at liberty
forthwith if his detention is not required in any other case.
CRLA No.120 of 2023 filed by appellant Sk. Asif Alli
@ Md. Asif Iqbal is allowed in part. The conviction of the
appellant Sk. Asif Alli @ Md. Asif Iqbal under section 376-D of
the I.P.C. is hereby set aside, however his conviction under
sections 302/376-A of the I.P.C. and section 6 of the POCSO Act
is upheld. The sentence of life imprisonment awarded by the
learned trial Court to the appellant Sk. Asif Alli @ Md. Asif Iqbal
for the offence under section 376-A of the I.P.C., which shall
mean imprisonment for the remainder of his natural life, stands
confirmed. No separate sentence is awarded to the appellant Sk.
Asif Alli @ Md. Asif Iqbal for his conviction under section 6 of the
POCSO Act. The death sentence awarded to the appellant Sk.
Asif Alli @ Md. Asif Iqbal for the offence under section 302 of the
I.P.C. is commuted to life imprisonment, which shall mean till his
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Date: 20-Jun-2024 11:05:59
natural death, without remission/commutation under sections
432 and 433 Code of Criminal Procedure.
Accordingly, Death Sentence Reference is answered
in negative.
Before parting with the case, I would like to put on
record my deep appreciation to Sk. Zafarulla, learned counsel for
the appellants 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. Bibhu Prasad Tripathy, learned Addl.
Govt. Advocate.
........................................
S.K. Sahoo, J.
R.K. Pattanaik, J. I agree.
.................................... R.K. Pattanaik, J.
Orissa High Court, Cuttack The 20th June 2024/M.K.Rout/RKMishra/Sipun Page 106 of 106