Orissa High Court
Mishra Paraja vs State Of Orissa on 21 February, 2014
Author: Biswajit Mohanty
Bench: Pradip Mohanty, Biswajit Mohanty
ORISSA HIGH COURT, CUTTACK
DSREF NO.3 OF 2013 & CRLA NO.242 OF 2013
DSREF No.3 of 2013
In the matter of a reference under section 366 of the Code of Criminal
Procedure arising out of judgment of conviction dated 23.3.2013 and
order of sentence dated 25.03.2013 passed by Sri K.C.Mohapatra,
Sessions Judge, Nabarangpur in C.T. No.67 of 2011.
State of Orissa
Versus
Mishra Paraja ...... Accused person
For State : Mr. Bishnu Prasad Pradhan,
(Addl. Government Advocate)
For accused : Mr. D.P. Das
CRLA No.242 of 2013
From the Judgment of conviction dated 23.3.2013 and order of
sentence dated 25.03.2013 passed by Sri K.C.Mohapatra, Sessions
Judge, Nabarangpur in C.T. No.67 of 2011
Mishra Paraja ...... Appellant
Versus
State of Orissa ...... Respondent
For Appellant : Mr. D.P. Das
For Respondent : Mr. Bishnu Prasad Pradhan,
(Addl. Government Advocate)
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
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Date of judgment: 21.02.2014
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BISWAJIT MOHANTY, J. The present Death Reference No.3 of 2013
arises out of Criminal Trial No.67 of 2011 in which the learned
Sessions Judge, Nabarangpur has held the accused guilty of offence
under Sections 376/302 of I.P.C. and accordingly convicted him
thereunder. On such conviction, the learned Sessions Judge,
Nabarangpur sentenced the convict to death under Section 302 of
I.P.C. read with Section 376 of I.P.C. and further directed that the
convict be hanged by neck till his death. The learned Sessions Judge
further directed that the proceedings be submitted to this Court for
confirmation of death sentence. Challenging the aforesaid order of
conviction and sentence, the convict Mishra Paraja has filed CRLA
No.242 of 2013 before this Court. In such background, the above
noted death reference and criminal appeal having been heard
together are being disposed of by this common judgment.
2. Prosecution case in brief is that on 27.02.2011 at about
4.00 P.M., the deceased, Lachhandei Gond was sitting under a
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mango tree bordering the land of P.W.6 and P.W.8. P.W.6 is the wife
of P.W.8 and at that time both of them were working in their field.
The convict-appellant at that point of time came to the spot and
removed the wearing saree of the deceased and committed rape on
her. When the deceased cried, P.W.6 rushed to the spot and P.W.8
proceeded to the village to call the villagers. On reaching the spot,
P.W.6 dragged out the convict-appellant, who was then sleeping over
the deceased in naked condition and was having sex with her. P.W.6
dealt two slaps to the convict-appellant and admonished him. Being
infuriated, the convict-appellant chased away P.W.6 in naked
condition saying that he would also commit rape to P.W.6 and would
kill her. So, P.W.6 ran away to the village out of fear to inform the
villager. Thereafter, both P.W.6 and her husband, P.W.8 came to the
spot along with other villagers and found the dead body of the
deceased. According to P.W.8, he reached the spot about 10 minutes
after the incident. P.W.1, who happens to be the informant and son
of the deceased on being informed by P.W.8 also rushed to the spot
along with other villagers and found that his mother was already
dead and the convict-appellant was carrying the dead body of his
mother in naked condition putting her on his shoulder towards
'Masanipada' burial ground. Immediately P.W.1 along with others
detained the convict-appellant there and came to Umerkote P.S. to
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lodge the F.I.R. under Ext.8. The said F.I.R. under Ext.8 was scribed
by P.W.16 as per the instruction of P.W.1. On the strength of the said
report, the police registered Umerkote P.S. Case No.46 of 2011 and
took up the investigation. During course of investigation, the I.O.
examined the informant and others, conducted the inquest over the
dead body of Lachhandei Gond. The police also made requisition for
postmortem examination of the dead body of the deceased. They also
seized the wearing apparels of both the accused and deceased and
sent different materials for chemical examination to Regional
Forensic Science Laboratory, Berhampur, Ganjam. The police
arrested the convict-appellant on 27.02.2011 and forwarded him. On
completion of investigation, the police submitted charge sheet against
the convict-appellant on 24.06.2011 for offences under Sections
302/376/294/506 of I.P.C. The learned J.M.F.C., Umerkote by order
dated 12.08.2011 took cognizance of offence under Sections
302/376/294/506 of I.P.C. in G.R. Case No.121 of 2011 arising out
of Umerkote P.S. Case No.46 of 2011. Subsequently, the learned
J.M.F.C. committed G.R. Case to the court of learned Addl. Sessions
Judge, Nabarangpur. On the basis of said commitment, Criminal
Trial No.67 of 2011 was registered in the court of learned Sessions
Judge, Nabarangpur. By order dated 21.08.2012, the learned
Sessions Judge, Nabarangpur framed charges under Sections
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302/376 of I.P.C. against the present convict-appellant. The convict-
appellant stood his trial under Sections 302/376 of I.P.C. for
committing murder and rape on the deceased, Lachhandei Gond. The
plea of the convict-appellant before the learned Sessions Judge was
of complete denial.
3. In order to establish the charges against the convict-
appellant, the prosecution examined as many as 18 witnesses. P.W.1
is the informant, who is the son of the deceased. P.Ws 1,2,3,4,5,7,10
and 12 are post occurrence witnesses, who have come to the spot
after the alleged occurrence. P.Ws.6 and 8 claimed to have seen part
of the occurrence, particularly relating to rape. P.W.9 is the doctor
who conducted the postmortem of the deceased and prepared
postmortem report under Ext.4. P.W.14 is the doctor, who examined
the convict-appellant on police requisition and prepared his report
under Ext.6. P.W.16 is the scribe of the F.I.R. (Ext.8). P.W.13 is a
witness to the seizure. P.Ws.11 and 15 have not deposed anything
regarding occurrence. P.W.17 and P.W.18 are the Investigating
Officers.
4. The convict-appellant did not lead any evidence in his
defence. After closure of prosecution evidence, the convict-appellant
was examined under Section 313 of Cr.P.C. He answered the
questions in negative and took the plea that he has been falsely
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implicated by the villagers on account of enmity. Upon completion of
trial, the learned Sessions Judge came to the conclusion that the
prosecution has established its case beyond all reasonable doubt and
accordingly found the convict-appellant guilty under Sections
302/376 of I.P.C. and sentenced him to death under Section 302 of
I.P.C. The learned Sessions Judge did not inflict separate
punishment on the convict-appellant in respect of offence of rape
punishable under Section 376 of I.P.C.
5. In assailing the impugned judgment, Shri D.P.Das,
learned counsel for the convict-appellant submitted that as regards
commission of offence of rape, there is absolutely no evidence
whatsoever to sustain the charge and that the trial court has relied
on conjectures and surmises to record a conviction of appellant
under Section 376 of I.P.C. According to him apart from the fact that
there is no oral evidence from the side of the victim since she died,
the medical evidence totally rules out commission of offence of rape
in the instant case. In this context, he relied on the evidence of
doctors, P.W.9 and P.W.14. P.W.9 conducted autopsy on the dead
body of the deceased and P.W.14 examined the accused on police
requisition. In this context, he submitted that here is a case where
medical evidence is totally inconsistent with ocular evidence and this
totally improbabilises the version of eye-witnesses (P.Ws 6 & 8) with
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regard to commission of rape. In such background, he submitted that
under such circumstances medical evidence is to be preferred over
the version of eye-witnesses. According to him, this is not a case of
variance between oral evidence of eye-witnesses and that of medical
evidence. This is a case, where medical evidence totally rules out the
versions of the eye-witnesses. In this context, he relied on the
decisions of Hon'ble Supreme Court as reported in AIR 2008 SC 533
(Kapildeo Mandal & others v. State of Bihar) and (2009) 11 SCC
566 (State of U.P. v. Dinesh). He further submitted that the
decisions relied upon by the learned Sessions Judge at para-19 of the
judgment for giving primacy to eyewitness are factually
distinguishable. Secondly, he submitted that not only the medical
evidence but also the chemical examination report and other
circumstances disprove the allegation of rape. According to him as
per the chemical examination report submitted under Ext.13, stains
of semen, stains of blood and foreign hairs could not be detected in
the exhibits supplied under Ext.12. Thirdly, he submitted that there
exists great contradiction in the evidence of P.W.6 and the
statements made by P.W.17 during the cross-examination. In this
context, he submitted that in the cross-examination, P.W.17 stated
that P.W.6 never stated before him that at the time of commission of
rape on the deceased, she was in naked condition and the accused in
8
naked condition was sleeping on her while committing rape and that
the accused was throttling the neck of deceased. Though such things
as pointed out by P.W.17 were not put to P.W.6 in her cross-
examination, however, the learned trial court could have looked into
the case diary and on that basis should have thrown out the version
of P.W.6 relating to rape. In this context, Mr. Das relied on two
decisions as reported in 1997 Criminal Law Journal 398 (Manohar v.
State of Karnataka) and AIR 1989 Supreme Court 144 (Mukund
Lal and another v. Union of India and another).
As regards conviction under Section 302 of I.P.C. for
causing murder is concerned, according to Shri Das, evidence from
the side of prosecution is equally deficient. Though the deceased is
found to have died out of asphyxia due to strangulation, admittedly,
nobody has seen the assault on the deceased by the convict-
appellant. So far as use of last seen theory by the trial court is
concerned, Mr. Das, submitted that the same cannot be the sole
basis for holding a person guilty of murder. In this context, he relied
on a decision reported in AIR 1979 SC 1620 (Lakhanpal v. The
State of Madhya Pradesh). Secondly, he submitted that in any
criminal case, motive plays an important role. But here is a case,
according to him, where the prosecution has not come up with a
specific reason as to why the convict-appellant would take away the
9
life of the deceased. Since the allegation of rape is found to be false,
there is no reason as to why the convict-appellant would do away
with the life of the deceased. In absence of any motive and
whatsoever, causing murder of an old lady does not stand to reason.
Thirdly, he submitted that there exists no scientific evidence to
connect the accused with the murder of the deceased. According to
him, in the postmortem report, it has been found that there are
linear abrasions over the right chest below the breast and those
resembled nail marks and if the accused is the author of the crime
then in all probabilities his nail clippings would have given positive
sign. Though nail clippings were sent for chemical examination to
Regional Forensic Science Laboratory, Berhampur, however, vide
Ext.13, it has been made clear that nothing (stains of blood) has been
detected on the nail clippings. Fourthly, he submitted that so far as
allegation of carrying dead body of the deceased is concerned, this
allegation is unreliable, as evidence on this count is highly
discrepant. In this context, he has drawn the attention of this Court
to the evidence of P.Ws.1, 2, 6, 8 and 10. According to him a
combined reading of the evidence of the above noted witnesses clearly
point out serious contradictions and therefore no reliance can be
placed on them and accordingly, the convict-appellant should be
acquitted. With regard to most of the decisions cited by the trial
10
court, he submitted that most of those are factually distinguishable
and rest does not lay down any principle which would go against the
convict-appellant.
6. Shri B.P.Pradhan, learned Addl. Government Advocate
while defending the impugned judgment, submitted that so far as
conviction under Section 376 IPC is concerned, evidence of eye-
witnesses like P.Ws.6 and 8 is clear and though both the above noted
witnesses were cross-examined at length but nothing substantial has
been brought out to demolish their testimony. Therefore, a clear case
for conviction under Section 376 of I.P.C. is well made out. Secondly,
with regard to discrepancy in the medical evidence, he submitted
that law is well settled that medical evidence cannot be relied upon to
falsify the evidence of eye-witnesses. To discard the testimony of eye-
witnesses simply on the strength of opinion expressed by the doctor
is not conducive to the administration of criminal justice. According
to him, it is trite law that oral evidence has to get primacy and
medical evidence is basically opinionative. Opinion of the doctor
cannot have any binding force and cannot be said to be the last word.
In this context, Mr. Pradhan, relies on the decision reported in (2003)
12 SCC 606 (Ramananda Yadav v. Prabhunath Jha and others),
(1979) 4 SCC 349 (Mange v. State of Haryana), (1992) 3 SCC 204
(Madan Gopal Kokkad v. Naval Dubey and another), (2008) 13
11
SCC 515 (Ram Swaroop v. State of Rajasthan), (2004) 10 SCC 692
(Main Pal and another v. State of Haryana and others), (2006) 1
SCC 283 (Vishnu v. State of Maharashtra). Thirdly, he submitted
that it is well settled that in case the victim is a married lady, there
would be hardly any chance of suffering any internal injury on her
private part in case of rape and further that absence of injury in the
private part will not by itself falsify the case of rape nor the same can
be construed as the evidence of consent. Mainly relying on the
version of eye-witnesses, P.Ws.6 and 8, he submitted that the offence
under Section 376 of I.P.C. has been squarely proved and the
convict-appellant has been rightly convicted by the trial court under
Section 376 of I.P.C.
With regard to conviction under Section 302 of I.P.C.,
firstly he submitted that the court below has correctly relied on the
last seen theory as one of the circumstances to convict the accused
under Section 302 of I.P.C. According to him, last seen theory comes
into play where the time gap between the accused and deceased were
last seen alive and when the deceased was found dead is so short
that possibility of any person other than the accused being the
author of crime becomes impossible. In this case, he submitted that
the deceased was last seen alive with the convict-appellant near the
mango tree at about 4.00 P.M. as per the evidence of P.Ws.6 and 8.
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P.W. 8 have specifically stated in his evidence that except the
deceased and convict-appellant, nobody else was available near the
spot. Shortly thereafter, at about 4.10 P.M., decased was found dead
and her dead body was in the custody of the convict-appellant. In
this context, he relied on the evidence of P.W.8 who clearly says in
the cross-examination that after sending his wife (P.W.6) to the spot,
he ran towards the village and on being accompanied by the villagers,
he ran to the spot from the village and reached there about 10
minutes after the incident. Further, P.Ws.10 and 12 have specifically
stated that the convict-appellant was going towards 'Masanipada'
carrying the dead body of the deceased at about 4.00 P.M. According
to Shri Pradhan, the evidence of P.Ws.6,8,10 and 12 remains intact
and have not been demolished in the cross-examination. Thus, the
last seen theory has been successfully established by the
prosecution. In this context, he relies the decisions of the Hon'ble
Supreme Court reported in (2005) 3 SCC 114 (State of Uttar
Pradesh v. Satish), (2013) 55 OCR (SC) 623 (Shankar Kishanrao
Khade v. State of Maharashtra), AIR 2007 SC 144 (State of
Rajsthan v. Kashiram). Secondly, Mr. Pradhan, relied on Section
106 of Indian Evidence Act, 1972 and submitted that the convict-
appellant has given no explanation as to how the death of the lady
has occurred. Keeping in mind the peculiar circumstances of the
13
case, the very fact that the lady was alive at 4.00 P.M. in the
company of the convict-appellant and 10 minutes after she suffered
death on account of asphyxia due to strangulation warrants that the
cause of death could only be within the special knowledge of the
convict-appellant and none else. He submitted that it is clear from
the evidence of P.W.8 that except the convict-appellant and deceased,
none-else was present at the spot. Thus, the cause of death can only
be within the knowledge of the convict-appellant. Since he has not
offered any explanation on the cause of death of the deceased, he
(appellant) has failed to discharge the burden cast upon him under
Section 106 of Indian Evidence Act and accordingly he has to suffer
conviction. In this context, Shri Pradhan has relied upon the
decisions of the Hon'ble Supreme Court reported in AIR 1956 SC 404
(Sambhu Nath Meher v. State of Ajmer), (2007) 3 SCC 755 (State
of Goa v. Sanjay), AIR 2007 SC 144 (State of Rajasthan v. Kashi
Ram), (2013) 54 OCR (SC) 218 (Sathy Narayanan v. State
represented by Inspector of Police). Thirdly, he submitted that the
convict-appellant in his examination under Section 313 of Cr.P.C.
also did not offer any explanation with regard to incriminating
circumstances being brought on record against him, particularly, the
fact of deceased being last seen alive with accused and dead body of
the deceased being found in the custody of the accused within a very
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short gap. On the contrary, the convict-appellant took the plea of
complete denial. This, therefore, provides a missing link in the chain
of circumstances which proves his guilt beyond reasonable doubt.
Fourthly, he submitted that P.W.9, the doctor has opined that the
cause of death of the deceased was asphyxia in nature due to
strangulation. P.W.9 has also clearly opined that the injuries were
ante-mortem in nature. Though P.W.9 was cross-examined, his
evidence remains un-demolished. Fifthly, he submitted that the
convict-appellant was caught red handed by P.Ws.1 and 10 while he
was carrying the dead body in a naked condition. Further, P.Ws.10
and 12 have stated that the convict-appellant was carrying the dead
body towards 'Masanipada' (burial ground). He also submitted that
the motive of the convict-appellant was clear from the fact that he
killed the deceased in order to hide his ghastly crime relating to
commission of offence of rape. Accordingly, he submitted that so far
as the offence under Section 302 of I.P.C. is concerned, the chain of
circumstances is complete and same clearly establishes that the
convict-appellant is the author of the crime and none else. In this
context, he relied on the decisions of the Hon'ble Supreme Court as
reported in AIR 1984 SC 1622 (Sharad Birdhi-Chand Sarada v.
State of Maharashtra). Lastly, he submitted that the present case
15
comes under the category of rarest of rare case and rightly death
sentence has been awarded by the court below.
7. The convict-appellant neither disputed nor challenged the
fact that the death of Lachhandei Gond is homicidal in nature. It may
be noted here that in order to prove the nature of death of
Lachhandei Gond, prosecution has relied on evidence of P.W.9, who
conducted the postmortem examination on the dead body of the
deceased. In course of postmortem examination, P.W.9 found as
follows:
External injuries:
(i) One abrasion of size 2 c.m. x 2. c.m. x skin deep over
right scapular region (two numbers) situated 2 c.m.
apart.
(ii) Abrasion of size 6 c.m. x 7 c.m. x skin deep situated
below right axillar.
(iii) Linear abrasions present over right chest below the
breasts (4 in number). They resembled impression of nail
markings.
(iv) Abrasion of size 2 c.m. x 2 c.m. over right knee.
(v) Bruise situated in the upper neck and lower jaw
region. The whole area is swollen.
(vi) Bruises over the lower neck and both shoulders.
(vii) Half circular shape abrasions seen on both the sides
of neck behind the ear line three in number on each side
and each abrasion is half c.m. dismension.
Internal injuries:
(i) On dissection of the neck large quantity of clotted
blood was found below the skin and in between the
muscles. There was fracture of cricoid bone of the
neck.
(ii) Heart was filled with fluid blood.
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(iii) Stomach was empty.
(iv) No injuries were found in the genetalia and parienial
region. No stains were found and no hair was present in
the perinial area."
8. P.W.9, who proved the postmortem report vide Ext.4 made
it clear that all the injuries mentioned above, were ante-mortem in
nature and cause of death was asphyxia in nature due to
strangulation and it was homicidal in nature. It is important to note
here that this part of the evidence of P.W.9 remains un-demolished
during cross-examination. From all these, it can be deduced that the
nature of death of Lachhandei Gond was/is homicidal in nature.
9. We have gone through the evidence on record carefully. It
appears that P.Ws.6 and 8 are witnesses to a part of occurrence,
namely, the allegation relating to commission of rape by the convict-
appellant on the deceased. Both P.Ws.6 and 8 have deposed that they
have seen the incident of commission of rape by the convict-appellant
on the deceased. On seeing the above noted fact while P.W.6-wife
rushed to the spot; P.W.8-husband came back to the village to call
the villagers. This is a peculiar behaviour by the husband. P.W.6
after reaching the spot, dragged the accused and dealt two slaps to
the accused saying as to why he was committing rape on an old lady.
It is the evidence of P.W.6 that the accused chased her in naked
condition saying that he would also rape and kill her. Accordingly,
P.W.6 ran to the Sahi and came back to the spot along with the
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villagers. By the time P.W.6 and P.W.8 reached the spot they saw the
dead body of the deceased. On being informed by P.W.8, P.W.1, the
informant who happens to be the son of the deceased came to the
spot and found that the convict-appellant was carrying the dead body
of his mother. He along with others detained the convict-appellant
there and rushed to the Police Station to lodge the F.I.R. under Ext.8.
So far as allegation of rape is concerned, P.Ws.1,2,3,4,5,7,10,12 are
post occurrence witnesses. Though the evidence of P.Ws.6 and 8 with
regard to they having witnessed the commission of rape remains un-
demolished in cross-examination, however, the medical evidence
completely rules out allegation of rape. P.W.9, the doctor who
conducted the autopsy, in the cross-examination has clearly stated
that there exists no evidence suggestive of rape and sexual assault.
In the cross-examination, P.W.9 has made it clear that he did not
find any symptom of sexual intercourse being committed on the
deceased prior to her death. Similarly, P.W.14 who examined the
accused clearly stated that he found there was no recent sign and
symptom of sexual intercourse. Thus, we are faced with a situation of
total inconsistency between the evidence of eye-witnesses and
medical evidence. According to Mr. Das, it is well settled that in case
of variance between evidence of eye-witness and medical evidence the
evidence of eye-witnesses will have primacy, but where there is total
18
inconsistency between the evidence of eye-witnesses and medical
evidence then, it would be difficult to convict the accused on the
basis of evidence of eye-witnesses. But, as indicated earlier, Mr.
Pradhan, learned Addl. Government Addl. Government Advocate
relying on several decisions of the Hon'ble Supreme Court contended
that the medical evidence cannot overrule ocular evidence of P.W.6
and P.W.8, which remain un-demolished. In this context, he also
relies on decisions referred to by the learned court below on this
aspect. Here, as indicated (supra), the medical evidence of P.W.9 and
P.W.14 totally rules out any evidence suggestive of rape or sexual
assault prior to the death of the deceased. Therefore, by relying on
the decisions reported in AIR 2008 SC 533 (Kapildeo Mandal and
others v. State of Bihar) and (2009) 11 SCC 566 (State of Uttar
Pradesh v. Dinesh), we have no hesitation to conclude that the
learned court below has gone wrong in recording a conviction under
Section 376 of I.P.C. so far as the convict-appellant is concerned. In
this context, it may be noted here that the decisions cited by the
learned Addl. Government Advocate Sri Pradhan and the trial court
at para-19 of the judgment do not lay down any contrary principles.
In fact AIR 2008 SC 1747/(2008) 13 SCC 515 (Ram Swaroop v.
State of Rajasthan) relied on by the trial court as well as learned
A.G.A. lay down that oral evidence has to get primacy and medical
19
evidence is basically opinionative. It is only when the medical
evidence specifically rules out the injury as claimed to have been
inflicted as per oral testimony, then the court has to draw adverse
inference. Same principle has been reiterated in (2003) 12 SCC 606
(Ramanand Yadav v. Prabhu Nath Jha and others). Rest of the
judgments like (2006) 1 SCC 283 (Vishnu @ Undrya v. State of
Maharashtra), (2004) 10 SCC 692 (Main Pal and another v. State
of Haryana and others), (1979) 4 SCC 349 (Mange v. State of
Haryana), AIR 2008 SC 515 (Mehmood v. State of Uttar Pradesh),
(1992) 3 SCC 204 (Madan Gopal Kakad v. Nawal Dubey and
another) are factually distinguishable. These are not the cases where
like the present case, medical evidence completely ruled out the
version of eye-witnesses. Further, it may also be noted that in the
present case, the chemical examination report, which is marked as
Ext.13 also does not corroborate the evidence of P.Ws 6 and 8
relating to commission of offence of rape. Ext.13 makes it clear that
stains of semen, stains of blood and foreign hairs could not be
detected in the exhibits sent to them under Ext.12. The exhibits
under Ext.12 included Lungi and Nicker of the convict-appellant and
his blood sample, nail clipping and semen. The exhibits under Ext.12
also included the undergarment, waist rope and saree of the
deceased. Further, Mr. Das submitted that P.W.6 in her evidence has
20
stated that at the time of commission of rape, the convict-appellant
was sleeping over the deceased in naked condition and was
committing sex with her. However, P.W.17 in his deposition has
stated that such thing was never stated before him by P.W.6 during
course of investigation. This makes the version of P.W.6
untrustworthy. Accordingly, he wants us to peruse the case diary in
order to draw adverse inference vis-à-vis the version of P.W.6.
Though a perusal of case diary shows that P.W.6 never stated before
P.W.17 that at the time of commission of rape on the deceased, she
was in naked condition and that the convict-appellant in naked
condition was also sleeping on her while committing rape and the
convict-appellant was throttling the neck of the deceased, however,
this Court cannot use the same as evidence in view of express bar
put by Section 172 (2) of the Code of Criminal Procedure, 1973. (See
(2010) 1 SCC 94, (Mohammed Ankoos and others v. Public
Prosecutor, High Court of Andhra Pradesh). The decision cited by
Mr. Das as reported in 1997 Criminal Law Journal 398 (Manohar v.
State of Karnataka) and AIR 1989 SC 144 (Mukund Lal and
another v. Union of India and another), are factually
distinguishable.
With regard to submission of Mr. Pradhan, learned A.G.A.
that absence of injuries on private part of a married lady would not
21
falsify the case of rape, our response would be that there is no
dispute on this proposition of law. But, here is a case the un-
demolished evidence of P.W.9 and P.W.14 totally rules out any
evidence suggestive of rape. It may be noted here that while the
alleged occurrence took place at about 4.00 P.M. on 27.02.2011,
P.W.9 conducted autopsy on 28.02.2011 and P.W.14 examined
appellant on 27.02.2011 itself. In such background decisions like
2007 (3) Crimes, 281 (SC) (B.C.Deva @ Dyava v. State of
Karnataka), 2004 AIR SCW 6479 (Deelip Singh alias Dilip Kumar
v. State of Bihar), (2007) Cr.L.A. (SC) 604 (B.C. Deva @ Dyava v.
State of Karnataka) have no application as those are factually
distinguishable. Similarly, decision cited by Mr. Pradhan, learned
Addl. Government Advocate as reported in (2011) 49 OCR (SC) 136
(Ashok Suraylal Ulke v. State of Maharashtra) is factually
distinguishable as in the present case the victim has died on the
spot.
On a cumulative analysis of evidence available on record,
we hold that the learned court below has gone wrong in convicting
the convict-appellant under Section 376 of I.P.C. For removing the
saree and sleeping over the deceased, the appellant can only be held
guilty under Section 354 I.P.C.
22
10. So far as conviction under Section 302 of I.P.C. is
concerned, we find that there exists no eye-witness to the murder of
Lachhandei Gond. The case against the convict-appellant under
Section 302 of I.P.C. is based on circumstantial evidence. Parameters
of appreciation of circumstantial evidence have been laid down by the
Hon'ble Supreme Court in AIR 1984 SC 1622 (Sharad Biridhichand
Sarda v. State of Maharashtra). Now, we have to see whether
those parameters are satisfied in the present case in order to make
out a case under Section 302 of I.P.C. against the convict-appellant
or not. A combined reading of evidence of P.Ws.6 and 8 brings out
the following picture: The deceased was sitting under the mango tree
near the land of P.W.6 and P.W.8. At about 4.00 P.M. the accused
came there and started removing the saree of the deceased and
committed rape on her. When the deceased cried, P.W.6 rushed to
the spot and P.W.8 ran to the village to call the villagers. According to
P.W.6, when she reached the spot, appellant was sleeping over the
deceased on naked condition and was having sex with her. P.W.6
dragged out the accused and dealt two slaps to the accused for
committing such an act to an old lady. P.W.6 was chased by the
accused with a naked condition saying that he would also commit
rape on her and kill her. So, P.W.6 also ran away to the village. As
per the deposition of P.W.8, he along with the villagers came running
23
to the spot from the village within 10 minutes after the incident. By
the time they reached they found the deceased lying dead on the
ground. Evidence of P.W.8 makes it clear that except he himself and
P.W.6 nobody else was present in his land or the nearby land when
the alleged occurrence took place. Since we have disbelieved the
allegation relating to rape, from the above analysis of evidence, the
following facts can be inferred.
(1) The deceased was sitting under the mango tree near the
land of P.W.6 and PW.8.
(2) At about 4 P.M. the convict-appellant came there started
removing the saree of deceased.
(3) According to P.W.8 at that time, nobody else was present
except him and his wife, P.W.6.
(4) When deceased cried, P.W.6 rushed to the spot and P.W.8
ran to village to call the villagers.
(5) When P.W.6 reached the spot, appellant was sleeping over
the deceased in a naked condition.
(6) P.W.6 dragged out the appellant and dealt two slaps to
appellant for his improper conduct.
(7) Appellant chased P.W.6 saying he would kill P.W.6.
(8) P.W.6 ran to village and later came back with villagers.
(9) P.W.8 came back within 10 minutes with villagers.
(10) By the time P.W.6 and P.W.8 reached the spot Lachhandei
was already dead.
(11) According to P.W.6, the dead body was in the custody of
accused.
The above noted evidence of P.W.6 and P.W.8 remain un-
demolished in cross-examination. Further, P.Ws.10 and 12 who
rushed to the spot after hearing the incident found the accused
carrying the dead body of the deceased on his shoulder. This has
been corroborated by the version of P.W.1, P.W.2 and P.W.6. In
24
addition to that both P.Ws.10 and 12 have stated that they found the
accused going towards 'Masanipada' carrying the dead body on his
shoulder while he was holding the cycle on the other hand. All this
deposition of P.Ws.10 and 12 have remained un-demolished in cross-
examination. P.W.9 in his deposition while proving post mortem
report under Ext.4, has clearly stated that all injuries on decased
was ante mortem in nature and cause of death was asphyxia in
nature due to strangulation and it was homicidal in nature. All those
deposition of P.W.9 remain un-demolished in cross-examination.
Evidence of P.W.1 is that after being informed by P.W.8;
he proceeded to the spot and found his mother already dead. He
found that the convict-appellant was carrying the dead body of his
mother in naked condition. He along with others detained appellant
and deceased and came to police station and lodged F.I.R. being
scribed by P.W.16. All these have remained unshaken in cross-
examination. The above noted version of P.W.1 relating to carrying of
dead body has been corroborated by P.Ws 2, 6,10 and 12. P.W.16 in
his evidence corroborates that as per the instruction of P.W.1, he
scribed F.I.R. (Ext.8). This evidence of P.W.16 remains un-
demolished.
P.W.2 in his evidence has stated that he has seen
appellant carrying the dead body in an almost naked condition. This
25
was also witnessed by P.Ws.6 and 10. P.Ws.6 and 10 corroborate the
above fact. P.W.2 corroborated the inquest report (Ext.1) prepared by
police. He also corroborated seizure of waist thread and a small cloth
of deceased from the spot under Ext.2. P.W.2 also corroborated
seizure of cycle of the appellant under Ext.3. Nothing substantial has
been brought out in the cross-examination to discredit the above
testimony of P.W.2. The statement of P.W.2 with regard to Exts.1,2
and 3 has been corroborated by P.W.17, the I.O.
P.W.3 reached the spot where dead body of deceased was
lying on being informed by P.W.4. He found mark of injury in neck
and bleeding from nostril with swelling of cheek. This evidence of
P.W.3 has been corroborated by P.W.4. The above noted evidence of
P.Ws3 and 4 have remained undemolished in cross-examination.
P.W.5 speaks of accompanying P.W.1 to lodge F.I.R. P.W.7
in his evidence stated that when he reached the spot, Lachhandei
was lying dead and neck and cheeks of the deceased was swollen.
P.W.13 stated that wearing apparels of the deceased were seized as
per Ext.5 in the presence of P.W.13. This corroborates the version of
P.W.17 with regard to seizure of wearing apparels of deceased.
P.W.17 in his evidence proved the inquest report under
Ext.1 and seizure lists under Exts. 2,3,5 and 10. In the cross-
26
examination, he has mainly highlighted on certain statements not
made by P.W.6 during the course of investigation.
P.W.18 in his evidence states that she took up the
investigation from P.W.17 and in course of investigation she made a
prayer to the learned J.M.F.C., Umerkote for sending exhibits to
Regional Forensic Science Laboratory, Berhampur. Accordingly, the
exhibits were sent vide Ext.12. Chemical Examination Report was
received under Ext.13 in response to Ext.12. Vide Ext.12 following
exhibits were sent:
1. One white gray and blue colour check lungi.
2. One faded blue colour nicker.
3. One sealed pocket containing blood, nail clipping,
semen etc. of the accused collected and preserved by
the M.O.
4. One rose and blue cotton under garment of deceased.
5. One waist rope.
6. One yellow colour print saree having white flower and
green print.
As per Ext.13, no stains of blood, semen of foreign hairs could be
detected in exhibits.
11. An analysis of evidence as made above would show that
P.Ws.6 and 8 have stated that the deceased was last seen alive with
the accused at about 4.00 P.M. but around 4.10 P.M. they found the
dead body of the deceased in the custody of the convict-appellant.
Thus, the time gap between the accused and deceased were last seen
alive and the deceased was found dead in the custody of appellant
27
was/is extremely short and the very fact that none else was present
at the spot clearly rules out any person other than the appellant
being the author of crime. Thus, the last seen theory has been
successfully established by the prosecution. In this context, Mr. Das,
submitted that last seen theory cannot be the sole basis for holding a
person guilty of murder. In this context, he relies on a decision of the
Hon'ble Supreme Court as reported in AIR 197 SC 1620 (Lakhanpal
v. The State of Madhya Pradesh). Apart from the fact that the
above noted case is distinguishable on facts, it may be noted that
here besides last seen theory, the court below has correctly held that
in the facts and circumstances of the case, the appellant has failed to
discharge the burden cast upon him under Section 106 of the Indian
Evidence Act, 1872. The deceased and accused were last seen alive at
4.00 P.M, ten minutes thereafter dead body of the deceased was
found from the custody of appellant. Thus, what happened within ten
minutes must be within the special knowledge of appellant only. But,
the appellant has not offered any explanation on this or how the
murder of deceased occurred. This clearly is a circumstance against
him showing his complicity in the crime or murder of the deceased.
Further, in his examination under Section 313 of Cr.P.C., the
convict-appellant also did not offer any explanation with regard to
aforesaid incriminating circumstances. From the evidence of P.W.9, it
28
is clear that the deceased died due to strangulation. However, the
convict-appellant has not offered any explanation as to how the
deceased suffered strangulation and a number of other injuries as
pointed out by P.W.9 in his postmortem report. Further, from the
evidence of P.Ws.2 and 17, it is crystal clear that police has seized
the cycle, waist rope and small clothe (antabastra) of the deceased
from the spot. P.W.9 has further made it clear that all the injuries
suffered by the deceased were ante mortem in nature and death was
homicidal in nature. The evidence of P.Ws.1, 2, 6, 10 and 12 further
shows that while they reached the spot, they found that the accused
was carrying the dead body of the deceased. P.Ws.10 and 12 have
also deposed that the convict-appellant was found going towards
'Masanipada' (burial ground) while carrying the dead body. The above
noted evidence of P.Ws.1,2,6,10 and 12 remains un-demolished in
the cross-examination. Though there are some contradictions relating
to carrying of the dead body by the accused person, however,
according to us this is very minor in nature and in no way affect the
core of the prosecution case. The convict-appellant has also offered
no explanation as to why he was carrying the dead body towards the
burial ground. The conduct of the convict-appellant in carrying the
dead body towards cremation ground presumably for the purpose of
causing disappearance of evidence of murder is relevant to the fact in
29
issue and is also admissible in evidence against him under Section 8
of the Indian Evidence Act. This conduct of the convict-appellant
immediately subsequent to the death of the deceased is a clear
pointer towards his guilt. Accordingly, there exists a host of other
proved facts, from which, it can be inferred that it is the convict-
appellant, who committed the murder of the deceased by
strangulation with the intention of causing her death. Since the
chain of circumstances is complete, therefore, the trial court has
correctly found him guilty under Section 302 of I.P.C.
12. Next contention of Mr. Das is that in a criminal case
motive plays an important role. Since the allegation of rape is found
to have been false, there is no reason as to why the convict-appellant
would do away with the life of the deceased. In this context, he has
relied on the decision reported in AIR 1998 SC 249 (Smt. Omwati v.
Mahendra Singh and others), AIR 2011 SC 72 (Varun Chaudhary
v. State of Rajasthan) and 1999 Criminal Law Journal 5051 (State
of Rajasthan v. Khuma). Though the above decisions are factually
distinguishable, however, AIR 1998 SC 249 (supra) lays down that no
doubt proof of motive is not necessary to sustain a conviction but
when prosecution puts forward and specific case as motive for crime,
the evidence regarding the same has got to be conducive in order to
judge probabilities. AIR 2011 SC 72 (supra) lays down that where
30
there is no eye witness or where there is no scientific evidence to
connect the accused with offence, the prosecution ought to establish
that there is some motive behind commission of offence of murder. In
1999 Cr.L.J 5051 (supra), Rajasthan High Court has laid down that
where the decision of a criminal case depends upon circumstantial
evidence, the motive alleged by prosecution assumes importance. In
such cases, if prosecution fails to establish motive, courts are
required to examine circumstantial evidence with greater caution and
care. It is equally well settled that in cases depending on
circumstantial evidence, if motive is proved, it is well and good but
absence of motive cannot be a ground to reject the prosecution case,
where other proved circumstances are there. (See 1998 SCC (Crl.)
704 (Lekhraj v. State of Gujrat) (1998) 7 SCC 478 (Uday Kumar v.
State of Karnataka), (2010) 10 SCC 439 (Paramjeet Singh v.
State of Uttarakhand), (2011) 12 SCC 554 (Amitav Banerjee v.
State of West Bengal) and (1992) 3 SCC 43 (Mulakh Ray and
others v. Satis Kumar and others).
13. Next, Mr. Das contended that if the convict-appellant was
the author of crime then in all probabilities his nail clippings would
have given positive sign. Since the report of the chemical examiner is
in negative, therefore, scientific evidence is also lacking. It may be
noted here that death in this case has occurred on account of
31
asphyxia due to strangulation. In the postmortem examination, it
was found that nail marks were there in the form of linear abrasion
only at the right chest below the breast. Thus, the negative report on
nail clippings would in no way affect the core of prosecution story, as
described earlier.
14. Lastly, Mr. Das, learned counsel for the convict-appellant
contended that much cannot be read into the allegation that convict-
appellant was found carrying the dead body of the deceased towards
burial ground. In this context, he drew our attention to several
contradictions in the evidence of P.Ws.1, 2, 6, 8 and 10. However,
these contradictions are not very much material as these do not
affect the core story of prosecution that deceased was found dead in
the company of accused, ten minutes after, when both of them were
seen alive and that the convict-appellant has offered no explanation
for the same, particularly when none else was there at the spot.
For the above noted reasons, the challenge of appellant to
his conviction under Section 302 I.P.C. must fail.
15. Now, the question is whether capital punishment is the
appropriate punishment for the case at hand?
16. Mr. Pradhan, vehemently, argued that this is a fit case
where the capital punishment should be awarded and for this he has
relied on the decisions of the Hon'ble Supreme Court reported in AIR
32
1980 SC 898 (Bachan Singh v. State of Punjab), AIR 1983 SC 957
(Machhi Singh v. State of Punjab), 2013 (56) OCR (SC) 689
(Deepakrai and others v. State of Bihar), (2012) 4 SCC 37
(Rajendra Pralhadrao Wasnik v. State of Maharashtra), (1994) 2
SCC 220 (Dhananjoy Chatterjee v. State of W.B.), (1979) 3 SCC
366 (Nathu Garam v. State of U.P.), (1994) 3 SCC 381 (Laxman
Naik v. State of Orissa), (2005) 3 SCC 114 (State of U.P. v.
Satish), (2007) 4 SCC 713 (Shivu and another v. Registrar
General, High Court of Karnataka and another), (2008) 11 SCC
113, (Bantu v. State of Uttar Pradesh), (2008) 15 SCC 269 (Shivaji
@ Dadya Shankar Alhat v. State of Maharashtra) and (2011) 3
SCC 85 (B.A.Umesh v. Registrar General, High Court of
Karnataka).
17. We have gone through the above noted decisions. The first
two decisions lay down the guidelines for imposing the death penalty.
The second decision, i.e., Machhi Singh (supra) and the rest of the
decisions are factually distinguishable. In Machhi Singh case (supra)
and Deepak-rai (supra), there were eye-witnesses unlike the present
case. In Rajendra Prahalad Rao Wasnik case (supra), Dhananjoy
Chatterjee case (supra), Laxman Naik case (supra), Satish case
(supra), Shivu Case (supra), Bantu Case (supra), Shivraji case
(supra), B.A. Umesh case (supra), both charges on rape and murder
33
were proved. But here as we have already held charge relating to rape
has not been proved. In Nathu Garam Case (supra), accused caused
death of a young girl after luring her to home for committing criminal
assault. Thus, the same case is distinguishable on facts. The above
noted cases also reflect other aggravating circumstances.
18. Counsel for the appellant relied on (2013) 55 OCR (SC)
623 (Shankar Kisanrao Khade v. State of Maharashtra), where
despite rape and murder of a minor girl with intellectual disability,
Hon'ble Supreme Court converted the death sentence to
imprisonment for life. He also relied on the case reported in AIR 2013
SC 3622 (Mahinder Singh v. State of Punjab). In that case, the
accused committed murder of his wife and daughter in the
background of inimical relationship between them. In the said case
also, death sentence awarded to the accused has been converted by
Hon'ble Supreme Court to one of life imprisonment. Mr. Das, also
drew our attention to a decision of Hon'ble Supreme Court, i.e,
Bishav Prasad Sinha v. State of Assam (2007) 11 SCC 467, which
involved rape and murder of a child aged 7 to 8 years. There, the
Hon'ble Supreme Court has held that if the prosecution case is
proved by circumstantial evidence, ordinarily death penalty should
not be awarded. In the present case, the court below, while imposing
death sentence was swayed by the conviction of the convict-appellant
34
under Section 376 of I.P.C. Here, as indicated earlier, no case under
Section 376 of I.P.C. is made out against the convict-appellant.
Besides that though the court below has taken into account the same
mitigating circumstances in favour of the convict-appellant, however,
it has also missed the other mitigating circumstances in favour of
him. There are absence of criminal antecedents of the convict-
appellant and further that there exists no proof to show that the
convict-appellant would be a permanent threat to the society at large.
There also exists no report of bad behaviour while the convict-
appellant is in custody. Additionally, also there is no evidence to the
effect that he cannot be reformed and rehabilitated. In drawing the
balance sheet of aggravating and mitigating circumstances, it is well
settled that the mitigating circumstances would be accorded full
weightage and a just balance has to be struck before the opinion is
exercised. It is well settled that in a civilized society a tooth for a
tooth and an eye for an eye ought not to be criterion to clothe the
case with "rarest of rare" jacket and courts must not be propelled by
such notions in haste to award capital punishment. Taking into
account the entirety of the circumstances and balancing the
aggravating and mitigating circumstances, we are of the considered
opinion that sentence of death imposed on the convict-appellant
should be commuted to imprisonment for life.
35
19. In the result, we uphold the conviction of the convict-
appellant under Section 302 of I.P.C., but set aside the punishment
of death imposed on him and accordingly modify the sentence to the
punishment of imprisonment for life. Simultaneously, we set aside
the conviction of the convict-appellant under Section 376 of I.P.C.
and hold him guilty under Section 354 of I.P.C. and impose a
punishment of two years of R.I. on him. Both the sentences are to
run concurrently. The reference made by the learned Sessions Judge
is accordingly discharged and Criminal Appeal filed by the appellant
is partly allowed.
The DSREF and Criminal Appeal are accordingly disposed of.
....................................
BISWAJIT MOHANTY, J.
PRADIP MOHANTY, J.I agree .................................... PRADIP MOHANTY, J.
High Court of Orissa, Cuttack Dated day of February, 2014/bns