Orissa High Court
State Of Orissa vs Mata Munda And Others on 23 June, 2017
Author: Biswajit Mohanty
Bench: I. Mahanty, Biswajit Mohanty
ORISSA HIGH COURT: CUTTACK
DSREF No.03 of 2015
and
JCRLA No.70 of 2015
Arising out of the judgment of conviction dated 21.11.2015 and order of
sentence dated 23.11.2015 passed by the learned Addl. Sessions Judge,
Champua in S.T. No.09 of 2013.
DSREF No.03 of 2015
State of Orissa ...... Appellant
-versus-
Mata Munda and others ...... Respondents
For Appellant : Mr. Janmejaya Katikia, A.G.A
For Respondent : Mr. Debashis Panda & Mr.D.P.Dhal,
Amici Curiae
JCRLA No.70 of 2015
Mata Munda and others ...... Appellants
-versus-
State of Orissa ...... Respondent
For Appellants: Mr. Debashis Panda & Mr.D.P.Dhal,
Amici Curiae
For Respondent: Mr. Janmejaya Katikia, A.G.A
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Date of Judgment:23.06.2017
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE I. MAHANTY
AND
THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY
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Biswajit Mohanty, J. Since both the Death Reference and Jail
Criminal Appeal arise out of the judgment of conviction dated
2
21.11.2015 and order of sentence dated 23.11.2015 passed by the
learned Addl. Sessions Judge, Champua in S.T. Case No.9 of 2013, these
were heard together and are disposed of by this common judgment.
2. By the impugned judgment and order, all the four convicts have
been sentenced to capital punishment under Sections 302/34 IPC.
Further, all of them have been sentenced to imprisonment for life under
Section 376(2)(g) of I.P.C. They have also been senteneced to undergo R.I.
for five years under Sections 201/34 IPC. The learned trial court has
made it clear that both the sentences under Sections 376 (2) (g)/201/34
IPC are to run concurrently. No sentence exists with regard to payment
of any fine. The reference made by the learned trial court under Section
366 of Cr.P.C. for confirmation of death sentence has been registered as
DSREF No.3 of 2015 and the appeal preferred by all the four convicts
has been registered as Jail Criminal Appeal No.70 of 2015.
3. The case of the prosecution in brief is that on 1.8.2012 the
deceased girl, namely, Bindhia Mahakud aged about 13 years, a student
of Class-VIII of Barbil Municipality High School had gone to attend the
tuition under P.W.5 at 7.00 A.M. She was expected to return by 9.00
A.M. But as she did not return to her house by 9.00 A.M., the informant
(P.W.1) gave a phone call to P.W.5, the tuition teacher, who replied that
the deceased has left for her house after tuition at about 9.00 A.M. In
such background, P.W.1 (informant) along with his relatives (P.Ws.2,4
and 9 and others) searched for the deceased in different places and
around 2.00 P.M., the dead body of the deceased was found inside
Baghiahudi jungle in a naked condition with a piece of cloth in her
3
mouth and various injuries on her person. Then, P.W.1 along with others
brought the deceased to Barbil Hospital and around 4.00 P.M. of the
same day, P.W.1 lodged F.I.R. under Ext.1 indicating therein that his
daughter has been raped and murdered by somebody. Basing on such
information, P.W.29, the first I.O. registered Barbil P.S. Case No.128 of
2012 and took up investigation of the case. During investigation, inquest
was held and on the same day, i.e., 1.8.2012, P.W.11 conducted the
postmortem examination over the dead body. Further, in course of
investigation, various witnesses were examined and on 13.8.2012,
convicts-Mata Munda, Jiten Munda and Biswanath Gope @ Naru were
arrested. On 13.8.2012 Mata Munda led to recovery of a "Dauli", the
weapon of offence after his statement was recorded under Ext.20 and
accordingly, seizure memo was prepared under Ext.8. Similarly, on
13.8.2012 Jiten Munda led to recovery of black colour School bag, some
torn books, one ball pen and a rolling khata after his statement was
recorded under Ext.21 and accordingly seizure memo was prepared vide
Ext.22. On 6.9.2012, convict Tapu @ Mangal Purty @ Suri was arrested
by P.W.29. Further, during course of investigation, several other
incriminating things were seized which have been marked as Exibits. On
25.9.2012, the investigation was taken over by P.W.28, who is the
second I.O. He sent the wearing apparels and biological sample of the
deceased as well as convicts along with one "Dauli" to S.F.S.L.,
Rasulgarh, Bhubaneswar for chemical examination. On 5.12.2012, he
submitted the charge sheet against the present four convicts under
Sections 376 (2) (g)/302/201/34 IPC showing Harjeet Singh @ Saka @
4
Kana, Bablu Sandil and Sikandar Singh @ Sachindar as absconders.
Since the alleged offences were triable by Court of Sessions, the case was
commited to the court of learned Addl. Sessions Judge, Champua for
their trial. Learned trial judge framed charges under Sections 376 (2)
(g)/34 IPC, Section 302/34 IPC and under Section 201/34 IPC; to which
the convicts pleaded not guilty and claimed to be tried. Accordingly, they
faced trial in S.T. No.9 of 2013.
4. In order to prove its case, in S.T. Case No.9 of 2013, the
prosecution examined as many as 29 witnesses including the doctors
and investigating officers besides exbiting 28 documents. In their
statements under Section 313 Cr.P.C., the convicts took the plea of
denial. Further, these convicts did not choose to examine any witness in
support of their defence. On culmination of trial, all the four appellants
were found guilty for commission of offences punishable under Sections
376(2)(g)/302/201/34, I.P.C. and convicted thereunder and sentenced
as described herein before. In coming to such a conclusion, the learned
trial court mainly relied the version of P.W.20 and the eye-witness
version of P.W.16. He has also relied on statements of convicts-Mata
Munda and Jiten Munda recorded under Section 27 of the Indian
Evidence Act, 1872 implicating all the convicts and the evidence of
P.W.11, the Doctor conducting Post Mortem report. On 18.6.2013, one of
the absconders, namely, Harjeet Singh @ Saka @ Kana was arrested and
his case was committed to the court of learned Additional Sessions
Judge, Champua for his trial. He stood his trial in a separate S.T. Case
No.96 of 2013 and was convicted likewise. For this, he has filed JCRLA
5
No.69 of 2015 before this Court and the reference made by the learned
trial court for confirmation of his death sentence has been registered as
DSREF No.04 of 2015.
5. Mr. Debashis Panda and Mr. D.P. Dhal, learned Amici Curiae
appearing for the convicts-appellants advanced the following arguments:-
(a) The learned trial court should not have relied upon the evidence
of P.W.16, as he was examined by the police, seven days after the date of
occurrence. In this connection, they relied on a decision of the Supreme
Court in the case of State of Orissa v. Mr. Brahmananda Nanda
reported in (1976) 4 SCC 288. Further, P.W.16 has not been supported
by P.W.21, who happens to be his brother. This is also one of the reasons
as to why the learned trial court should not have believed the version of
P.W.16.
(b) With regard to the evidence of P.W.20, both the learned Amici
Curiae submitted that his evidence ought not to be believed on account
of his peculiar behaviour, who despite claiming to have witnessed lifting
of the deceased by Mata Munda and Jiten Munda at about 9.30 A.M.
morning, chose to remain silent in the matter till evening without coming
to the help of the deceased and by not informing the police authorities
immediately. According to the learned Amici Curiae, he has not seen any
thing and is a set up witness and his version ought not to be believed.
Further, from his own evidence, it is clear that he has been examined by
the police 11 days after the date of occurrence though he claimed to have
narrated the incident on the same day evening to one A. Ramachandra
Naik, A.S.I., who has not been examined in this case. All these make the
6
version of P.W.20 suspicious and his evidence ought not to have been
relied upon by the learned trial court.
(c) The learned trial court according to them has gone wrong in
convicting Biswanath Gope @ Naru & Tapu @ Mangal Purty @ Suri as
neither P.W.16 nor even P.W.20 while stating the names of convicts-Mata
Munda and Jiten Munda, has not named these two persons. Thus,
according to them, there exists no evidence against Biswanath Gope @
Naru & Tapu @ Mangal Purty @ Suri to implicate them in this case.
(d) There exists no evidence to show any pre-planning/prior
concert for committing the crimes for which they have been convicted.
Further according to them, the circumstancial evidence for arriving at a
conclusion of muder being committed by the convicts is not fool-proof as
the chain of circumstance is not complete. In such circumstances, the
conviction under Sections 302/34, I.P.C. is legally vulnerable.
(e) By not examining Rebati Behera about whom P.Ws. 2, 3,4 and
13 have deposed; the presecution has deliberately withheld an important
witness and this should be viewed unfavourably, in the background of
Section 114 (g) of the Indian Evidence Act, 1872.
(f) A scanning of evidence of P.W.11 according to both the learned
Amici Curiae for the convicts and more particularly the nature of injuries
described by P.W.11 cannot lead to a conclusion that this is a case of
gang rape.
(g) Learned trial court has gone wrong in relying on the entire
statements of Mata Munda and Jiten Munda as rendered under Section
27 of the Indian Evidence Act, travelling beyond the well defined
7
requirements under Section 27 of the Indian Evidence Act. The learned
trial court has unnecessarily believed the entire statements of the
convicts-Mata Munda and Jiten Munda involving the present convicts
forgetting the requirements of Section 27 of the Indian Evidence Act,
1872 as has been made clear by the decision of Privy Council in
Pulukuri Kottaya and others v. Emperor reported in AIR (34) 1947
Privy Council 67. Both the learned Amici Curiae further submitted that
evidence even with regard to recovery of "Dauli", "School bag", "Ball Pen"
& "Books" is inadmissible, as these were never produced and proved
before the learned trial court. Since these were never produced, these
could never be confronted to the seizure witnesses - P.Ws.10 and 15.
Further, the "School bag", "Ball Pen" & "Books" could not be confronted
to the father of the deceased- P.W.1, mother of the deceased- P.W.2,
sister of the deceased-P.W.3, and brother of the deceased-P.W.4 for
identification. Therefore, the discovery of "Dauli", "School bag", "Ball
Pen", "Books" & "Khatas" are of no consequence and should have been
ignored by the learned trial court. Instead of doing that, the learned trial
court wrongly placed reliance on these materials.
6. In such background, both the learned Amici Curiae pointed out
that the Jail Criminal Appeal should be allowed and the death reference
be discharged by setting aside death sentence. However in the alternative
they submitted that even if this Court comes to a conclusion that all the
four convicts are the authors of crime as has been found by the learned
trial court even then in the factual background of the present case,
imposition of death penalty is uncalled for as the learned court below has
8
not discussed all the mitigating factors in favour of the convicts.
Secondly, prosecution has not led any evidence with regard to probability
of convicts committing criminal acts in future so as to constitute
continuing threat to the society and with regard to probability that the
convicts can not be reformed and rehabilitated. Further, they submitted
that since there exists no proof of criminal antecedents against the
convicts, this is another mitigating factor in their favour. Lastly they
submitted that out of the seven accused pesons, five have been convicted
while two are absconding. In case after execution of death sentence, the
two absconding accused are arrested and after such arrest, they confess
to have committed murder for some other reason after the departure of
the five convicts from the scene of occurrence, then the confirmation of
death sentence would constitute grave miscarriage of justice. They
argued that unlike any other punishment, a capital punishment is
irrevocable. Further, since there exists no direct evidence relating to
murder of the deceased being committed by present convicts, in such a
situation, the capital punishment is uncalled for. In this context, they
relied on the decisions of the Supreme Court in Shankar Kisanrao
Khade v. State of Maharashtra reported in (2013) 55 OCR (SC) 623
and State of Maharashtra v. Nisar Ramzan Sayyed reported in
2017 (4) Supreme 204.
7. Mr. J.Katikia, learned Addl. Government Advocate while
supporting the judgment and sentence of conviction of the learned trial
court, submitted that on account of delay in examining P.W.16 the
version of the eye-witness-P.W.16, cannot be disbelieved as he was
9
threatened to be killed by convict-Mata Munda. In addition to this,
P.W.11 has also corroborated the commission of rape by deposing that
the genital injury on deceased strongly suggest sexual assault. In this
context, he relied on the decision of the Supreme Court in Banti @
Guddu v. State of Madhya Pradesh reported in (2004) 1 SCC 414.
Relying on the said decision, Mr. Katikia submitted that unless the
Investigating Officer is categorically asked as to why there was delay in
examination of the witness, the defence cannot get any advantage
therefrom. Here, admittedly no such question was asked by the defence
to any of the I.Os. With regard to the evidence of P.W.20, he submitted
that the same partly corroborates the version of P.W.16 with regard to
lifting of the deceased. Merely, because P.W.20 did not come forward to
report the matter to the police immediately, his version cannot be
rejected on the ground that he is a set up witness. Further, with regard
to both P.W.16 and P.W.20, defence never made any suggestion during
cross-examination that they were enmically disposed towards the
convicts. With regard to argument of learned Amici Curiae relating to
absence of planning and motive, Mr. Katikia, learned Addl. Government
Advocate submitted that the version of P.Ws.16 & 20 would show that
there was pre-planning amongst the convicts to commit the crime. With
regard to non-examination of Rebati Behera, Mr. Katikia, learned Addl.
Government Advocate submitted that none of the P.Ws.2,3,4 and 13 who
deposed about her, told anything about Rebati Behera to have narrated
anything with regard to either rape or murder. In such background, for
non-examination of Rebati Behera, no adverse inference can be drawn.
10
As regards the argument that P.W.11 nowhere says that the deceased
was a victim of gang rape, Mr. Katikia, learned Addl. Governemnt
Advocate relying on Explanation-(1) to Section 376 IPC as it stood on the
date of occurrence submitted that it is clear that where a woman is raped
by one or more in a group of persons acting in furtherance of their
common intention, each of the persons shall be deemed to have
committed gang rape within the meaning of sub-section (2) of Section
376 IPC. Further, he argued that with regard to conviction for commiting
the offence of murder, the convicts were last seen with the deceased as
stated by P.W.16 and P.W.20 at about 9.30 to 10.00 A.M. on 1.8.2012
and the dead body was located inside the jungle at around 2.00 P.M. of
the same day and the convicts have offered no explanation in their
statements under Section 313 Cr.P.C. Further, as per the evidence of
P.W.11, who carried out the postmortem at 9.00 P.M. on 1.8.2012, the
time since death was within 6-12 hours. Further, convicts-Mata Munda
and Jiten Munda gave recovery of "Dauli", "School bag" and other
materials respectively pursuant to their statements before the police.
Thus, there existed enough circumstantial evidence to come to a
conclusion that the convicts were the authors of the murder of the
deceased. In such background, he submitted that the learned trial court
has correctly convicted the appellants under Sections 376 (2)
(g)/302/201/34 IPC and awarded the various sentences. Further, he
submitted in the facts and circumstances, the capital punishment as
awarded by the learned trial court ought not to be touched. In this
context, he relied upon the decisions of the Supreme Court in Bachan
11
Singh v. State of Punjab reported in (1980) 2 SCC 684, Machhi
Singh and others v. State of Punjab reported in (1983) 3 SCC 470,
Laxman Naik v. State of Orissa reported in (1994) 3 SCC 381,
Vasanta Sampat Dupare v. State of Maharashtra reported in (2015)
1 SCC 253 and Purusottam Dashrath Borate and another v. State of
Maharashtra reported in (2015) 6 SCC 652.
8. In the alternative, Mr. Katikia, learned Addl. Government Advocate
submitted, in case, while upholding the conviction under Section 302/34
IPC, this Court feels not inclined to impose capital punishmenet and
wishes to alter the same, then the convict should be sentenced to
minimum 25-35 years of imprisonment without remission or they should
not be released till the rest of their natural lives. In this context, learned
Addl. Government Advocate relied on the decisions of the Supreme Court
in Swamy Shraddananda @ Murali Manohar Mishra v. State of
Karnataka reported in (2008) 5 Sup.482, Raj Kumar v. State of
Madhya Pradesh reported in (2014) 5 SCC 353, Selvam v. State
through Inspector of Police reported in (2014) 12 SCC 274 and the
decision of this Court in State of Orissa v. Ardhu Chendreya reported
in (2010) 47 OLR 953.
9. Perused the L.C.R.
10. It is not disputed that the deceased was sexually assaulted and
met with a homicidal death. This has been clear as per the evidence of
P.W.11. Now, it is to be seen as to who are the authors of crime. For this,
we have to analyse oral and documentary evidence available in the L.C.R.
12
P.W.1 is the father of the deceased and informant in the present
case. In his deposition, he has stated that he knew all the convicts and
the occurrence took place on 1.8.2012 (Rakhipurnima day) at
Bagiyahudi jungle of Belakundi. According to him, the deceased was
reading in Class-VIII. She used to go to attend the tuition class under a
lady teacher who was residing near Forest Guest House at Barbil. On the
date of occurrence during morning hour, she went to tuition by walking
and was returning from the tuition class at about 9.00 A.M. When she
did not return, P.W.1 gave a phone call to the tuition teacher, who
answered that the deceased has left her house after tuition at about 9.00
A.M. Not convinced, P.W.1 went to the tuition teacher's house and
contacted her personally and got confirmed from her that his daughter in
fact had left her house at about 9.00 A.M. after tuition. Then, he also
contacted fellow classmates of his daughter and became confirmed of the
fact that his daughter has left the house of the tuition teacher at about
9.00 A.M. after tuition. Thereafter, he searched for his daughter and
while searching, he could get the brief (underwear) of his daughter,
which was identified by his wife (P.W.2), who was also searching for the
deceased daughter. During search, P.W.1 was joined by many co-
villagers and the dead body of his daughter was located lying about 150
meteres away from the place where the brief of the deceased was lying, in
a naked condition. He found the dead body with a piece of cloth pushed
into the mouth with cut injuries. According to him, there was bleeding
injuries along with white discharge from her vagina and they put the
brief on the dead body and took her to Barbil medical. From the above
13
condition, he suspected that his daughter has been raped and murdered
by some pesons and accordingly he reported the matter to the police. He
proved Ext.1 dated 1.8.2012 as F.I.R. He was examined by the police,
and, thereafter, police held inquest over the dead body and accordingly
prepared the inqeust report (Ext.2). In his cross-examination, he has
stated that he has not seen the occurrence and has no direct knowledge
about the same. The police scribed the F.I.R. as per his narration. When
he first saw the dead body, his brother (P.W.13) was there with him.
Further according to him, injuries caused to his daughter appeared to
have been caused by the blunt side of a weapon. On the day after the
occurrence, he heard from the villagers that the convicts were the
authors of the crime. Accordingly, he informed the police about the above
fact. He denied a suggestion that he had never stated before the police
that when he detected the naked body, he found a piece of cloth gagged
into her mouth and there was bleeding injuries and presence of white
discharge on her vagina.
P.W.2 is the mother of the deceased and wife of P.W.1, who in her
deposition has stated that she knew the convicts since they are co-
villagers and the occurrence occurred on 1.8.2012. She reiterated the
story as given out by P.W.1 relating to the deceased going for tuition with
a lady teacher and when the deceased did not return by 9.30 A.M., P.W.1
went to the house of the tuition teacher and from there he learnt that the
deceased after completing her tuition had left the house of the tuition
teacher at about 9.00 A.M. On the way, P.W.1 met one Rebati Behera
who informed that she had seen the deceased-daughter returning after
14
tuition class by walking along the road near Baghiahudi jungle.
Thereafter, she (P.W.2) and her husband-P.W.1 and others searched for
her inside the jungle and P.W.1 could locate a brief (underwear), which
P.W.2 identified as the brief belonging to his deceased daughter.
Thereafter, they searched for the deceased and ultimately could locate
the naked body with a piece of cloth pushed into the mouth and a small
rope tied to her neck with injuries on her chest and her vagina was
bleeding with white discharge. They put the brief on the decased and
removed her to the Barbil medical, where she was declared dead. From
the injury and circumstances, she believed that the deceased was raped
and then killed. In her cross-examination, she admitted that she never
stated before the police that she found the injury on the person and
vagina of the deceased. She also admitted that she had not seen the
occurrence and thus she did not have any direct knowledge about rape
and murder. She also stated that the dead body was found at around
2.00 P.M. and on the date of occurrence, the deceased was wearing a two
piece dress having mixed white colour and green. Thus, broadly P.W.2
corroborates the evidence of of P.W.1.
P.W.3 is the sister of the deceased, who in her deposition stated
that on the date of occurrence during morning hour at about 7.00 A.M.,
the deceased went to take tuition to the house of her tuition teacher
which is located near a forest bunglow of Barbil. She was supposed to
return at about 9.00 A.M. As she did not return, P.W.1 contacted with
her friend and could know that after tuition, she left the house of her
tuition teacher and thereafter, P.W.1 and some other co-villagers went in
15
search of the deceased and on the way one Rebati Behera told him that
she had seen the deceased near Baghiahudi jungle on the public road
while returning from tuition. Thereafter, P.W.1 could locate the brief
(underwear) of her sister, which was identifeied by her mother-P.W.2 and
thereafter the dead body was located near the tree inside Baghuahudi
jungle with a piece of cloth in her mouth and injury on the dead body. In
her cross-examination, she admitted that she never accompanied P.W.1
and P.W.2 for searcing the deceased. Her information about occurrence
was based on information received from P.W.1 and P.W.2 and co-
villagers.
P.W.4 is the brother of the deceased. He deposed that the
occurrence took place on 1.8.2012 during morning hour. The deceased
used to go to take tuition from a private tutor at about 7.00 A.M. and
return at about 9.00 A.M. On the date of occurrence, as she did not
return, P.W.1 went to the tuition teacher, where he learnt that the
deceased had already left after taking tuition, and, thereafter, P.W.1
contacted her friend and could know that in fact after tuition, she was
returning to the house. Thereafter, P.W.1 started searching and on the
way, it was informed by one Rebati Behera that she had seen the
deceased while returning from tuition along the public road near
Baghiahudi jungle. Thereafter, P.W.1 and P.W.2 along with others went
to Baghiahudi jungle in search of the deceased. He (P.W.4) also
accompanied them. Initially, the brief (underwear) of the deceased was
located. On further search, the dead body was found lying under a tree
in a naked condition with a herbal rope tied to the neck with injuries on
16
her chest and body. Thereafter, the victim was removed to the medical,
where she was declared dead. In his cross-examination, he has stated
that he saw the dead body at about 2.00 P.M. and P.W.3 was all along
present in her house and she was informed about the death of the
deceased in the evening. He denied a suggestion that he has not stated to
the police that there were injuries on the person of the deceased sister
when they located her dead body. Thus, the evidence of P.W.4 broadly
corroborates the evidence of P.Ws.1 and 2.
P.W.5 is the tuition teacher, who stated that on the date of
occurrence, the victim had come to her to take private tuition from 7.00
A.M. to 9.00 A.M. After 9.00 A.M. she along with others left for their
respective house. Around 9.30 A.M. to 10.00 A.M., P.W.1 telephoned her
and wanted to know if the victim had left her house after taking tuition
and she answered in the affirmative. On that date at about 3.00 P.M.,
she heard that the victim had been murdered after being raped by some
persons. She denied knowing the convicts. In her cross-examination, she
stated that the victim was a student of Class-VIII and she never
maintained any register for the student who took tuition from her. She
denied the suggestion that she has not stated to police that P.W.1 had
telephoned her to know if the victim had left her house after taking
tuition.
P.W.6 is the doctor, who had examined convict-Mata Munda on
13.8.2012 and found him capable of doing sexual intercourse. On the
same day, on police requision he had also examined convict-Jiten Munda
and found him capable of doing sexual intercourse. However, he did not
17
find any physical clue of recent sexual intercourse from the clothings
worne by Mata Munda and Jiten Munda. He proved Exts. 3 and 4. The
defence declined to cross-examine P.W.6.
P.W.7 happens to be the President of Mahila Mahasangha
Samabaya Samiti and a social worker. In her deposition, she stated that
she did not know about the convicts. The occurernce took place on
1.8.2012 at Belakundi jungle. On that date while she was present in her
office, one Ashok Prajapati telephoned her from the medical informing
her about rape and murder of a young girl. She reached the medical at
around 4.00 P.M. and found a number of critical injuries on the dead
body. She also stated that there was bleeding injury on the private part
of the victim. In her presence, police held inquest and she signed the
inquest report. In her cross-examination, she stated that she did not
know the convicts.
P.W.8 is the doctor, who examined convict-Biswanath Gope on
13.8.2012 and found him capable of doing sexual intercourse but he did
not find any physical clue from the wearing apparels of Biswanath Gope.
He also stated that Biswanath Gope was already married having three
children. On 6.9.2012 on police requistition, he examined convict-Tapu
@ Mangal Purty @ Suri and found him capable of doing sexual
intercourse. But he did not find any physical clue of alleged sexual
intercourse on his wearing apparels. He also stated that convict-Tapu @
Mangal Purty @ Suri is a married peson having four children. He also
stated that possibility of recent sexual intercourse could not be ruled
out. He further stated that on 12.8.2012, on police requistiion, he
18
examined Mata Munda. He proved Exts.5,6 and 7. In the cross-
examination, he reiterated that Biswanath Gope and Tapu @ Mangal
Purty @ Suri are capable of doing sexual intercourse, as they have
fathered children.
P.W.9 happens to be the younger brother of P.W.1 (informant). In
his deposition, he has stated that he knew the convicts present in a
dock. The occurrence took place on 1.8.2012 (Rakhipurnima day). On
that day, after taking tuition though the deceased left the house of the
tuition teacher at about 9.00 A.M., as she did not return, her tuition
teacher was contacted and they could know that she had left her tution
teacher at about 9.00 A.M. Therefter, a search was launched for the
deceased and initially a brief was located. Then, the dead body was found
near a Kusum Tree in a naked conditon at Baghiahudi jungle. The body
was removed to Barbil Medical where she was declared dead. Thereafter,
the matter was reported to police. Police held inquest over the dead body.
After postmortem, it could be known that the deceased was raped and
subsequently killed. He also referred to the confessional statement of
Mata Munda. In his cross-examination, he stated that Mata Muna
confessed his guilt while the police personnel were present. He however
admitted that he did not have any direct knowledge about the
occurrence, but he deposed that P.W.10 was prsent when Mata Munda
confessed his guilt. P.W.9 broadly corroborates the evidence of P.Ws.1,
2,4 and 10.
P.W.10 in his deposition made it clear that he knows only Mata
Munda and not other convicts. According to him, the occurrence took
19
place on 1.8.2012 (Rakhipurnima day). After taking tuition, the deceased
had left house of the tution teacher at 9.00 A.M. As she did not return,
her tuition teacher was contacted and it could be known that the
deceased had left the house of her tuition teacher at about 9.00 A.M.
Thereafter, he along with others searched for the deceased. Initially, a
brief was located, then, the dead body was found lying naked under a
Kusum tree near Baghiahudi. Immediately, the dead body was removed
to Barbil medical where she was declared dead. Thereafter, the matter
was reported to the police. Accordingly, police held inquest over the dead
body and after postmortem report, it could be known that the deceased
was raped and subsequently murdered. On 13.8.2012, the convicts were
arrested and Mata Munda admitted his guilt and he also proved his
signature marked as Ext.2/4 on the inquest report (Ext.2). In his cross-
examination he has staed that when Mata Munda confessed his guilt,
police personnel were present. However, he admitted that he did not have
any direct knowledge about the occurrence. P.W.10 broadly corroborates
P.W.9 and with regard to search, finding of brief and location of the dead
body he broadly corroborates the version of P.Ws.1,2 and 4.
P.W.11 conducted the postmortem examination and noted a
number of external injuries in the form of bruises, abrasion and
lacerated injury. She also noted six internal injuries including rupture of
hymen and presence of blood clot in the genital of the deceased. P.W.11
opined that the cause of death was due to asphyxia on account of
mechanical pressure on chest and neck. Time since death was within 6-
12 hours at the time of postmortem examination, which was conducted
20
on 1.8.2012 at 9.00 P.M. She also stated that the genital injury strongly
suggest a sexual assault and nature of death is homicidal. She also
stated that on 20.8.2012, the weapon of offence, 'Dauli' was produced
before her for seeking her opinion as to if the injuries found upon the
dead body could be possibly done by that 'Dauli'. She answered that
query in the affirmative. The reply to the query was proved by her as
Ext.11. She also stated that since she received the dead body at the
initial stage, she drew up a casuality memo and reported the matter to
the police at 3.45 P.M. In her cross-examination, she stated that she
could not say as to who produced the dead body before her as the same
has not been noted in the casuality memo under Ext.12. She also opined
that it is not possible for a robust boy to commit forcible rape against a
young girl by embracing her upon the land. She also stated that
asphyxial death cannot be possible unless mouth and nustril are forcibly
closed.
P.W.12 is a witness to the inquest. In the cross-examination, he
stated that he had no knowledge about the occurrence.
P.W.13 has stated that 1.8.2012 was a holiday and thus his
children did not attend the school. Though he used to give lift to the
deceased; on that date, the deceased went to take tuition by walking.
After taking tuition, she returned by walking but did not reach her
house. Thereafter, P.W.1 enquired from the tuition teacher and came to
know that after her tuition at about 9.00 A.M., the deceased had left her
house. In such background, P.W.13 along with the parents of the
deceased and others came for searching. On the way, they met Rebati
21
Behea, who told them that she had seen the deceased coming along the
road near Baghiahudi. Thereafter, they went to Baghiahudi and first
located a brief, which was identified by P.W.2. On further search, the
naked dead body of the daughter of the victim was located and her neck
was found tied by a herbal branch. Thereafter, they removed the victim
to Barbil medical where she was declared dead. Later on, inquest was
held and he learnt that Mata Munda and other accused persons have
committed rape and murder of the victim. In his cross-examination, he
stated that by 2.8.2012, he had knowledge that the victim was raped and
murdered by the convicts. However, he admitted that he has not stated
before police that the convicts raped and murdered the victim. Further,
he stated that one shepherd boy of their village told him to have seen the
convicts commiting rape and murder. Thus, P.W.13 broadly corroborates
the version of P.Ws.1,3,4,9 and 10 relating to non-return of the victim to
her residence, finding of the brief and location of the dead body.
P.W.14 is the constable attached to Barbil P.S. Accoding to him on
1.8.2012, P.W.8 produced the wearing apparels of the deceased before
P.W.29, who seized the same as per the seizure list, Ext.24, as found
from LCR. On 3.8.2012, P.W.23 produced a cassettee of postmortem
examination before the I.O. which was seized as per the seizure list,
Ext.14, as found from LCR. On 13.8.2012, the I.O. seized the wearing
apparels of the convicts as per five seizure lists marked as Exts. 9/1,
15,18,23/01 and 27, as found from from LCR. In his cross-examination,
he made it clear that seizures were effected in his presence and he
denied a suggestion that nothing has been seized by the police.
22
P.W.15 is the neighbour of P.W.1. According to him, he knew the
victim as well as the convicts, who are the co-villagers. The occurrence
took place on 1.8.2012. On that day, victim had been to take tuition from
her tuition teacher, who resided near the forest office, Barbil. As she did
not return, his family members and he himself searched for her, located
her dead body with injury on her chest. Then they removed the victim to
the medical, where she was declared dead. He also stated that convict-
Mata Munda confessed his guilt before police in his presence and
disclosed that he assaulted the victim on her chest by blunt side of
'Dauli' consequent upon which she was killed. Then he concealed the
'Dauli' under a simulia tree. His statement was recorded by the police,
and, thereafter, he led the police to the place of concealment of 'Dauli'
and gave recovery of the same. The seizure list pertatining to the seizure
of 'Dauli' was proved by him. He also stated that the wearing apparels of
convict-Mata Munda were seized by the police. In the cross-examination,
he stated that Mata Munda gave his statement which was recorded by
the police under Section 27 of the Indian Evidence Act at the police
station about 12-13 days after the occurrence. The seizure list in respect
of 'Dauli' was prepared at the spot of recovery. He denied a suggestion
that nothing has been seized in his presence and he is deposing
falsehood. He admitted that the victim was his niece by village courtesy.
P.W.16 appears to be the eye-witness with regard to commission of
offence of rape. In his deposition, he stated that he knew the victim and
all the convicts present in the dock. On the date of occurrence, i.e.,
Rakhipurnima day of 2012 at about 10.00 A.M., he saw the convict-Mata
23
Munda bringing victim to Baghiahudi jungle where he and convict-Jiten
Munda committed rape. When he saw the act of rape, convict-Mata
Munda threatened to kill him, if he disclosed the fact to anybody. Out of
fear, he left the place of occurrence and went to his house and reported
the matter to his brother-Jamda Khadayat, who informed the incident to
P.W.1. Since he was grazing cattle in Baghiahudi jungle, he had the
chance to witness the occurrence. He had not seen the other convicts
since they were concealing their presence in the nearby area. He also
stated that he reported the matter to Joker Khandayat who is one of his
brothers. In his cross-examination, he stated that he was alone present
in Baghiahudi jungle and grazing cattle. He denied a suggestion that he
had not stated to the police that Mata Munda threatened to kill him if he
disclosed the fact to anybody and that convicts-Mata Munda and Jiten
Munda raped the victim. He also denied a suggestion that he knew
nothing about the occurrence and deposing falsehood at the instance of
P.W.1 since he happens to be a co-villager. After two days of occurrence,
he learnt about the death of the victim from the police. An analysis of
evidence of P.W.16 would show that he is an eye-witness to the
commission of rape by Mata Munda and Jiten Munda. His version
relating to commission of such offence by Mata Munda and Jiten Munda
remains uncontroverted in the cross-examination. Further, there is no
suggestion that being enmically disposed towards Mata Munda and Jiten
Munda, he was deposing against them. Furthermore, version of P.W.16
relating to rape stands corroborated by evidence of Doctor (P.W.11), who
conducted the Post Mortem Examination. However, with regard to the
24
presence of Biswanath Gope @ Naru and Tapu @ Mangal Purty @ Suri at
the spot, the same cannot be deduced from the evidence of P.W.16.
Though he (P.W.16) deposed that he knew all of them, however, he has
implicated only Mata Munda and Jiten Munda not Biswanath Gope @
Naru and Tapu @ Mangal Purty @ Suri. Though in his examination-in-
chief he has stated that "I had not seen the other accused persons since
they were concealing their presence in nearby area", however, this is
clearly a contradictory statement as once he has not seen the other
accused persons, how could he deduce that they have concealed
themselves in a nearby area ? In otherwords, it means that despite
knowing all the convicts, he has not implicated Biswanath Gope @ Naru
and Tapu @ Mangal Purty @ Suri.
P.W.17 deposed that he knew the victim as well as the convicts
present in the dock. According to him on the date of occurrence, i.e.,
1.8.2012, the victim had been to tuition at Barbil. As she did not return,
P.W.1 and others searched for her and her naked body was located
inside the Baghiahudi jungle. The symptom showed that she was raped
and murdered. Thereafter her body was taken to Barbil Medical Hospital,
where she was declared dead. He has further stated that in his presence
convict-Jiten Munda admitted his guilt and led the police party to the
place of occurrence and gave recovery of school bag, a ball pen, some
books and khatas which he had concealed inside the bush. His
statement has been marked as Ext.21 as found from the L.C.R. and
Ext.22 is the relevant seizure list. In his cross-examination, he has
stated that he saw Jiten Munda and Mata Munda in police lock up. The
25
statement of Jiten Munda was recorded in the police station and he gave
recovery of school bag, ball pen, books and khatas on 13.8.2012. He
denied a suggestion that Jiten Munda has never given a statement before
police under Section 27 of the Indian Evidence Act.
P.W.18 is the constable, who produced the wearing apparels of the
victim which he had received from the medical after postmortem
examination and the same was seized by the I.O. as per the seizure list
(Ext.24). In his cross-examination, he has stated that the wearing
apparels belonged to the victim.
P.W.19 is the constable, who also says that P.W.29 seized the
wearing apparels of the deceased on 22.8.2012 on production of the
same by P.W.18. In the cross-examination he has stated that the seizure
was made at the police station.
P.W.20 claims to be an eye-witness to the lifting of the victim by
the convicts Mata Munda and Jiten Munda and others. According to
him, he knows the informant, the victim and all the convicts present in
the dock. The occurrence took place on 1.8.2012 on a Rakhipurnima
day. On the date of occurrence at about 9.30 A.M. while he was moving
on the roof of his house he saw Mata Munda, Jiten Munda and two other
boys standing near a Kusum tree near the public road. At that time, he
also saw a girl, aged about 13 years coming from Barbil going towards
village-Belakundi. Finding the girl alone the convicts Mata Munda and
Jiten Munda and two other boys lifted her to nearby Baghiahudi jungle.
After about 15-20 minutes, three other persons came and went inside
Baghiahudi jungle. Further, after about 45 minutes, all the seven
26
persons came out from jungle, all of them were in a hurry, three persons
went towards Barbil and four persons went towards village-Belakundi. At
about evening hour, he got a telephone call from one of his friends, who
enquired about the incident of rape and murder that occurred in the
morning. Thereafter, P.W.20 went to Barbil medical and found a
gathering where he learnt that the victim, who is the daughter of P.W.1
has been raped and murdered. Finding A.S.I.-Rama Chandra Naik, he
narrated the incident first to him and came back. On 13.8.2012, P.W.20
was examined by the police. It may be noted here that A.S.I.- Rama
Chandra Naik was never examined by the proseuction. In his cross-
examination, he admitted that he never disclosed about the incident
either to P.W.1 or other persons present at the hospital. The public road
besides which the convicts Mata Munda and Jiten Munda and others
were standing runs about 300 meters from his house and the Kusum
tree stands just besides the road. The road runs from north to south. He
further admitted that the road is not a busy road but public used to pass
along that road. He denied a suggestion that Baghiahudi jungle is
located at about 1 K.M. away from the public road and that he has not
stated to the police that to the query of Ganesh Apat over telephone, he
narranted the incident to him. An analysis of his evidence would show
the strange conduct/behaviour exhibited by P.W.20. Though he claims to
know the victim and informant and though he claims to have seen her
being lifted by convicts Mata Munda, Jiten Munda and two others to
nearby Baghiahudi jungle, strangely he did not raise any hullah and nor
did he inform others/police immediately. This clearly goes against
27
natural human conduct and throws a cloud on his version of he having
seen the lifting of the deceased. In view of such peculiar behaviour of
P.W.20, his version about lifting of the victim by convicts Jiten Munda
and Mata Munda does not inspire confidence. Though the occurrence of
lifting took place at 9.30 A.M. he only disclosed about the same in the
evening to one Ganesh Apat, who has not been examined in this case.
There also exists no evidence to the effect that P.W.20 like P.W.16 was
threatened with dire consequences for which there was delay in his
disclosing the matter to others. In his cross-examination, he has also
admitted that he has never disclosed the incident to either P.W.1 or other
persons present at the medical. This is again a peculiar behaviour
coming from a person who is working as an agent in Insurance Company
as indicated in his deposition. In any case, except saying that seven
persons were involved, he did not state the names of Biswanath Gope @
Naru and Tapu @ Mangal Purty @ Suri though he claimed to know all
the convicts present in the dock. Such a fact clearly goes in favour of
Biswanath Gope @ Naru and Tapu @ Mangal Purty @ Suri.
P.W.21 in his deposition has stated that he knows all the convicts
except Tapu @ Mangal Purty @ Suri. On the date of occurrence, at about
evening his younger brother, namely, Tusa Munda came to him and told
that while deceased Bindiya Mahakuda was returning from tuition,
convict-Mata Munda accompanied by other convicts, lifted her to
Baghuahudi jungle under a Kusum tree. Sensing that he might divulge
the incident, he threatened him to kill him if he reported the matter to
anybody. In cross-examination, he has stated that he has neither seen
28
the incident nor gone to the spot. He came to know about the incident
from his brother-Tusa Munda.
P.W.22 like P.W.21 has stated that he knew all the convicts except
Tapu @ Mangal Purty @ Suri. According to him, the occurrence took
place on Rakhipurnima day and it was the first day of the month. On the
date of occurrence, the victim did not return from tuition, whereafter, he
accompanied by others searched for her and found her naked body near
a Kusum tree inside Baghiahudi jungle. Thereafter, she was removed to
the hospital where she was declared dead. He also deposed about
convict-Jiten Munda giving recovery of black colour school bag. However,
in his examination-in-chief he has stated that after giving recovery of
school bag, convict-Jiten Munda stated before the police that at the time
of occurrene, he was accompanied by convict-Mata, Kanu, Nauru and his
statement was recorded in his presence. In his cross-examination, he
has stated that by the time he arrived at Baghiahudi jungle, he found the
police, Jiten Munda and many of the co-villagers of village Belakundi and
he cannot say about the topic of discussion held between them. In his
presence, Jiten Munda gave recovery of the school bag after bringing the
same from under the bush. According to him, it is a fact that people used
to take cattle folk for grazing in Baghiahudi jungle. An analysis of his
evidence shows that he corroboartes P.Ws.1,2,4 & 9 with regard to
search and locating dead body. However, with regard to giving recovery of
the school bag, he has stated that after giving recovery convict Jiten
Munda stated before the police about occurrence. So with regard to
recovery of School Bag, his version is of no use.
29
P.W.23 is the Havildar, who on 13.8.2012 produced the nail
clipping, nail scrappings, pubic hair and sample semen kept in sealed
vial and the same was seized by P.W.29 under Ext.16, as found from
LCR. In the cross-examination, he has admitted that though he
produced the above articles before the I.O., inadvertently his signature
was not obtained by the I.O. in the seizure list.
P.W.24 says that he knows the informant and the convicts in the
dock. The deceased was the daughter of P.W.1 and the occurrence
occurred on 1.8.2012 at about 9.30 A.M. at Baghiahudi jungle. Just
prior to the occurrence the deceaed was coming from Barbil towards her
house from tuition. Near Baghiahudi jungle, convict-Mata Munda lifted
her inside the jungle and raped her and the other accused persons also
joined him and raped her. A shepherd boy, who has seen the occurrence,
narrated the incident to him. In his cross-examination, he admitted that
he has not seen the occurrence and when police came to the spot, he
called the shepherd boy to the spot and on enquiry, he narrated the
incident to the police. Since he was present near the police, he has heard
the same. Thus, P.W.24 is a heresay witness and much importance
cannot be given to his version.
P.W.25 is a videographer, who took videography of postmortem
examination. In his deposition, he has stated that he does not know the
victim but has seen her dead body. He videographed the postmortem
examiantion and on 13.8.2012, three accused persons confessed their
guilt, which was also videographed on police requisition. In his cross-
examination, he stated that after doing videography, he submitted the
30
entire film to the I.O. and he does not know about the convicts. It is
important to note here that these DVDs were never produced before the
learned trial court. Seizure of DVDs relating to postmortem examination
and recording of confessional statements have been marked as Exts.14
and 19 respectively, as found from LCR.
P.W.26 is the Havildar who had taken convict-Jiten Munda to
Barbil medical for his medical examination.
P.W.27 is the A.S.I., who stated that on 2.8.2012, P.W.29 seized
the wearing apparels and other articles of the victim after her
postmortem examination and this has been duly reflected in the seizure
list under Ext.24. The above seized articles were produced by P.W.18.
P.W. 28 is the second I.O., who took over the investigation on
25.9.2013 from P.W.29. In his statement he stated that he examined
P.W.1 and other witnesses, re-visited the spot, sent wearing apparels of
the deceased and convicts and the biological sample of the deceased and
convicts along with one 'Dauli', the weapon of offence to S.F.S.L.,
Rasulgarh, Bhubaneswar for chemical examiantion. On 5.12.2012, he
filed charge sheet against the convicts showing three others as
absconders. In his cross-examination, he has stated that even if he re-
examined the witnesses, still then, he did not record their statements
separately as they did not add more to the earlier statements. He denied
a suggestion that without any evidence against the convicts he charge
sheeted them at the instance of the informant.
P.W. 29 is the main I.O., who conducted investigation in this case.
As per his deposition, he was working as S.I. of police at Barbil Police
31
Station on 1.8.2012. On that date, P.W.1 presented a written report
before him. Accordingly, he registered Barbil P.S. Case No.128 of 2012
and took up investigation. He further stated that the written report was
treated as F.I.R. under Ext.1. After registration of the case, he drew up a
formal F.I.R. which has been marked as Ext.1/3. During course of
investigation, he examined P.W.1 at the Police Station. Later, he held
inquest over the dead body and prepared the inquest report under Ext.2.
He dispatched the dead body to the medical officer requesting to conduct
postmortem examination with a request to record the postmortem report
by way of videography. Thereafter, video casettee was seized from the
videographer. Such seizure list is Ext.14. Next date, he visited the spot
with scientific team and prepared spot map. As per the request of
medical officer, Barbil, he sent biological materials of the deceased to
District Headquarters Hospital, Keonjhar and also seized the wearing
apparels of the deceased under seizure list. On 12.8.2012, he rescued
convict-Mata Munda. On 13.8.2012, upon examination, he disclosed
about the involvement of other convicts. Then, he formally arrested
convict-Mata Munda. While in police custody, Mata Munda stated that
he along with others killed the deceased after raping her and kept
concealed the 'Dauli' with which he killed Bindiya Mahakuda inside the
jungle. This statement has been marked as Ext. 20. Thereafter, Mata
Munda led him, witnesses and others to the spot and gave recovery of
that 'Dauli', which was seized by him vide seizure list under Ext.8. Then,
he seized the wearing apparels of Mata Munda, examined the seizure
witnesses and sent Mata Munda to the medical seeking opinion of the
32
doctor as to whether he has committed the offence of rape or not. On
13.8.2012, he also got information that convict-Jiten Munda has
concealed himself at Baghuahudi jungle. Accordingly, he arrested Jiten
Munda on 13.8.2012 at 10.30 P.M. Then, he recorded his statement and
videographed the same. In his statement, he provided information that
he has kept concealed the school bag of the victim inside Baghiahudi
jungle. Then, he recorded his statement under Section 27 of the Indian
Evidence Act in presence of witnesses which has been marked as Ext.21.
Thereafter, Jiten Munda led him and the police party and others to the
spot of concealement and gave recovery of school bag of deceased which
was seized from the sopt under the seizure list, Ext.22. Then, he sent
Jiten Munda for his medical examination. On 13.8.2012, he arrested
Biswanath Gope @ Naru and seized his wearing apparels and sent him
for medical examination and also recorded his confessional statement
and videographed it and seized the CD vide seizure list-Ext.19. On
13.8.2012, he forwarded Mata Munda, Jiten Munda, Biswanath Gope @
Naru to the court. On 20.8.2012, he produced postmortem examination
report along with seized 'Dauli' before the medical officer and sought for
her opinion as to whether the deceased could have been killed by that
'Dauli' and she answered in the affirmative. On 23.8.2012, he sent the
seized articles to S.F.S.L., Rasulgarh, Bhubaneswar for chemical
examination through court. On 6.9.2012, he arrested convict- Tapu @
Mangal Purty @ Suri from his house and seized his wearing apparels and
sent him for medical examination. Later on, P.W.28 took charge of
investigation. In his cross-examination, he denied the suggestion that he
33
has not investigated the case properly and without any investigation, he
arrested the convicts. It is important to note that the 'Dauli', 'School
Bag', etc. were never produced before the learned trial court during trial.
11. In the background of discussion made above, now let us examine
the various contentions raised by the learned Amici Curiae and Mr.
J.Katikia, learned Addl. Government Advocate.
12. With regard to first contention of learned Amici Curiae, Mr. Panda
and Mr. Dhal, pertaining to evidence of P.W.20, we agree with their
contentions that in the background of peculiar conduct exhibited by
P.W.20, his evidence does not inspire confience. Despite claiming to
know the victim and her father, he neither raised a hullah nor
immediately informed the police while he saw lifting of the victim. He
remained a mute spectator though he knew the victim. He also did not
disclose such fact to either P.W.1 or others at Medical. Such peculiar
conduct raises serious doubt about his version of he having seen the
lifting of victim. According to us, the learned Additional Sessions Judge,
should not have relied upon such a witness, who appears to be a got up
witness.
13. With regard to delayed examination of P.W.16 by the police on
8.8.2012, in the facts and circumstances, we do not think any thing
turns on that. This is because P.W.16 in his evidence has made it clear
that he was threatened with dire consequences by covict - Mata Munda if
he disclosed the fact to anybody. Moreover, as rightly contended by Mr.
Katikia, learned Addl. Government Advocate relying on Banti @ Guddu
(Supra), this point cannot be raised now as the defence never asked the
34
investigating officer categorically as to why there was delay in
examination of witness. In this context, the decision relied upon by
learned Amici Curiae of the in Mr. Brahamananda Nanda (supra) is
factually distinguishable as in that case, unlike the present case, there
was no question of fear for not disclosing the matter immediately, as the
acquitted respondent was not known to be a gang star or a confirmed
criminal about whom the people were afraid. Further, the police had
already arrived at the spot which was just opposite to the house of
witness and moreover, A.S.I-Madan Das was the nephew of so-called eye-
witness (P.W.6). In the present case, P.W.16 as appears from his
deposition is a young labourer (cattle grazer), who was threatned to be
killed by convict-Mata Munda while he saw commission of rape. With
regard to the submission relating to non-corroboration of version of
P.W.16 by P.W.21, our response would be nothing turns on the same as
P.W.21 is not an eye-witness, but is only a hearsay witness.
14. With regard to the submission of the learned Amici Curiae that
there exists no evidence worth the name with regard to convicts-
Biswanath Gope @ Naru and Tapu @ Mangal Purty @ Suri, we are
inclined to accept the same as P.W.16 while deposing about the presence
of convicts-Mata Munda and Jiten Munda has not uttered the names of
these convicts despite claiming to know them.
With regard to argument relating to non-existence of pre-planning,
we have no hesitation to say that there exists no evidence with regard to
the same vis-à-vis Biswanath Gope @ Naru and Tapu @ Mangal Purty @
Suri.
35
As regards to non-examination of Rebati Behera, according to us,
nothing much turns on that because said Rebati Behera about whom
P.Ws.2,3,4 and 13 have deposed, has not said anywhere that she had
seen the occurrence either of rape or murder. As per P.Ws.2,3,4 and 13,
Rebati Behera only told them that she had seen the victim walking along
side the Baghiahudi jungle.
The submission of learned Amici Curiae relating to P.W.11 not
stating about commission of gang rape would in no way help convicts-
Mata Munda and Jiten Munda because as per the Explanation No.1 to
sub-section (2) of Section 376 IPC, as it stood at the time of occurrence,
where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention each of the person shall be
deemed to have committed gang rape. Even otherwise, here the evidence
of P.W.16 clearly shows that both convicts-Mata Munda and Jiten
Munda were seen by P.W.16 while committing rape.
15. With regard to submission of learned Amici Curiae that trial court
has travelled beyond the frontiers of law by putting reliance on entire
statements made by convicts-Mata Munda & Jiten Munda under Section
27 of the Evidence Act, 1872 involving the convicts, we accept the same.
In this connection, we would like to quote the following passage from the
case of Pulukuri Kottaya and others (supra) :
"Section 27, which is not artistically worded, provides an
exception to the prohibition imposed by the preceding section, and
enables certain statements made by a person in police custody to
be proved. The condition necessary to bring the section into
operation is that discovery of a fact in consequence of information
received from a person accused of any offence in the custody of a
Police officer must be deposed to, and thereupon so much of the
36
information as relates distinctly to the fact thereby discovered may
be proved. The section seems to be based on the view that if a fact
is actually discovered in consequence of information given, some
guarantee is afforded thereby that the information was true, and
accordingly can be safely allowed to be given in evidence; but
clearly the extent of the information admissible must depend on the
exact nature of the fact discovered to which such information is
required to relate. Normally the section is brought into operation
when a person in police custody produces from some place of
concealment some object, such as a dead body, a weapon, or
ornaments, said to be connected with the crime of which the
informant is accused. Mr. Megaw, for the Crown, has argued that in
such a case the "fact discovered" is the physical object produced,
and that any information which relates distinctly to that object can
be proved. Upon this view information given by a person that the
body produced is that of a person murdered by him, that the
weapon produced is the one used by him in the commission of a
murder, or that the ornaments produced were stolen in a dacoity
would all be admissible. If this be the effect of section 27, little
substance would remain in the ban imposed by the two preceding
sections on confessions made to the police, or by persons in police
custody. That ban was presumably inspired by the fear of the
Legislature that a person under police influence might be induced
to confess by the exercise of undue pressure. But if all that is
required to lift the ban be the inclusion in the confession of
information relating to an object subsequently produced, it seems
reasonable to suppose that the persuasive powers of the police will
prove equal to the occasion, and that in practice the ban will lose
its effect. On normal principles of construction their Lordships
think that the proviso to S.26, added by S.27, should not be held to
nullify the substance of the section. In their Lordships' view it is
fallacious to treat the "fact discovered" within the section as
equivalent to the object produced; the fact discovered embraces the
place from which the object is produced and the knowledge of the
accused as to this, and the information given must relate distinctly
to this fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting in
which it is discovered. Information supplied by a person in custody
that " I will produce a knife concealed in the roof of my house" does
not lead to the discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that a knife is
concealed in the house of the informant to his knowledge, and if the
knife is proved to have been used in the commission of the offence,
the fact discovered is very relevant. But if to the statement the
words be added "with which I stabbed A" these words are
inadmissible since they do not relate to the discovery of the knife in
the house of the informant."
37
Further in Anter Sing v. Stare of Rajasthan reported in (2004) 10
SCC 657, the Supreme Court has summed up various requirements of
Section 27 as follows:
"(1) The fact of which evidence is sought to be given must be relevant to the
issue. It must be borne in mind that the provision has nothing to do with
question of relevancy. The relevancy of the fact discovered must be
established according to the prescriptions relating to relevancy of other
evidence connecting it with the crime in order to make the fact discovered
admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information
received from the accused and not by accused's own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an
accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or
strictly to the fact discovered can be proved. The rest is inadmissible."
Keeping in mind the above, it is clear that under Section 27 of the
Indian Evidence Act, a court can rely upon that much of information
which has led to discovery of 'Dauli' and 'School Bag', etc. and not all the
confessional statements made before the police under Exts. 20 and 21.
Thus, vis-à-vis Mata Munda the admissible information is "DAULI KU
MU NEI xxx xxx xxx EKA SIMILI GACHHA TALE THIBA LATI BHITARE
LUCHEI DEI MORA GHARAKU PALEI ASILI XXX XXX xxx APANAMANE
MO SAHITA GALE, MU UKTA JAGAKU NEIJIBI O LUCHEI RAKHITHIBA
DAULIKU BAHARA KARIDEBI" (Translated by this Court- I took the
"Dauli" and hid the same inside a bush under a simili tree and came
back to my house xxx xxx xxx If you accompany me, I will take you to
38
that place and bring out the hidden "Dauli"). Similarly, with regard to
convict-Jiten Munda, only the following statement is admissible. "xxx MU
BINDIYAR KALA RANGARA SCHOOL BAG KU xxx xxx xxx EKA LATI
BHITARE LUCHAI DELI XXX APANAMANE MO SAHITA GALE UKTA
JAGAKU NEI JIBI O LUCHEI THIBA SCHOOL BAG KU BAHARA
KARIDEBI XXX"- (Translated by this Court- I hid the school bag of
Bindiya inside a bush xxx. If you accompany me, I will take you to that
place and will bring out the hidden school bag)."
Except the above quoted informations, nothing more from the
statements involving the present convicts should have been relied upon
by the learned trial court while making its own analysis. It appears the
learned trial court has failed to take into consideration the well settled
principle vis-à-vis Section 27 of the Evidence Act, 1872. Moreover, the
'Dauli' and 'School Bag' were not produced before the learned trial court.
Thus, these discoveries were never proved. Had these been produced,
these could have been confronted to the seizure witnesses and the school
bag could have been identified to be the bag of the deceased by his
relatives like P.Ws.1,2, 3 and 4. In such background, leading to discovery
has lost all its meaning in the present case.
16. To sum up, analysis of oral and documentary evidence available on
record shows that with regard to commission of offence of rape by
convicts-Mata Munda and Jiten Munda, there exists enough evidence.
P.W.16 who is an eye-witness has clearly stated to have seen commission
of such offence by both convicts-Jiten Munda and Mata Munda. This
part of substantial evidence from P.W.16 finds ample support by the
39
evidence of P.W.11 who conducted postmortem examination and in
whose opinion, the genital injury strongly suggested a sexual assault.
Further, from the side of the defence, there is no suggestion of existence
of enmity between the convicts and P.W.16 to doubt his version.
However, while analyzing the evidence of P.W.16, the evidence is highly
deficient to rope in other two convicts, namely, Biswanath Gope @ Naru,
Tapu @ Mangal Purty @ Suri vis-à-vis the commission of any offence,
particularly when P.W.16 despite deposing that he knew all the convicts
did not utter the names of convicts-Biswanath Gope and Tapu @ Mangal
Purty @ Suri. Though P.W. 16 has stated that he had not seen the other
convicts since they were concealing their presence in nearby area, there
is nothing in his evidence to show that he had seen the other convicts in
the area along with Mata Munda and Jiten Munda prior to/at the time of
occurrence of rape. Thus, while Mata Munda and Jiten Munda can be
held guilty for commission of offence under Section 376(2)(g), I.P.C., the
two other convicts cannot be held so guilty.
With regard to the charge of commission of offence under Section
302/34, I.P.C. and under Section 201/34, I.P.C., again the evidence is
deficient in respect of Biswanath Gope @ Naru and Tapu @ Mangal Purty
@ Suri as their presence at the spot has not been indicated by P.W.16
though he knew all of them. Though as indicated earlier, the evidence of
P.W.20 does not inspire much confidence, he has also not uttered the
names of these two persons, namely, Biswanath Gope @ Naru and Tapu
@ Mangal Purty @ Suri though he claimed to know them. Thus, these
two convicts cannot be held guilty for committing any offence. But with
40
regard to convicts-Jiten Munda and Mata Munda, the following
circumstances exist showing their complicity in committing offences
under Sections 302/34 IPC, 201/34 IPC.
(a) They were last seen by P.W.16 while committing rape and
convict-Mata Munda threatened to kill him if he disclosed the fact to
anybody. As stated by P.W.16, the occurrence took place at about 10.00
A.M. on 1.8.2012 (Rakhi Purnima day). When the victim did not return to
her house as stated by P.Ws. 1,2,4,9,10,13 & 22 search was undertaken
and as per the evidence of P.Ws.2 and 4, the dead body was located
inside the jungle in a naked condition with various injuries on her body
and private parts at 2.00 P.M. The Doctor (P.W.11) also opined that the
cause of death is asphyxia due to mechanial pressure on chest and neck
and time since death was within 6-12 hours at the time of examination.
The doctor, conducted postmortem examination at 9.00 P.M. on
1.8.2012. This means the doctor gives time of occurrence to be from 9.00
A.M. to 9.00 P.M. It may be noted here that P.Ws.1,2 and 4 have stated
that usual time of return of the victim after completing her tuition to be
9.00 A.M. P.W.5, the tuition teacher has also made it clear in her
deposition that the victim left her place after taking tuition at about 9.00
A.M. P.W.16 in his evidence has made it clear that the occurrence took
place at around 10.00 A.M. Thus, it is reasonable to deduce from all
these that the death of the victim took place sometime around 10.00
A.M.
(b) During course of postmortem examination, P.W.11 found the
following external and internal injuries.
41
"EXTERNAL INJURY
(i) Bruising of size 15cm x 8cm on neck with pressure abrasion.
(ii) Four paraial bruises on upper chest extending from anterior
axillary fold of one side to other.
(iii) one pressure abrasion on back and three small lacerated
injury on back of left arm.
INTERNAL INJURY
(i) On dis-section of neck and chest there was bleeding into neck
muscles with fracture of thyroid catridege.
(ii) Bleeding into the intercosttal muscles in upper chest.
(iii) Heart is intact and contains fluid blood.
(iv) Both lungs were congested so also lever, spleen and kidneys.
(v) There was rupture of the hymen posteriorly which extend
backward and resulted in a second degree perineal tear of size 2.5
cm long.
(vi) Uterous is small in size, presence of blood clot in her
genetalia and dried stains of blood on her vulva and inner thigh."
P.W.11 has also made it clear that the genital injury strongly
suggests a sexual assault and nature of death is homicidal.
(c) Further, convicts-Jiten Munda and Mata Munda have offered no
explanation as to how the death of the victim occurred and in view of
their blank denial of the entire incident including that of rape under
Section 313, Cr.P.C. and the fact that the dead body was found inside
the jungle, all these circumstances unerringly point out to the fact that it
was convicts-Jiten Munda and Mata Munda after committing gang rape
further commited the murder in order to hide their crime. For all these, it
can be said that the learned trial court has committed no illegality in
holding convicts-Jiten Munda and Mata Munda guilty under Sections
376 (2)(g)/302/201/34, I.P.C.
17. Now, the residual questions that remains to be decided is whether
the death penalty is appropriate punishment in this case ?
18. Mr. J. Katikia, learned Addl. Government Advocate submitted that
the present case is clearly a case which comes under the category of
42
rarest of rare case as per the decisions of the Supreme Court in Bachan
Singh (supra) and Machhi Singh and others (supra). Taking into
consideration the gravity of offence and age of the deceased, he submits
that this is a clear case of rape and cold blooded murder of an innocent
and helpless child. The manner of commission of crime clearly reveals
the depravity of the mind of the convicts. He further submitted that the
reasons given by the learned trial court while sentencing convicts-Mata
Munda and Jiten Munda clearly makes out the present case as one of
the rarest of rare category and accordingly submited no interference is
called for in the matter. In support of his submissions, he relied on
decisions of the Supreme Court in Laxman Naik (supra), Vasanta
Sampat Dupare (supra) and Purusottam Dashrath Borate (supra).
However, at the same time, Mr. Katikia learned Addl. Government
Advocate submitted that in case this Court thinks an alternative to
capital punishment, the same should be either an imprisonment for life
with a jail term of 25-35 years without remission or till the end of life of
the convicts. In this context, he relied on the decisions of this Court in
State of Orissa v. Ardhu Chendreya as reported in (2010) 47 OCR
953 and decisions of Supreme Court in Rajkumar (supra) and Selvam
(supra) and lastly on Swamy Shraddhananda (supra).
19. On the other hand, both the learned Amici Curiae submitted that
at the time of commission of offence, both convicts Mata Munda and
Jiten Munda were young tribals of 24 and 22 years of age respectively.
With regard to murder, they submitted that there exists no direct
evidence against them. Thus, the conclusion regarding commission of
43
murder is based on circumstantial evidence. Therefore, the extreme
penalty of capital punishment is not called for. Secondly, in consonance
with the decision of the Supreme Court in Bachan Singh (supra),
prosecution has nowhere led any evidence to show the probability that
the convicts-Mata Munda and Jiten Munda cannot be reformed and
rehabilitated and the probability that they would commit the criminal
acts again so as to constitute a continuing threat to the society. Thus,
according to them the learned court below has not taken into account all
the mitigating circumstances as required under law. Thirdly, they also
pointed out that there exists no evidence with regard to criminal
antecedents. Lastly, they submitted that this is also not a case involving
extreme brutality or depravity. Thus, according to them circumstances
are not such which leaves open no other alternative. In this context, they
relied on the decisions of the Supreme Court in Shankar Kisanrao
Khade (supra) and Nisar Ramzan Sayyed (supra).
20. Perused the judgments cited above by both the parties.
21. In the case of Laxman Naik (supra), rape and murder of a 7 years
old girl child was committed by his own uncle. Circumstances of last
seen together, intentional false statement of the accused as to
whereabouts of the decesaed, evidence relating to murder of the deceased
and discovery and seizure of incriminating articles pointed out only to
the calculated, cold blooded and brutal murder of the girl by his own
uncle after committing rape on her. Under such circumstances, the
Supreme Court upheld the death sentence which was earlier confirmed
by this Court. Thus, it is a case where a person in a position of trust
44
committed the crime unlike the present case where the convicts never
held any position of trust/guardian vis-à-vis the deceased. Further, here
as discussed earlier here discovery of incriminating materials like 'Dauli'
and bag were never produced and proved. Further, here, there is no
evidence of absconding for a long period of 14 months. Thus the Laxman
Naik's case (supra) is factually distinguishable.
22. With regard to the case in Vasanta Sampat Dupare (supra), in
our view, the same is also factually distinguishable. In that case, the
convict was a history sheeter, who by taking advantage of his
acquaintance with the girl (victim), lured the victim, a four years old girl
after giving her a chocolate and took her in a cycle, raped her and
crushed her by stone weighing 7.5 kg/8.5 kg. In fact children used to
call the appellant uncle. Thus, the Supreme Court held that factual
matrix clearly reflected pre-meditation and rapacious desire. The age of
the accused was also 47 years at the time of commission of crime. Under
such circumstances, the Supreme Court held that the factual scenario
there revealed not only betrayal of individual trust but also destruction
and devastation of social trust. Further, in that case, the blood stains
found on convict's clothes tallied with the blood group of the victim. The
same is not the case here. Furthermore, unlike the present case, there
the provision of Section 27 of the Evidence Act, 1872 was clearly
attracted. Morever being a history sheeter, there was no chance of the
appellant there being reformed and rehabilitated. Thus, the said case is
factually distinguishable.
45
23. With regard to Purusottam Dashrath Borate and another
(supra), that was again a case of convicts holding position of trust and
betraying that position. There, it was a case of gang rape and murder of a
lady associate working in a BPO company while she was going to work in
the night shift in the Company-hired private cab service. There the victim
was raped and murdered by the cab driver and the security guard of the
company-hired cab service. Therefore, it was clear betrayal of trust/gross
abuse of position of trust. Further in that case unlike the present case,
the provision of Section 27 of the Evidence Act, 1872 was clearly
attracted. In such background, particularly keeping in mind the present
day requirement of woman to work in night shift, the Supreme Court
upheld the death sentence for the convicts/appellants.
24. In our considered view, in the facts and circumstances of the case,
it would be appropriate to impose the alternative punishment of
imprisonment for life following the case of Selvam (supra), Raj Kumar
(supra) and Ardhu Chendreya (supra) instead of death sentence. In
doing so, we have taken into account following aggravating and
mitigating circumstances. Here, the aggravating circumstances are that
convicts-Mata Munda and Jiten Munda physically lifted the deceased-
victim aged about 13 years while she was returning home from the house
of the tuition teacher and thereafter both committed rape on her as has
been stated by eye-witness-P.W.16. Subsequently, they committed
murder with an intention for causing disappearance of evidence relating
to rape. However, at the same time according to us, the following are the
mitigating circumstances in favour of convicts-Mata Munda and Jiten
46
Munda. It may be noted here that both of them are tribal persons
belonging to the class of labourers without criminal antecedents and as
rightly contended by both the learned Amici Curiae that murder has not
been proved by direct evidence. Further, the prosecution has not proved
the probability that the convicts cannot be reformed and rehabilitated
and the probability that they would continue to commit criminal acts
and thereby would pose threats to the society. However, we are not
inclined to accept the submissions of learned Amici Curiae with regard to
the scenario depicted by them in the event of confession by the
absconding accused after their apprehension, as these things are in the
realm of conjectures and surmises. But in totality, according to us, the
mitigating circumstances clearly outweigh the aggravating
circumstances. Further recently Supreme Court after noting the
recommednation of the Law Commission of India for abolition of death
penalty for all the crimes except in the case of terrorism related offences
and waging war, in Nisar Ramzan Sayeed case (supra) converted the
death penalty to life imprisonment. There the prosecution has proved the
convict causing death of pegnant wife and children. Further, in the case
of Sankar Kisan Khade (supra), there was brutal murder of a minor
girl with intellectual disability after subjecting her to a series of act of
rape by a middle ager. There the Supreme Court also converted the death
sentence to that of imprisonment for life. Thus, taking a holistic view of
the case, we are not pursuaded to accept that the present case can be
called as a rarest of rare case warranting death penalty. We are not
47
satisfied that circumstances of the crime are such that there cannot be
any other alternative than to impose capital punishment.
25. In the present case, learned trial court while imposing death
sentence, has completely failed to consider the mitigating circumstances
like - absence of evidence relating to probability of convicts committing
crime in future so as to constitute continuing threats to the society and
absence of evidence that they can not be reformed or rehabilitated. In
essence though the learned trial court has in great details referred to
aggravating circumstanes pointed out in Bachan Singh case (supra), it
has ignored the mitigating circumstances as indicataed in Para-206 of
Bachan Singh case.
26. To conclude in the background of discussion made earlier,
convicts-Biswanath Gope @ Naru and Tapu @ Mangal Purty @ Suri are
acquitted of all charges under Sections 376(2)(g)/302/201/34, I.P.C. and
they are directed to be set at liberty forthwith, if they are not wanted in
connection with any other case. With regard to Mata Munda and Jiten
Munda while we uphold their conviction under Sections 376 (2)
(g)/302/201/34, I.P.C., we set aside the death sentence awarded to them
and instead direct them to undergo life impriosnment with the condition
of minimum of 35 years in jail without remission. For the offence under
Sections 201/34, IPC, we uphold the sentence of 5 years R.I. awarded by
the learned trial court which is to run concurrently. The convicts are also
sentenced to pay fine of Rs.3,000/- (Rupees three thousand) each on
each count in the offences under Sections 376(2)(g)/302/34, I.P.C., in
48
default to undergo a further R.I. for a period of 3 months each on each
count.
27. Accordingly, the reference made by the learned trial court is
discharged and JCRLA filed by the appellants is partly allowed. Before
concluding, we would be failing in our duty if we do not record our
appreciation about the able asistance rendered to this Court by learned
Amici Curiae, namely, Mr. Debasis Panda and Mr. D.P. Dhal. In fact their
assitance has been of great help in disposing the present DSREF and
JCRLA.
The DSREF and JCRLA are accordingly disposed of.
.................................
Biswajit Mohanty, J.
I. Mahanty, J.I agree.
................................. I. Mahanty, J.
Orissa High Court, Cuttack The 23rd June, 2017/bns