Judgment:
HIGH COURT OF ORISSA: CUTTACK JAIL CRIMINAL APPEAL No.108 of 2006 From an order dated 19.9.2006 passed by Shri P.K.Nayak, Addl. Sessions Judge (F.T.), Sambalpur in S. T. Case No.35/19 of 2005. ----------Janmajaya Bhoi … … - Respondent Versus – State of Orissa For Appellant For Appellant … Respondent -- Mr.Arun Kumar Das-I Mr.B.P.Pradhan Addl. Govt. Advocate -------------PRESENT: THE HONOURABLE SHRI JUSTICE L. MOHAPATRA AND THE HONOURABLE SHRI JUSTICE C.R.DASH Date of Hearing 19.07.2012 & Date of Judgment :
16. 8.2012 L. MOHAPATRA, J.This appeal arises out of the judgment and order of the learned Additional Sessions Judge (F.T.), Sambalpur in S. T. Case No.35/19 of 2005 disposed of on 19.9.2006. The appellant has been convicted for commission of offence under Section 376 (2) (f) of the Indian Penal Code (in short ‘IPC’) as well as under Section 302 of IPC. For his conviction under Section 302 of IPC, he has been sentenced to undergo R.I. for life and pay a fine of Rs.5,000/-in default, to undergo 2 further imprisonment for one year and for his conviction under Section 376(2)(f), he has been sentenced to imprisonment for ten years and pay a fine of Rs.1,000/- in default, to further undergo imprisonment for six months. However, both the sentences have been directed to run concurrently.
2. Case of the petitioner is that on 29.6.2004, the deceased, Sasmita Bhoi, a minot girl, along with other children were playing near the village tube-well at about 5.30 P.M. The deceased did not return home in the evening for which the family members of the deceased started searching for her in the village. Many villagers joined them. In spite of thorough search, the deceased was not found. When the family members of the deceased and the other villagers were searching for the deceased, the appellant came to the village at about 8 p.m. and enquired about the matter and also joined the villagers in search of the deceased. He also dissuaded the villagers not to search for the deceased stating that the deceased might have been taken by a witch and he also advised the villagers not to report about missing of the deceased in the police station. Search also continued but the deceased was not found and only on 1.7.2004 at about 11.00 a.m. the dead body of the deceased was found lying under a Khajuri tree standing in the land of one Saranapanjara Bhoi. Her undergarment and chapel were lying at a distance and a white napkin was wrapped in her neck. P.W.1 thereafter 3 lodged the F.I.R. at 12.30 p.m. on the basis of which investigation was taken up. On completion of investigation, charge sheet was submitted for both the offences and the appellant faced trial for commission of the said offence.
3. In course of trial, the prosecution examined as many as twenty witnesses, but none was examined on behalf of the defence. The plea of defence is complete denial of the prosecution allegation and the appellant also complained of false implication. Out of the twenty witnesses examined on behalf of the prosecution, P.W.1 is the Uncle of the deceased and is the informant in this case. P.Ws.1, 2, 4, 5, 6, 7, 9, 11 and 12 are the witnesses, who stated about searching for the deceased in the village in the evening on the date of occurrence and they have also stated about the conduct of the appellant in dissuading them from going to the police station. P.W.2 further stated about the disclosure statement made by the appellant while in police custody and recovery of the stone at the instance of the appellant. P.W.3 turned hostile. P.Ws.8 and 13 are the two witnesses to seizure and P.W.14 is a Constable, who is a witness to seizure, under Exts.17, 18 and 19. P.W.9 had seen the appellant standing near the place where the deceased and her friends were playing. P.W.10 is the beetle shop owner from whom the appellant had purchased pudia and two chocolates in the evening. P.W.15 is a Cameraman, who had made 4 vediography of the disclosure statement made by the appellant. P.W.16 is the Doctor, who conducted the postmortem examination. P.W.17 is the Police Officer, who initially made a Station Diary Entry with regard to missing of the deceased. P.W.19 is the another the Doctor, who examined the appellant on police requisition and P.Ws.18 and 20 are the two Investigating Officers.
4. The trial court in absence of direct evidence found the appellant guilty of the charges on the following circumstantial evidence:(i) The appellant had been last seen with the deceased in the evening on the date on which the occurrence took place. (ii) The appellant mislead the villagers at the time of search and also dissuaded them not to inform the police. (iii) The appellant while in police custody not only gave recovery of the stone by means of which the deceased also assaulted but also led the police to both the places where the deceased had been raped and murdered. Conduct of the appellant in purchasing two chocolates from the shop of P.W.10 in the evening was also taken as a circumstance against the appellant. The trial court also found another circumstance against the appellant with reference to the chemical examination report and it was specifically held by the trial court that the blood stain earth collected by the investigating Officer from both the places contained human blood 5 and no explanation has been offered by the appellant. On the basis of the above circumstantial evidence, the appellant was found guilty of both the charges.
5. Learned counsel appearing for the appellant referring to the evidence of P.W.16, the doctor, who conducted the postmortem examination, submitted that evidence of P.W.16 proves that the deceased had been subjected to rape but the same cannot be attributed to the appellant as P.W.16 also stated that normally there will be injury on the penis, if there is forcible intercourse with a minot girl. P.W.19, the Doctor, who examined the appellant on police requisition, did not find any injury on the private parts of the appellant. Therefore, the allegation of rape made by the prosecution is not established through evidence. So far as allegation of murder is concerned, according to the learned counsel for the appellant, the only evidence is the disclosure statement leading to discovery of a stone by means of which the deceased is alleged to have been killed. Even if any such circumstance has been proved, the trial court in absence of any other circumstantial evidence completing a chain of events, could not have been convicted the appellant on the basis of only one circumstance.
6. Learned counsel for the State, on the other hand, submitted that the circumstances relied upon by the trial court not only complete a chain of circumstances, but also point at the guilt of the appellant 6 without leaving any room for entertaining a doubt. Therefore, there is no reason for this Court to interfere with the finding of the trial court.
7. Undisputedly there is no eyewitness to the occurrence and the prosecution relies on circumstantial evidence. Much reliance was placed by the prosecution on the evidence of P.W.9, who stated to have seen the appellant with the deceased. P.W.9 deposed that on 29.6.2004 at about 5.30 p.m. to 6.00 p.m. when he came out from his house he saw the deceased playing near the tube well of the village along with other children. The appellant was standing on a verandah near the children at that time. This being the only evidence of P.W.9, it cannot be said that the deceased was seen in the company of the appellant alone previous to the alleged incident. Therefore, such evidence of P.W.9 cannot be used against the appellant to bring in the theory of last seen.
8. P.Ws.1, 2, 4, 5, 6, 7, 9, 11 and 12 are the witnesses, who participated in search of the deceased and also stated about the conduct of the appellant in course of such search. Since evidence of these witnesses in this regard is more or less same, we refer to the evidence of P.W.1 alone. P.W.1 stated that on 29th June, 2004 in the evening after returning from land, they did not find the deceased in the house. They searched for the deceased in the village and when they could not trace her out, other villagers joined them in searching for the deceased. The appellant was not available in the village. At about 8.30 p.m. the 7 appellant came to the village and enquired about the incident. The appellant said that the deceased was taken away by a witch and, therefore there was no necessity to search for her. When they wanted to report about the incident before the police, the appellant advised them not to report. This statement is not only made by P.W.1 but also by rest of the witnesses as stated above. From the evidence of these witnesses, it is clear that when the family members and the villagers started searching for the deceased, the appellant was not in the village and he joined them at 8.30 P.M. It also appears that the appellant told these witnesses that the deceased might have taken by a witch and there is no necessity to report the incident to the police station.
9. So far as absence of the appellant from the village is concerned, from the evidence of P.W.6, it appears that at about 8.30 p.m. when the appellant came to the village and was questioned as to where he had gone, he stated to have gone to Mangalabar Hat (Tuesday Hat). Therefore, the prosecution itself has explained the absence of the appellant in the village at the time of search. So far as other conduct of the appellant in making a statement that the deceased might have been taken away by a witch is not a statement which can be taken as a circumstance available against the appellant. Therefore, the evidence of all the above witnesses do not prove any circumstance which can be used against the appellant”
10. So far as disclosure statement is concerned, only witness examined on behalf of the prosecution is P.W.2. This witness stated in court that on 3rd July 2004 the Police Personnel of Ainthapali Police Station called him and another to the police station and accordingly they went to the police station and saw the appellant standing before the Officer-In-Charge. Being asked by the police, the appellant confessed his guilty stating that on 29th June at 6.30 P.M. to 7.00 p.m. he gave two chocolates to the deceased near the village tube well and by gagging her mouth with cloth, he lifted the deceased to the paddy field of one Biswanath Guru and under the ridge of the paddy field, he committed rape on the deceased by removing her undergarment. The appellant also confessed that after committing rape, his conscience bit him and he felt that if the deceased is left alive she would inform about the incident before the villagers and, therefore, he killed the deceased by tying her neck by means of while gamuchha. Thereafter he lifted the dead body of the deceased to a place under Palasa tree (Palsa) and struck her head by means of a stone. Thereafter, he again took the dead body of the deceased and kept under a Khajuri tree where from the villagers found the dead body. P.W.2 further stated that the appellant making such statement while in custody led them to the tube well and narrated the incident again. Thereafter he led them to the place of rape where from the police seized blood stains earth and sample earth. Thereafter the appellant led them to the place where he had assaulted the deceased by 9 means of a stone and the police seized blood stains earth and sample earth from that place also. Thereafter the appellant led them to the bank of Harada Jore and gave recovery of the stone by means which he had assaulted the deceased. Lastly the appellant also led them to his own house and brought out a lungi and towel which he had worn at the time of commission of offence. Nothing has been brought out in the crossexamination of this witness to discard his testimony. Therefore from the evidence of P.W.2, the prosecution has been able to prove that the appellant made a disclosure statement while in custody in presence of witnesses, the manner in which he committed rape on the deceased and ultimately killed her. He also gave recovery of the stone by means of which it is alleged `that he had killed the deceased. P.W.16, the doctor, who conducted the postmortem examination, found seven injuries and also ligature mark around the neck. He was of the view that injuries were ante mortem in nature and the head injuries might have been inflicted by hard and blunt object like stone. Injuries on mouth and lip might have been caused because of presser exacted on lips. The genital injuries were consistent with forcible penetration with hard object like erectile penis. The ligature mark is ante mortem in nature and consistent with strangulation. Death is due to asphyxia as a result of strangulation which is homicidal in nature. He further opined that the injuries in scalp and fracture of the bone could be possible by the stone seized at the instance of the appellant”
11. Learned counsel appearing for the appellant drew attention of the Court to the evidence of this witness as deposed to paragraph-14 and submitted that as per the version of P.W.16, there will be injury on the penis of an adult if there is forcible intercourse with a minot girl and P.W.19, the doctor, who examined the appellant, did not find any such injury. We are unable to accept such contention of the learned counsel appearing for the appellant as the incident took place on 29th June, 2004 and the appellant was examined by P.W.19 on 5th July, 2004 at least seven days after the incident. The appellant was a married man and, therefore, non-existence of injuries on the private parts seven days after the incident can not lead to a conclusion that she was not raped. On the other hand, the evidence of P.W.16 clearly proves that the deceased had been subjected to rape and murder. P.W.16 also proves that though the death was because of strangulation, there were injuries on the face and head which could be caused by gagging and assault by means of a hard substance like stone. Learned counsel for the appellant in relation to such evidence also referred to the chemical examination report and submitted that no blood was found on the stone and the human blood found in the blood stain earth was not proved to be that of the deceased. There appears to be some substance in such contention of the learned counsel for the appellant as the chemical examination report is silent about the existence of bloodstain on the stone seized at the instance of 11 the appellant and it is also silent as to whether human blood found on the bloodstained earth is that of the deceased or not.
12. On analysis of the evidence of P.W.16, it is proved that the deceased had been subjected to rape. There is no evidence that it is the appellant, who committed the rape. So far as the offence under Section 302 of IPC is concerned, prosecution has been able to prove that while in police custody, the appellant had shown both the places where he is alleged to have committed rape and murder and also gave recovery of the stone by means of which he has assaulted the deceased. The other circumstantial evidence relied upon by the trial court are not circumstances which could be used against the appellant, except the evidence of P.W.10 to the effect that in the fateful evening the appellant had purchased two chocolates from his shop. We are therefore of the view that prosecution has not been able to prove a chain of circumstances pointing at the guilt of the appellant leaving no scope to entertain a doubt. In this connection, reference may be made to a decision of the Hon’ble Apex Court in the case of Wakkar & another Vrs. State of U.P. reported in I (2011) CCR 38.(SC). Law is well settled that suspicion however strong it may be, it cannot take place of proof. From the evidence adduced by the prosecution undoubtedly a strong suspicion arises with regard to involvement of the appellant, but such suspicion cannot take place of 12 proof. If there is a little doubt in mind, benefit of such doubt must be extended to the appellant.
13. We accordingly extend the benefit of doubt and acquit the appellant of the charges. The appeal is allowed and the judgment and order dated 19.9.2006 passed by the learned Additional Sessions Judge (F.T.), Sambalpur in S. T. Case No.35/19 of 2005 convicting the appellant for commission of offence under Sections 302 and 376(2)(f) of IPC is set aside. It is stated that the appellant is in custody. If that be so, he be set at liberty forthwith, unless his detention is required in any other case ……………………… L. Mohapatra, J.C. R. Dash, J.I agree. ……………………… C. R. Dash, J.Orissa High Court, Cuttack. The 16th August, 2012/C.R.Biswal. 13