Judgment:
1. of a fair trial. Even in cases of most heinous offence, which shakes human conscience, a person cannot be convicted or condemned without a regular trial as per the procedure established by law. Only after a regular trial, in which the accused is given enough opportunity of defending himself, can an individual be convicted of any felony. This is a case where on the face of it, the court is very concerned about the crime and the way it was perpetuated. However, the court has to take a perspicacious view of the matter and see if the conviction recorded by the learned Sessions Judge and the order of sentence i.e. death penalty, which has been referred to this Court under Section 366 of the Code of Criminal Procedure, 1973, hereinafter referred as "the Code," for brevity, are correct or not.
2. The condemned prisoner-appellant, hereinafter referred as the 'accused' for brevity, was charged for the offences under section 302, 376 (2) (f) of the Indian Penal Code, 1860, hereinafter referred as "I.P.C.", for brevity, and under section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is alleged by the prosecution that on 24.12.2007 at about 10.30 P.M., K.Chenneye, K.Benga and K.Manoj and the present accused came to the house of the informant Duryadhan Das to call him to attend the funeral feast that was being given on the death of one K.Appeya. On such information, the informant's brother Kamadeba Das and his children left for the feast. K. Chenneya, K.Benga and K.Manoj also went back. The accused remained there. In the meantime, the informant's daughter, i.e. the deceased, aged about 8, woke up and expressed her desire to attend the feast. The informant was not willing to let her go, but the accused proposed that he would take her with him. The informant agreed and allowed the victim to go with the accused. At about 11.30 P.M. Kamadeba, the informant's brother returned home along with his children. The victim was not with him. So the informant enquired from Kamadeba about the victim and was informed that he had not seen the victim at the feast. Thereafter, the informant and others went in search of the victim. In course of such search, they came across the accused near "Mati Khana Chhaka". On being asked regarding the victim, the accused told that he left her near the school premises.
3. Search continued but the victim was not traced out. Some of the villagers went towards the thrashing floor of the accused. They found the dead body of the deceased lying on the thrashing floor with multiple injuries. The informant and others getting that information went there. Near the thrashing floor, the deceased's CHADI and LUNGI, (with which she used to wrap herself) were lying on the backside of the 'Pinda' of the accused's cow-shed. There was also stone stained with blood lying near Chadi and Lungi. A trail of blood found leading upto the cow dung pit within the thrashing floor belonging to the accused, where the dead body of the deceased was lying with injuries over her neck face and other parts of the body. A blood-stained yoke (Juali) was lying near the dead body. The villagers then searched for the accused but he had fled.
4. Suspecting that the accused had committed the murder of the child after ravishing her, the informant lodged a report before the O.I.C. Hinjili Police Station. Then the police took up investigation. The dead body was sent for postmortem examination. The accused was apprehended and was sent for medical examination. The postmortem revealed, inter alia, that there was sign of recent forcible sexual intercourse with the deceased. Injuries on the body of the deceased were found to be ante mortem in nature and the death was caused as a result of the complications of the injuries. On medical examination, the accused was found to be capable of sexual intercourse. The doctor also found that there was sign of recent sexual intercourse on his private parts.
5. The defence took the plea of complete denial the allegations. Additionally, the defence pleaded that the accused usually stays at Bombay. There are two rival groups in the village. The Bauries of the village had forcibly dispossessed the father of the accused from their landed property and have created compelling circumstances for which the accused's father had left the village. The accused also pleaded that on getting the information that the Bauries had forcibly cultivated their land and occupied the thrashing floor, the accused came to the village and threatened that he would lodge complain against them. The accused, therefore, pleads that he has been falsely implicated in this case.
6. To bring home the charges, prosecution examined 24 witnesses. P.W. 1- Duryodhan Das is the informant and P.W. 2 Baguli alias Draupadi Das is his wife. P.W. 10 Kapal Benga, P.W. 11-Kapil Cheneya and P.W. 18-K. Manoj Kumar had gone to the informant's house to invite him to the feast. P.W. 5-Kamadeba Das is the brother of the informant. P.W. 6-Prakash Das searched for the deceased and found her dead body on the thrashing floor. P.W. 3 Gadadhar Sethy, husband of the local Sarpanch had informed the police over telephone about the killing of the child. P.W. 4-Bangali Das had searched for the deceased. He was also a witness to the inquest. P.W. 7-E.Narayan is the scribe of the F.I.R. P.W. 8 Aruna Das is a witness to the seizure. P.W. 9, Hiranya Das has gone to the thrashing floor and saw the dead body of the deceased. The rest of the witnesses are official witnesses.
The defence has neither examined any witness nor led any documentary evidence in support of its case.
7. After a detailed examination of the materials on record, the learned Sessions Judge has come to the conclusion that the prosecution has established its case beyond all reasonable doubt on the circumstantial evidence led in this case. Accordingly, the learned Sessions Judge has come to the finding that the accused is guilty of the offence under section 302 and Section 376 (2)(f) of the I.P.C. However, the Sessions Judge has found that the accused is not guilty of the offence under section 3 (2) (v) of the SC & ST (PA) Act and acquitted him of that charge. After considering the question of sentence at length, the learned Sessions Judge has sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.10,000/- (Rupees ten thousand), in default, to undergo rigorous imprisonment for two years for the offence under section 376 (2)(f) of the I.P.C. He further sentenced the prisoner to death for the offence punishable under section 302 of the I.P.C. and directed in terms of Section 354 (5) of the Code to hang the convict by neck till his death. Thereafter, the learned Sessions Judge has submitted the records of the Sessions Case for a reference under section 366 of the Code. The condemned prisoner also submitted an appeal through the Jail Authorities. Both the cases are taken up for hearing together. Initially, a counsel was appointed by the High Court Legal Services Committee to argue the case on behalf of the accused. However, Sri J. Katakia filed Vakalatnama for the accused and argued the case extensively.
8. In a case of murder, the first duty of the prosecution is to prove that the death of the deceased was homicidal in nature. In this case, to prove the nature of the death of the deceased, the prosecution relies on the evidence of P.W. 19 Dr. Sudeepa Das, Asst. Professor, Department of Forensic Medicine and Toxicology, M.K.C.G. Medical College and Hospital, Berhampur. He has stated on oath that on 25.12.2007, he was Assistant Professor and on that date at 4 P.M. on police requisition, he conducted postmortem over the dead body of the victim, daughter of Duryadhana Das of village Dayapalli, P.S. Hinjili. The dead body was identified to him by C/648-Lokanath Patra, Grama Rakhi-Dinabandhu Das, father and uncle of the deceased. In course of postmortem examination, he found
(1) Contused abrasion on entire left side of face starting from above frontal hair margin extending upto mandible down below and laterally from the tragus of left ear and going up to the bridge of nose medially over which 3 lacerated wounds were found present. (a) The lacerated wound of size 2 cm x 2 cm x bone deep present obliquely over left eye brow. (b) Another lacerated wound of size 5 cm x 2 cm x bone deep with fracture of underlying maxilla. (c) Lacerated wound of size 5 cm x 2 cm x mouth cavity deep present over the left cheek 2 cm below and 1 cm anterior to external injury no.(b).
(2) Inner surface of both upper and lower lips at its middle found contused, lacerated with fracture of underlying mandible with traumatic dislocation of lower jaw-teeth.
(3) Contused abrasion of size 12 cm x 6 cm present over the right side face starting above from the forehead and extending below up to the cheek.
(4) Multiple abrasions and abraded contusions of various shapes and sizes present extensively and almost transversely involving the lower neck and upper chest and going upwards to shoulders on either side and covering an area of 19 cm x 8 cm.
(5) Abraded contusion of size 5 cm x 4 cm present over the antero medial surface of right upper arm.
(6) Abraded contusion of size 5 cm x 4 cm is present over the outer surface of the left side mid arm.
(7) Two numbers of small contused abrasions each of size 2 cm x 1 cm present 2 cm apart from each other lying 1 cm posterior to right mastoid process.
(8) Extensive contusion present over left scapular area of size 14 cm x 8 cm.
(9) A contused abrasion present obliquely over the left lateral chest of size 8 cm x 3 cm lying 7 cm below the armpit.
(10) Linear scratch abrasion (nail marks) are present almost vertically of length 7 cm over the posterior- medial aspect of left thigh extending from above downwards.
The Doctor has further stated on oath that on dissection he found
(1) Patchy contusions of scalp at left forehead, right temporal area and entire occipital area.
(2) Thin layer subdural haemorrhage on either side of cerebral hemisphere and also at the base present.
(3) Extensive chest contusions and extravessation of blood underneath external injury no.4 with fracture of 1st and 2nd ribs on mid clavicular line on left side.
On examination of the genital of the deceased, the doctor found the following:
2nd decree perineal tear involving the posterior surface of introitus, extending up to the anal verge with surrounding extravasation, inflammation and contusions. Some foreign heirs found sticking to the external genitalia which have been collected preserved and handed over to the accompanying police escort.
It is further found from the evidence of this witness that the team of doctors examined a stone and a Juali. The doctor has opined that the external injuries, which they found on the person of the deceased, were all ante mortem and homicidal in nature. In the opinion of the doctors, the death of the deceased had occurred because of internal injury no.2, corresponding to external injury no.1 and complications arising thereon. They have fixed the time of the death from the autopsy to be 12 to 18 hours. The doctor has further opined that except external injury no.10 and genital injury could have been caused by forceful thrust by either of the exhibits M.O.I and II (by Stone and Juali). He further opined that external injury no.10 is consistent with the nail marks, with all possibility due to forceful separation of the thighs. The injuries found on the genital could have been produced due to attempted penetration/penetration by hard and blunt object/erect male genitalia. The doctor has further opined on oath that the vaginal smear has been preserved for studying in the Department. On examination presence of intact spermatozoa suggested forceful recent sexual intercourse.
Thus, from the above evidence, the prosecution has amply proved that the death of the deceased was homicidal in nature and that the deceased/victim was subjected to forcible sexual intercourse. These findings of the learned Sessions Judge are unassailable.
9. Both P.Ws. 1 and 2 parents of the deceased have stated that the deceased was then aged about 8 years. This aspect was not challenged by the defence in course of the trial nor has it been raised in this appeal/reference. Thus, from the above, a clear charge under section 302 and Section 376 (2)(f) of the I.P.C. has been made out. The other important aspect is that the case is whether the prosecution has established its case beyond all reasonable doubt that the accused has committed the offences of rape of a minor girl and has murdered her. The prosecution undisputedly has not led any direct evidence in this case and has relied upon various circumstances to bring home the charges against the accused.
10. While dealing with the circumstantial evidence, the court has to be very careful and circumspect so that an innocent person is not convicted. The Supreme Court way back in 1952 in Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 has warned about entering into conjectures and surmises in such cases. Justice Mahajan has before quoting Barron Alderson's address to the jury in Reg. V. Hodge (1838) 2 Lewin 227 has observed that in dealing with circumstantial evidence, the rule especially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. Thereafter, Justice Mahajan quoted Barron Alderson's address. We find it apt to reproduce the exact words.
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
The Supreme Court further held that it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. It was further observed that the circumstances should be of a conclusive nature and tendency should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
The principles guiding cases based only on circumstantial evidence also came up for consideration before the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. Justice Fazal Ali very pithily summarized the law of the land in this respect. The Supreme Court in that case laid down five golden principles or the Panchasheela to prove a case based on circumstantial evidence; they are :-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
11. In Jaharlal Das v. State of Orissa, (1991) 4 OCR (SC) 278, the Supreme Court has held that it is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions; (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
12. It may not be necessary to refer to other authoritative pronouncements of the Supreme Court except to keep in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture and suspicion may take place of legal proof and such suspicion, however strong cannot be allowed to take place of legal proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of a legal proof. The court must satisfy that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood that the accused may not be the author of the crime. Thus, having reminded ourselves of the law governing the field, the evidence led in this case has to be carefully examined to see if the learned Sessions Judge has come to a correct conclusion or not.
13. The evidence of P.Ws. 1 and 2 reveals that in the fateful night at about 10 P.M. Kapula Benga (P.W. 10), Kapula Cheneya (P.W. 11) and Kapula Manoj (P.W. 18) along with the accused came to their house and called Duryodhan Das (P.W. 1) to attend the funeral feast of K.Apeya of that village. P.W. 1 declined to attend the feast and advised them to invite his brother Kamadeba (P.W. 5) to the feast. It is further found in the evidence that Kamadeba left for the feast with his children in the company of P.Ws. 10, 11 and 18. At that time, the deceased who was asleep woke up and requested that she would go to attend the feast. The informant asked her not to attend the feast, but at that time the accused told the informant that he would take the deceased to the feast and leave her with Kamadeba. It is further found from the evidence of these two witnesses that believing the accused the parents of the deceased had allowed her to proceed to attend the funeral feast in the company of the accused.
14. At about 11 P.M., when Kamadeba returned along with his children, parents of the deceased asked regarding their daughter as she did not return home with her uncle. Kamadeba informed the informant that he has not seen the deceased/victim at the feast. Thereafter, they went in search for the deceased and when they asked the accused as to what has happened to the daughter of the informant, he told that he has left the deceased near the school. The villagers searched for the deceased not only in the house of the Apeya where the feast was being given but also in the school where the accused has stated to have left the victim, but they could not get any trace of the victim. Thereafter, Prakash, Abhi and Aruna proceeded towards the 'Khala' of the accused, where they found the wearing apparels of the deceased as well as the dead body.
15. Examination of the evidence of P.Ws. 10, 11 and 18 reveals that in December, 2007 on the date of incident they have been to invite Duryodhan Das, the informant. Duryodhan Das refused to attend the funeral feast but his brother Kamadeba and his two children went with them to participate in the funeral feast. They also invited the accused, who was in their Sahi. The accused did not go with them and remained in the house of Duryodhan Das. P.W. 11 says that the accused was following them when they were going to the house of Duryodhan Das for invitation. But he has stated in the cross- examination that he has not seen the accused going to the house of Duryodhan Das or any other house. Such statement does not mean that he did not go near the house of the informant. It is further evident from the statement of the witnesses that the informant was sleeping in the front varendah of their house. So, P.W. 11 actually stated that the accused did not enter inside the rooms of the house of the informant. P.W. 18 has also stated in his evidence that they proceeded to the house of Duryodhan Das. At that time, they saw the accused in the Sahi. P.W. 18 states that when they arrived at the house of Duryodhan Das, he and his family members were asleep on the verandah of the house. On their call, Duryodhan Das woke up. The accused was standing there three to four houses apart from them. This witness has clarified that the house of Kamadeba was just in front of the house of Duryodhan Das. Kamadeba was also invited to the feast.
16. Learned counsel for the appellant has very emphatically submitted that the evidence of P.Ws. 10, 11 and 18 are not supporting the case of the prosecution. It is also contended that the evidence of P.W. 18 has not been confronted to the accused. Hence, it is submitted that the accused is prejudiced. The learned counsel for the appellant also submitted that the accused's presence there is not free from doubt. Hence, there is no chance of his taking the girl to the feast. It is also submitted that the deceased was asleep when the witnesses invited the informant to attend the feast, then how could she know that a feast was going on after she woke up?
The learned Addl. Government Advocate, on the other hand, submitted that the prosecution has proved its case and the argument of the appellant is hypothetical.
17. On careful examination of the impugned judgment it reveals that the learned Sessions Judge has carefully examined the evidence on record and has come to the conclusion that the prosecution has proved its case beyond all reasonable doubt to establish its case successfully that the accused was present and he took the girl along with him. P.Ws. 1 and 2's evidence in this respect is very clear. Only because they are relations of the deceased, their evidence cannot be thrown away, especially when they have withstood rigorous cross-examination and not a single contradiction has been brought out by the defence with this aspect of their testimony. The evidence of P.Ws. 10, 11 and 18 also supports the sworn testimony of the informant and his wife in the sense that the accused was present there when they invited the informant. It is true that these three witnesses have not stated that the accused was also accompanying them for inviting the informant. But such a small difference in perception of P.Ws. 1 and 2 shall not falsify the case of the prosecution.
18. The accused has been examined under section 313 of the Code. It is true that the learned Sessions Judge has not specifically questioned the accused of the evidence of P.W. 18 but questions No. 20, 21, and 22 reveal that the effect of the evidence of P.W. 18 has also been put to the accused as he has stated almost the same opinion as that of P.Ws. 10 and 11. Moreover, the accused has taken the plea that the statement made by P.Ws. 10 and 11 are false. The learned Sessions Judge has proceeded with the presumption that the accused has also denied the evidence of P.W. 18 to be false, though he has not specifically mentioned about any such presumption, such presumption is flowing out of the judgment rendered by the learned Sessions Judge. So we are of the considered view that no prejudice has been caused to the accused for such omission of putting a question to him in this respect.
19. P.W. 4, the maternal uncle of the deceased, states that on 24.12.2007 around 11.30 in the night while he was asleep in his house, he heard a hue and cry and heard his sister Baguli Das crying and shouting that her daughter was missing from the village. On hearing that, he woke up and came out of the house. They all went in search of the deceased towards the pond side and found the accused standing near the pond. Then on being asked, the accused disclosed that he left the deceased near the school. They went in search of the girl but were informed that her dead body was lying in Khata Khana of the thrashing floor of the father of the accused.
P.W. 5 is the uncle of the deceased, who has stated on oath that after his return from the feast, his brother Duryodhan asked him about his daughter i.e. the deceased but the witness expressed his ignorance and stated that he had not seen her in the feast. Thereafter Duryodhan disclosed that she had gone to attend the feast in the company of the accused. They searched for the deceased and met the accused at Mati Khana Chhaka. On being asked the accused told that he had left the girl near the school but as the witness and others searched the daughter near the school, they could not get any trace of her. On their search they found a Chadi and Lungi of the victim with blood stains lying on the threshing floor of the father of the accused. There were also blood stains upto the Khata Khana (cow dung pit). When they proceeded to the Khata Khana, they found the dead body of the deceased with bleeding injuries on her private parts and other parts. Blood-stained stone and 'Juali' were also lying at the spot. Such statements of P.W. 5 receives corroboration from P.W. 6, P.W. 7 and P.W. 9, who speak about the finding of the dead body in the cow dung pit on the threshing floor belonging to the father of the accused. Thereafter, a report was lodged before the O.I.C., Hinjili P.S.
20. From the aforesaid evidence it appears that the prosecution has proved that the accused was present when P.Ws. 10, 11 and 18 had gone to the house of Duryodhan Das for invitation to attend the funeral feast. After their departure from that place, he volunteered to take the deceased/victim girl with him to the feast to leave her with her paternal uncle. Accordingly, the deceased was last-seen in the company of the accused. Further, it is evident from the materials on record that the victim never reached the funeral feast. The accused also did not leave her in the custody of her uncle. About one hour thereafter, the accused was found alone. It is also evident from the materials on record that he was found about 250 feet away from the spot near the pond i.e. Mati Khana Chaka about an hour after their departure from the house of Duryodhan Das. About half an hour thereafter, the deceased was found ravished and murdered.
21. The learned counsel for the accused has submitted that in this case the prosecution has failed to prove its case and relied mainly on such circumstance, which is known as "last-seen theory". It is submitted by the learned counsel for the accused that the last-seen theory alone is not sufficient to convict the accused. It is worthwhile to note some of the important decisions of the Supreme Court on this issue. In State of Utter Pradesh v. Satish, (2005) 3 SCC 114; the apex Court has ruled as follows:
"The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
In this case there is positive evidence that the deceased and the accused were seen together by the witnesses P.Ws. 1 and 2.
In the case of Ramreddy Rajesh Khana Reddy and another v. State of A.P., (2006) 10 SCC 172; the Supreme Court has held that the last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.
In Bodhraj alias Bodha and others v. State of Jammu and Kashmir, (2002) 8 SCC 45; the Supreme Court further held that the last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The Supreme Court further held that it would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. But keeping in mind such observation, on an analysis of evidence in this case, this Court comes to the conclusion that after one hour of their departure from the house of the informant, the accused was found standing alone and stated that he has left the girl in the school premises. However, half an hour thereafter, the dead body of the deceased was found, the time gap between the departure of the accused and the deceased, the accused standing alone at Matikhana Chhaka and the discovery of the dead body of the deceased from the cow-dung pit of the thrashing floor of the father of the accused is so small that there appears to be hardly any substantial apprehension that some other person might have come and taken the deceased from the custody of the accused.
22. The trial court has also relied upon the circumstances that when the accused was found he gave a misleading answer that he has left the deceased in the school premises. Learned counsel for the appellant says that this is not an incriminating circumstance and the court cannot come to the conclusion that the answer given by the accused is misleading. However, the evidence on record reveals that the deceased was to be left in the company of her uncle which was not done by the accused. It is also seen that the witnesses searched the school premises and they could not find any trace of the victim girl, which shows that the accused neither left the girl in the company of the uncle as promised by him nor in the school premises. Moreover, he was found standing about 250 feet away from the spot where the dead body of the deceased was found lying.
23. P.W.4 Bangali Das stated on oath that they searched for the accused and found that he had absconded from the village. P.W. 21 has also stated that in the night of occurrence, he searched for the accused but could not get him as he has absconded from the village. He was apprehended by P.W. 21 (Investigating Officer) near Kukudakhandi hospital on the next day. This is a fact which has been admitted by the appellant in his examination under Section 313 of the Code. He admitted in the accused statement that he was waiting to catch a Bus. He was apprehended on 25.12.2007 at 5.30 P.M. Thus, the prosecution has also established that immediately after finding of the dead body, the accused was absent from the village i.e. he had absconded and was arrested on the next date in a different village while he was waiting to catch a Bus.
24. After his apprehension, he was examined by Dr. K.K.Patnaik (P.W. 13) on 26.12.2007, who was Assistant Professor, Department of F.M.T., M.K.C.G. Medical College and Hospital, Berhampur. He has stated on oath that on examination of the private part of the accused, he found no erectile dysfunction and there was nothing to suggest that the accused was incapable of performing sexual intercourse. He found the frenum was loose and elastic with a haemorrhagic abrasion of size 0.5 cm x 0.5 cm close to its attachment with the shaft. On examination of the glans of the penis, he found tip of glans cornified with oedema and inflammation. Four to five small haemorrhagic abrasions were found close to the base of the glans around corona glandis. He also found two loose hairs sticking to the glans-surface, which were collected and preserved separately. There he did not find any mechanical injuries anywhere on the body of the accused except his private parts. The doctor has very positively opined that the presence of injuries, as described above, on the private parts of the accused are consistent with forcible penetration of the erected penis and therefore, there was medical evidence of recent sexual intercourse. In the cross-examination, he has stated that he has not mentioned the age of the injuries on the private part of the accused. The learned counsel for the accused argued that such injuries are possible as he is a married man. Though the witness has been cross-examined, not a single suggestion has been given that the injuries were possible for having sexual intercourse with his own wife. It is admitted that the accused is a married man having children. So argument advanced by the learned counsel for the appellant is that he has explained that he has sustained such injuries while cohabiting with his wife, is also not proper. In order to advance such an argument, the witness i.e. P.W. 13 should have been asked pointed question regarding possibility of injuries on his private part while cohabiting with his wife with consent. Moreover, the accused has not stated in his Section 313 of the Code statement that he sustained injuries on his penis while cohabiting with his wife.
25. Mr. J. Katikia, learned counsel appearing for the accused-appellant very emphatically submitted that there was previous enmity between the informant and the family of the accused relating to land and, therefore, the evidence of the witnesses especially P.Ws. 1 and 2 should be taken with a pinch of salt. On the other hand, Mr. Nayak, learned Addl. Government Advocate argued that there is no evidence on record that there is any personal enmity between the informant and the accused. The attention of the Court was drawn to paragraph 4 of the evidence of P.W. 2, wherein in cross- examination she has stated that they belong to Bauri caste and the accused is Ellama by caste. The accused belongs to general caste category. She has stated that they have dispute with the general caste people in their village. But she has denied the suggestion that the Bauries have forcibly occupied the lands of the father of the accused including his thrashing floor and the accused on hearing that, came and protested, they (the informant and others) foisted the case in connivance with the Sarpanch. It is also in evidence that the Sarpanch belongs to the scheduled caste category. What is evident from this paragraph is that there may be a general ill-feeling between the general caste people and the persons belonging to the scheduled caste. It cannot be said that there was a personal enmity between the informant and his family in one hand and the accused and his family members on the other. The ill-feeling due to the caste difference may howsoever be grave, the parents of the victim cannot be expected to implicate an innocent person by sparing the guilty. Evidence of P.Ws. 1 and 2 is only with respect to the fact that the accused taking the victim girl to the feast. The evidence on record cannot be held to be tainted only because of such caste difference between the parties. Thus, the contention raised by the learned counsel for the appellant is not acceptable.
26. The learned counsel also submitted that there has been delay in lodging the F.I.R. The F.I.R. has been marked as Ext.1. The F.I.R. has been lodged at 2 A.M. in the night. Evidence of P.W. 21 Deepak Kumar Misra reveals that on that day at 1.15 O' clock in the night, he received a telephonic call from Gadadhar Sethi about the offence. He entered this fact in the Station Diary Book and rushed to the spot along with other staff. It is evident from the statement of P.W. 20 that at 3 A.M. he received the F.I.R. (submitted by P.W. 1) from Raghunath Sadangi and registered P.S. Case No.206. P.W. 1 has stated that he submitted the F.I.R. that night. It was scribed by one Narayan. P.W. 7 in cross-examination has stated that he has scribed the F.I.R. at 7 A.M. on the next day as per the direction of Duryadhan Das. However, the F.I.R. itself shows that the same was received at the spot at 2 A.M. on 25.12.2007 and to that effect, there has been endorsement by the Officer In-charge, Hinjili Police Station. There is also an endorsement on it "at 3 A.M." it was received by the In-charge officer at the Police Station. Thus, we are of the opinion that the statement of P.W. 7 that he has scribed the F.I.R. on the next date, cannot be given much weight to and we do not take that evidence into consideration and ignore the same.
It cannot be disputed that there has been a promptitude in lodging of the F.I.R., which foreclose any chance of concoction and deliberation. The learned counsel argues that the telephonic message received by the officer In-charge is the F.I.R. and hence the written F.I.R. Ext.1 is hit by Section 161 of the Code. In Dhananjoy Chatterjee alias Dhana v. State of W.B., (1994) 2 SCC 220, the Supreme Court held that a telephonic message making the investigating agency only to rush to the spot does not constitute an F.I.R. In this case also, though information was given the same cannot be construed to be a complete description of the occurrence and hence, the written F.I.R. is not hit by Sections 161 and 162 of the Code.
27. The Investigating Officer in this case requisitioned the assistance of a Scientific Officer, who has been examined as P.W. 14. It is seen that this witness, who was working at that time as a Scientific Officer of the District Forensic Science Laboratory, Chhatrapur proceeded to the said village and at 10. A.M. he arrived at the thrashing floor (Dhanakhala) of the accused Ardhu Chandreya at "Matikhana Gorji" of Dayapalli. In course of spot visit, he detected pool of blood on the verandah of the cow-shed of the accused Ardhu Chandreya, which was at a distance of 110 feet from the dead body. From the spot, he collected the blood-stained earth, sample earth, straw stained with blood, a half pant and printed lungi of the deceased. These material objects were sent for chemical examination. The chemical examination further reveals that the sample earth and the blood stained earth taken from the spot are similar with respect to their physical characteristics. Further human blood was found on the blood-stained earth, the blood-stained straw, the wooden Juali and Stone among other articles. These scientific findings very objectively determine the spot of occurrence.
28. Learned counsel for the appellant, in course of argument submitted that the chemical and serologist's report shows that there was no foreign hair in the hair collected from the vagina of the deceased. It is not disputed and also we have already come to the conclusion that the victim was an 8 years old girl and it is well known that among the human pubic hair starts growing around the puberty. So, it is accepted that the victim girl was not having pubic hair. At paragraph 3 of his examination, P.W. 19, the Doctor, who has conducted the postmortem examination on the dead body of the deceased, has stated that some foreign hairs were found sticking to the external genitals, which were collected by him. Learned counsel for the appellant very emphatically submitted that since no foreign hair was found in serial no.16, the accused cannot be held to be guilty. The Forwarding Report of material objects, marked as Ext.18, reveals that the hairs collected from the vagina of the victim have been marked as 'N' for identification. In course of investigation, sample pubic hairs the accused was also collected and it is marked as 'O' in the Forwarding Report. At paragraph 8 of the last page of the Forwarding Report, the S.D.J.M., Chhatrapur has directed the examiner to examine the Ext 'N' and opine if the foreign hair found there tallies with the pubic hair on Ext. O. This examination has not been conducted by the chemical examiner. Thus, this is a flaw in the investigation. Hence, the finding that there was no foreign hair in Ext. 'N' cannot rule out the complicity of the accused in the commission of the crime. This flaw in investigation will not throw out the prosecution case. Investigation is not the solitary area for judicial scrutiny in a criminal trial. It is well neigh settled that even in cases of flawed investigation, the rest of the evidence must be scrutinized independently of the impact of it. Otherwise criminal trials will plummet to the level of the investigating agency ruling the roost. The courts must have predominance and preeminence in criminal trials over the actions taken by the investigating officers. Criminal justice cannot be made casualty for the wrongs committed by the investigating officer in the case. (State of Karnataka v. K.Yarappa Reddy; 2000 SAR (Cri) 37) = (1999) 8 SCC 715 = AIR 2000 SC 185.
29. Thus, from the above evidence, the learned Sessions Judge has cited five different circumstances, but we are of the considered opinion that the circumstances have been grouped together and some important circumstances though have been considered while discussing the evidence have not been specifically spelt out in the judgment impugned. In our considered view, prosecution has established its case by proving the following circumstances.
1) The accused was present near the house of the informant, after the departure of P.Ws. 10, 11 and 18 and volunteered to take the deceased to the feast and to leave her in the company of her uncle;
2) The accused and the deceased were last-seen together at about 10 P.M. when they left for the feast;
3) The accused did not leave her in the company of her uncle.
4) The victim was not seen at the feast.
5) One hour after such departure, the accused was found alone at the Matikhana Chhaka, which is about 250 feet away from the spot.
6) On enquiry he gave misleading answers by stating that she has left the girl in the school premises.
7) The victim was not found in the school premises.
8) About half an hour after the accused gave misleading answer, the dead body of the deceased was found in the cow-dung pit and having bleeding injuries on her private parts and body etc.
9) On search, they found blood-stained Chadi and Lungi (which was used by her to wrap herself) of the deceased on the threshing floor belonging to the father of the accused.
10) P.W. 14 found a pool of blood on the veranda of the cowshed. Blood trail was leading towards cow dung pit.
11) The postmortem examination reveals that all the injuries found on the dead body of the deceased were ante mortem in nature and the death of the deceased was homicide.
12) The doctor has conclusively opined that there was forceful penetration of erected penis/hard object inside the vagina of the victim girl.
13) The presence of intact spermatozoa leads to the conclusion that she was forcibly ravished.
14) The injuries found on the penis of the accused are consistent with the forceful penetration of the erected penis. There is clear medical proof of recent sexual intercourse.
15) The accused absconded from the village that night and was arrested on the next date from a different village.
30. From the aforesaid circumstances, this Court comes to the conclusion that the Sessions Judge has not erred in holding that the accused is the author of the crime. The residual question that remains to be adjudicated in the Death Reference/Criminal Appeal is, whether the death penalty is the appropriate punishment in the case?
31. The learned Sessions Judge held the case to be rarest of the rare when all other options but the severest sentence is foreclosed and accordingly proceeded to sentence the accused to be hanged by neck till death. The learned counsel for the appellant has argued that this is not a rarest of the rare case. It is submitted by the learned counsel that the convict has no criminal background, during his detention in the jail no adverse report has been submitted by the Jail Authority/Probation Officer, the case rests on circumstantial evidence and his wife and children are dependent upon him. The learned counsel, therefore, submits that the death sentence should be commuted to imprisonment for life. In course of hearing, the learned Addl. Government Advocate, however, submitted that there is a plethora of cases, where the Supreme Court has upheld punishment of death in case of rape and murder of a minor girl, as the offence speaks of the extreme depravity of the accused.
32. Sentencing is the cutting edge of the criminal justice administration. An appropriate sentence is as important as the just conclusion regarding establishment of charges. It is the duty of the Court not only to hold an accused guilty when the offence has been proved beyond all reasonable doubt and to acquit a person who is proved to be not guilty, it is also the sacrosanct duty of the court to impose appropriate punishment. While deciding the punishment, the court is confronted with the crucial task of striking a balance between the protection of the Society on one hand and the correction of the offender on the other. Penologists agree that the quantum of punishment largely depends on five considerations, those are; retribution, deterrence, denunciation, incapacitation and rehabilitation. The most important considerations are deterrence and rehabilitation. The punishment should be such that it should deter others from committing the offence but at the same time in appropriate cases, there should be proper opportunity for the offender to correct himself and rehabilitate in the mainstream.
33. Sub-Section (3) of Section 354 of the Code provides that whenever the Court awards death sentence for the offence which has alternative punishment for imprisonment for life or death sentence, the special reasons for such sentence are to be stated. Such provision was considered by the Constitutional Bench of the Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 and it was held that such provision makes a significant shift in the legislative policy underlying the Code of Criminal Procedure, 1898, according to which both alternative sentence of death or imprisonment for life provide for murder and for certain other capital offences under the Penal Code were normal sentence. Now, according to this changed legislative policy, which is patent on the face of Section 354 (3)of the Code, the normal punishment for murder and six other capital offences under the Penal Code is imprisonment for life (or imprisonment for a term of years) and a death penalty is an exception. While considering the question if sections 302, I.P.C. and 354 (3) of the Code are ultra vires of the Constitution of India, the Supreme Court in the aforesaid case has held that death penalty is not unconstitutional. However, it should be inflicted only in the rarest of rare cases. However, the Hon'ble Supreme Court has pointed out that no standardization can be made in which such severest of punishment can be imposed, the reasons being;
Firstly, there is little agreement amongst the penologist and jurist as to what opinion about the crime and criminal is relevant and what is not relevant for fixing the dose of punishment for a person convicted for a particular offence;
Secondly, criminal cases do not fall into set-behavioristic patterns. Even within a single category of offence there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical.
Thirdly, standardization of a sentence process which leaves little room for judicial discretion to take account of variations in culpability within a single offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity;
Fourthly, standardization or sentencing discretion is a policy matter which belongs to the sphere of the legislation. When the Parliament has a matter of sound legislation already did not deliberately restrict, control or standardise, the sentence discretion any further than that is encompassed by the board contours delineated in section 354(3) of the Code, the Court would not by overleaping its bounds rush to do what the Parliament in its wisdom warily did not do.
34. In Machi Singh and others v. State of Punjab, AIR 1983 SC 957, the Hon'ble Supreme Court has laid down that in order to decide, whether the extreme penalty should be imposed, the following questions may be asked and answered;
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
The learned Sessions Judge has taken into consideration the following aggravated circumstances;
(i) The convict was 34 years at the time of incident. He is a married man having his own children. He is neither a bachelor nor too young to control his sexual urge.
(ii) He usually resides in Mumbai, therefore, he is not a rustic villager and he belongs to the higher socio-economic plane than the victim.
(iii) Having committed the offence of rape, he brutally killed an innocent child using a heavy stone by giving repeated blows by the stone on her face, head and chest and thereby killed her. This is a diabolic act.
(iv) The parents of the child by act or omission have never created any such circumstance favourable to the accused to arouse sexual desire in him. It was on the suggestion of the convict they had left the child to be taken to a feast.
(v)The brutal act is suggestive of the extent of convict's perversity and depravity of mind.
(vi) There is nothing to suggest that the convict was mentally defective or heavily intoxicated which impaired his capacity to appreciate his own criminal conduct.
(vii) The offences were committed not under the influence of extreme mental or emotional disturbances.
(viii) This is not a case where the accused presume that he believes that he is morally justified in committing the crime.
35. The mitigating circumstance, which was taken into consideration by the learned Sessions Judge are as follows:
(i) The convict has no criminal background;
(ii) During his detention, no adverse report has been submitted by the Jail Authorities.
(iii) The case rests on circumstantial evidence.
On the top of it we add that the accused has a family to support and the children born to him shall also suffer the punishment, albeit indirectly, inflicted on the accused. There is also no evidence that the accused had made any previous planning or premeditated the commission of the crime.
36. The learned Sessions Judge has relied upon the case of Devendra Pal Singh vs. State of NCT of Delhi : 2002 (5) SCC 234; wherein the Hon'ble Supreme Court has held that when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regard desirability or otherwise of retaining death penalty, the same can be awarded. The learned Sessions Judge also took note of Shivaji @ Dadya Shankar Alhat vs. State of Maharashtra : AIR 2009 SC 56, wherein the Hon'ble apex Court has held that the offence of rape of a girl aged below 10 years and her murder thereafter is a case of rarest of the rare category and has upheld the death sentence.
37. The Hon'ble Supreme Court in Dayanidhi Bisoi v. State of Orissa, 2003 (9) SCC 310` has taken into consideration the cold blooded and premeditated approach of the conviction in committing the multiple murder and held that such case falls into the category of rarest of rare cases. The Hon'ble Supreme Court in Aloke Nath Dutta and others v. State of West Bengal, 2006 (13) SCALE 467, at paragraph 173 has observed as follows:
"173. We must remind ourselves that there has been a growing demand in the international fora that death penalty should be abolished. [See Second Optional Protocol to the international Convenants on Civil and Political Rights and the protocol to the American Constitution on Human Rights to abolish death penalty]. Pursuant to or in furtherance of the pressure exhorted by various international NGOs, several countries have abolished death penalty. The superior courts of several countries have been considering the said demand keeping in view the international covenants, conventions and protocol."
Keeping such observations in mind and the various judicial pronouncements of the Hon'ble Supreme Court, the death sentence awarded to Aloke Nath was commuted to imprisonment for life.
38. The propriety of inflicting death penalty again came for consideration before the Hon'ble Supreme Court in Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka, AIR2007 SC 2531; wherein Hon'ble Justice S.B.Sinha took the view that the person accused of rape and murder of a minor girl, keeping in facts of the case in view, is to be punished with imprisonment for life instead of the death penalty. The main reason behind such an opinion, in a case it is based only on circumstantial evidence, is reflected in paragraph 89 which we consider appropriate to quote.
"89. It has been a fundamental point in numerous studies in the field of Death Penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter source of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder."
Further, in the said case, the Hon'ble Justice Markandey Katju did not agree with the conclusions reached by Hon'ble Justice Sinha. The matter was then referred to a Larger Bench. A Bench consisting of three Hon'ble Judges of the Supreme Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, reported in 2008 Crl. Law Journal 3911 endorsed the view taken by Hon'ble Shri Justice Sinha and the sentence of death was commuted to imprisonment for life.
39. In the reference case of Swamy Shraddananda, the Larger Bench of the Hon'ble Supreme Court has held that the death sentence should be substituted by the life imprisonment or by term in excess of 14 years and further directed that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be. Hence, the order was accordingly passed. The reason behind such conclusion is that when an appellant comes to the Supreme Court carrying a death sentence awarded by the trial court and confirmed by the High Court, the Supreme Court may find as in the present appeal that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the court may strongly feel that a sentence of life imprisonment which, subject to remission, normally works out to a term of 14 years would be grossly disproportionate and inadequate. If in such cases the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. It is further laid down that a far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e. the vast hiatus between 14 years' imprisonment and death.
40. From the foregoing discussions, we are of the considered opinion that the case is definitely a very serious one and the allegations have been brought home substantially. However, keeping in view the mitigating circumstances, namely; the convict has no criminal background, during his detention no adverse report has been submitted by the Jail Authority, there is one flaw in the investigation i.e. the omission to compare the hairs collected from the private part of the victim with the sample pubic hair collected from the accused, the accused has a family to support and has small children and there appears to be no premeditation or previous planning to commit the offence and giving maximum weightage to the mitigating circumstance, this Court comes to the conclusion that the severest of the punishment, i.e. the death penalty is not proper in this case. At the same time, this Court is also not inclined to impose the life imprisonment as generally administered, which entails release of the convict after incarceration for about fourteen years. This Court, therefore, comes to the conclusion that the accused/convict should be imprisoned for at least 25 (twenty-five) years, in terms of the ratio decided in Swamy Shraddananda's case (supra) for the offence under section 302, I.P.C.
41. In the result, we uphold the conviction of the accused under Sections 302 and 376 (2) (f) of the I.P.C. but set aside the punishment of death imposed on him and modify the sentence to punishment of imprisonment for life, with the further condition that in this case remission of sentence should not be considered before completion of 25 (twenty-five) years of incarceration. The reference made by the learned Sessions Judge is accordingly discharged and the Criminal Appeal filed by the appellant is partly allowed.
The Death Reference and the Criminal Appeal are accordingly disposed of. Death reference & Appeal disposed of.