PRADIP MOHANTY, J & S.K.MISHRA, J. DSREF NO.3 OF 2010 & CRLA NO.345 OF 2010 (Decided on 21.12.2010) STATE OF ORISSA …….. Complainant. .Vrs. RAJESH HEMBRUM ……….. Respondent. PENAL CODE, 1860 (ACT NO.45 OF 1860) – SEC.320, 366. For Complainant - Mr. Saubhagya Ketan Nayak, Addl. Government Advocate For Respondent - B.K.Ragada, L.N.Patel, N.K.Das & D.Sethi. PRADIP MOHANTY, J. The reference under Section 366 Cr.P.C is made by the learned Additional Sessions Judge, Kuchinda for confirmation of the death sentence imposed by him on the accused while convicting him under Section 302, IPC in S.T. No.36 of 2009 whereas the criminal appeal is preferred by the accused himself challenging his conviction and sentence. Both the death reference and the criminal appeal were heard together and are being disposed of by this common judgment. 2. The case of the prosecution is that on 26.04.2009 at about 3.30 PM while the informant along with some other co-villagers was playing cards behind the house of the accused under a Mahua tree, the wife of the accused called the informant to ascertain as to if her husband had committed murder of her grand-daughter. The informant along with other witnesses and co-villagers rushed to the house of the accused and found blood marks on his verandah. In order to prevent the accused from absconding, they tied him by means of a rope. The wife of the accused brought the key from the accused and opened the bed-room. All of them found that the head of the deceased had been decapitated from her body and lying near a box in the bed-room. The rest part of her body was kept inside a gunny bag. Her blood was collected and stored in a steel utensil (Khuri) in which the deceased was taking her lunch. On being asked, the accused confessed that he had committed murder of his grand-daughter by means of axe with an intention to mix her blood with the paddy and sow blood mixed paddy in the field. They also found the bloodstained axe in the corner of the bed-room. The informant went to Gourpali Out-post and lodged FIR. The Inspector in-charge, Jamankira P.S., who was present in the Out-post, received the FIR, registered the case, took up investigation and after its completion filed charge-sheet against the accused under Section 302, IPC. 3. The plea of the accused is complete denial of the allegations. His further plea is that he had gone to sleep in his house but he was caught, assaulted and falsely entangled in this case. 4. In order to prove its case, the prosecution has examined as many as thirteen witnesses including the doctor and IO and exhibited fourteen documents and the defence has examined none. 5. The learned Additional Sessions Judge on conclusion of trial convicted the appellant under Section 302, IPC and imposed capital punishment besides fine of Rs.5,000/- with default sentence which has been directed to be merged with capital punishment. 6. Mr. Ragada, learned counsel appearing for the accused-appellant assails the impugned judgment on the following grounds: (i) There is no eye witness to the occurrence and none of the circumstances, on which the prosecution has relied to bring home the charge to the accused, has been established. (ii) The extra judicial confession said to have been made by the accused being a very weak piece of evidence and moreover the same having been made when the accused was tied by means of a rope and assaulted by the witnesses cannot be relied upon for any purpose; (iii) Evidence of P.Ws.2, 4, 8, 9 and 10, who are alleged to be the post-occurrence witnesses, cannot be taken into consideration as the same is not only contrary to each other but also full of contradictions and they are highly interested for successful termination of the prosecution case. That apart, P.W.2 having developed the story in Court, his evidence cannot be relied upon. Furthermore, the decision in the village meeting that if the accused returns home his family members will be ousted from their locality being the reason behind P.W.8 and other family members of the accused deposing against him, no reliance can be placed on their evidence. (iv) Presence of blood stains on the wearing apparels of the accused cannot be said to connect the accused in any manner with the alleged offence as because the factum of seizure has not been proved. When such a main link goes, the chain gets snapped and other circumstances cannot establish the guilt of the accused. (v) P.Ws.8 and 9 have admitted that they are Christian by religion and they do not follow the custom of mixing blood with the paddy before it is sown in the field. Therefore, the motive behind the murder of the deceased, as alleged by the prosecution, has not been proved. (vi) The accused is entitled to get benefit under Section 84, IPC, since evidence on record shows that at the time of occurrence he was found slightly mad and had lost his legal cognitive value. (vii) This is not a rarest of rare case where capital punishment is warranted. 2 7. Mr. Nayak, learned Additional Government Advocate strongly contended that the evidence of P.Ws.2, 4, 8, 9 and 10 is very clear, cogent and unimpeachable. P.Ws.4 and 8 are none but the son and wife of the accused. Through the evidence of all these witnesses it is established that when they rushed to the house of the accused, they found blood stains on the verandah and the main door of the house was closed from outside. P.W.8 brought the key of the room and opened the door. When they entered inside, they found the head of the deceased had been separated from her body. The accused, who was present there, confessed before them to have cut the throat of the deceased (his grand daughter) and collected her blood to mix the same with paddy. The severed head of the deceased was found inside the bed room and the trunk was kept inside a gunny bag. Blood was collected and stored in a steel utensil. The medical evidence of the doctor (P.W.13) also corroborated the evidence of ocular witnesses. Therefore, the prosecution has been able to prove the chain of circumstances. The chemical reports also support the prosecution case. He further contended that the present is a rarest of rare case, since the accused had killed his own grand-daughter, who was a tender girl of only eight years of age, in a gruesome manner by severing her head from the body. The accused was not insane at the time of occurrence, but while he was in custody, he developed insanity as per his own statement recorded under Section 313 Cr.P.C. Therefore, learned Additional Sessions Judge has rightly passed the sentence and the death reference should be confirmed. 8. Perused the LCR and the decisions cited by the learned counsel for the parties. P.W.1 is a post occurrence witness who after hearing about the occurrence from the village went to the spot and found the head of the deceased lying apart. The other portion of her body was tied in a gunny bag and blood was collected and stored in a steel utensil inside the house of the accused. P.W.1 is also a witness to the inquest and the seizure, who proved Exts.1, 2 and 3. P.W.2 is another post occurrence witness, who specifically deposed that on the day of occurrence at about 3:00 PM, while he along with others were playing cards near the house of the accused, the wife of the accused (P.W.8) informed that her husband had done something to her grand daughter (deceased) and had closed the door from inside. He along with others went to the house of the accused and found blood on the verandah. The door of the room was closed from inside. Thereafter, they forcibly opened the door, entered inside the room and found that the head of the deceased was separated from the body and lying apart in the bed room of the accused and other portion of her body was tied in a gunny bag and the blood was collected and stored in a steel utensil. They tied the accused by means of a rope and on being asked, he confessed to have cut the throat of his grand daughter and collected her blood to mix the same with paddy. In cross-examination, he admitted that they started playing cards from 12 noon and did not listen any untoward sound or any talking from inside the house of the accused. There is no material to be elicited from his mouth to demolish the above evidence. P.W.3 is another post occurrence witness who corroborated the testimony of P.W.2. He further deposed that on being asked the accused pleaded his ignorance. Prosecution put some leading questions after declaring him hostile. 3 P.W.4 is another post occurrence witness and the son of the accused, who reached at the spot at about 5 pm from Sambalpur after getting information from his sister over telephone that his father had killed the deceased. He found blood on their verandah. He brought the key of the room from P.W.9 and opened the room and found the head of the deceased lying apart inside their bed room. The body of the deceased was kept inside a gunny bag and her blood was collected and stored in a steel utensil. When he arrived at his home, he found his father tied by means of a rope. Nothing more has been elicited from his cross-examination. P.W.5 is a constable and witness to the seizure of bangles, gunny bag and nail clippings. He also proved Exts.4 and 5. In cross-examination, he has admitted that the seizure was made at the police station and he was not present at the time of collection of these articles. P.W.6 is a Havildar and a witness to Exts.4 and 5, who specifically stated in cross-examination that seizure was made in his presence. P.W.7 is another constable, who escorted the accused to the police station and the doctor gave him two vials, one containing the blood samples of the accused and the other containing his nail clippings. P.W.8 is the wife of the accused and the grand mother of the deceased, who specifically stated in examination-in-chief that her grand-daughter was staying with her from childhood because at the early age, her elder daughter (mother of the deceased) became widow for which she was given in marriage. On the day of occurrence, she and her husband (accused) were present along with the deceased. At about 3:00 pm, while her grand-daughter was taking lunch, the accused asked her (P.W.8) to bring Pachwai (Handia). On her refusal to go for handia, the accused gave her Rs.5/- to bring chana. When she returned with two packets of chana, she found that the door of the house was closed from inside. She called the deceased to open the door, but as there was no response from her, she searched for her grand-daughter but could not trace her nor heard any sound. She stood on a small heap of brick and entered the house from backside. When she called her grand-daughter, the accused told her not to make any shout and said that he was going away along with the head of his grand-daughter. She found blood marks on the verandah. She opened the door from backside and when she found that the accused was attempting to go away with the head of the deceased, she closed the door and called the persons playing cards at a close distance. All of them rushed to the spot, caught hold of the accused and tied him by means of a rope. On being asked by those persons, the accused confessed before them that he had cut the head of the deceased and kept that head apart and the rest part of her body inside a gunny bag. He had collected her blood and stored in a steel utensil in which she was taking rice. She also found an axe inside that room. Thereafter, she reported the matter to the police. In cross-examination, she also admitted that blood stains were lying on the verandah. She brought the Chana from the shop which was situated at a little distance from their house. The shop was adjoining to their outer verandah. She further admitted that she did not pull on well with the accused from the date of occurrence. Prior to the occurrence, they were pulling on well with each other and after the occurrence, she did not want to look at his face. She admitted that there was a meeting in their locality consisting of about 10 nearby villages wherein it was decided that if the accused 4 returned home, they would be ousted from their locality. Except the above, nothing has been elicited to demolish her evidence. P.W.9 is the informant and a co-villager of the accused. At the time of occurrence, he was playing cards along with others under the Mahua tree situated at the back side of the house of the accused. He specifically deposed that the occurrence took place at about 3.00 to 3:30 pm. While they were playing cards, p.w.8 came to them by saying “DAUDI ATA DHEKMA, BUDHA BERONIKA KE KATI DEICHI KI KANA”. He along with the others immediately rushed to the house of the accused and found that the house was closed from outside and p.w.8 closed the door in order to prevent escape of the accused from her house. After opening the door, they found blood stains on the verandah and the accused was present there. They tied the accused on seeing the blood stains and kept him inside one of his rooms. They found the head of the deceased in one room. The other portion of her body was tied in a gunny bag and the blood of the deceased was collected and stored in a steel utensil. On being asked, the accused admitted to have cut the head of the deceased by means of axe. On further query, the accused said that he did so to mix the blood of the deceased with the paddy. In cross-examination, he admitted that they started playing cards from about 3 pm and if anybody raised alarm from inside the house of the accused, it would be audible to the place of their playing cards, but on that date, they had not heard any sound. He also admitted that on earlier occasion, the accused was found slightly mad and on account of his madness, the accused was being kept in his house all along closing him inside the room. P.W.10 is also a post occurrence witness and witness to the inquest (Ext.2). He corroborated the statement of p.w.9. In cross-examination, he stated that the accused is Christian by religion and he had never heard any Christian family sowing paddy mixed with blood. He also admitted that such type of axe is available in each and every house of the village. Except the blood stains, there was no other special mark of identification on the seized axe. He further stated that he had seen the accused on earlier occasion utilizing the same axe. P.W.11 is the medical officer, who treated the accused and found one swelling injury of size 1 and 1/2X1/4X1/4 inches at upper lip, lacerated injury of size 1X1/4 inches on left leg and lacerated injury of size 1x1/2x1/4 inches present over the left leg lateral malleolus. All the injuries were simple in nature. In cross-examination, he has also admitted that such injuries may be possible due to assault by lathi. P.W.12 is the I.O, who registered the FIR, investigated into the matter, sent the dead body for post mortem, examined the witnesses, seized the wearing apparels of both the accused as well as deceased and ultimately filed charge-sheet against the accused under Section 302 I.P.C. In his cross-examination, nothing substantial has been elicited except that the defence has confronted him with some statements of the witnesses. P.W.13 is the doctor, who conducted the postmortem examination on the dead body of the deceased and found the following injuries: 5 “(i) there was chop wound present at cervical vertebra C2 and C3 level encircling the whole neck including cervical vertebra, cervical muscle, neck vessel, nerve, spinal cord. The head was de-capitated at cervical level 2 and 3. (ii) incised would of size 7 x 1cm x bone deep present 0.5 cm below the aforesaid injury; and (iii) lacerated wound of size 3 cm x 1 cm x muscle deep present in chin. He opined that all the above injuries were ante mortem in nature and the external injury no.(i) and its corresponding internal injuries would have been caused by sharp cutting moderate to heavy weapon. The cause of death was due to decapitation (separation). The time since death was within 24 hours of his examination and the death was homicidal in nature. He has stated that the weapon of offence, i.e., axe was produced before him and injury nos.(i) and (ii) could be possible by the said axe. In his cross-examination, he has admitted that the present injuries were caused purely from the back side. If one is assaulted from his back side, it is not expected of a person to raise alarm because such assault would cause him unconscious immediately. If the deceased knew that she was going to be assaulted then she should have raised alarm prior to assault. Post mortem report has been proved by this witness and marked as Ext.13. 9. The chemical examination report (Ext.12) reveals that the stained earth, stained cotton, the steel utensil, the gunny bag, the sample blood of the deceased and the frock of the deceased had contained ‘AB’ group blood. The seized lungi which was put on by the accused also found stained with ‘AB’ group of human blood. 10. The learned Additional Sessions Judge, who has tried the case, has come to a finding that the accused was very much present at the time of occurrence and basing upon the evidence of P.Ws.2, 3, 8, 9, 10 and the doctor (p.w.13) and the report of the chemical examiner, has passed the sentence of capital punishment. 11. The entire case is based upon circumstantial evidence. As per the decision of the apex Court in the case of Sharad Birdhichand Sarda V. State of Maharashtra; AIR 1984 SC 1622, the following conditions must be fulfilled before a case against an accused based on circumstantial evidence is accepted: “ (i) 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. (ii) 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. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved, and 6 (v) 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.” 12. The above ratio has been followed by this Court recently in DSREF Nos.1 and 2 of 2010. By a plain reading of the above decisions, it is crystal clear that the following essential conditions must be satisfied. The various links in the chain of evidence led by the prosecution have been satisfactorily proved. The said suggestion points to the guilt of the accused with reasonable definiteness. The suggestion is in proximity to the time and situation. On this touchstone, this Court examines the evidence. In the instant case, P.W.8 is the wife of the accused and grand mother of the deceased. P.W.4 is the son of the accused and maternal uncle of the deceased. Other witnesses i.e. P.Ws.2, 3, 4, 8, 9 and 10 are co-villagers of the accused and all are post occurrence witnesses. Admittedly, there is no eye witness to the occurrence. All the above witnesses have deposed that the accused was present inside his house at the time of occurrence. It has been brought out from the mouth of P.W.8 that when she left the place for purchasing chana, the deceased was there inside the room and taking rice in a steel utensil in which her blood was collected and stored. After purchasing chana, when she returned, she found that the door of the house was closed from inside for which she gave a call for her grand daughter. As there was no response, she entered the house from the back side. She closed the door from outside and called the persons, who were playing cards in a nearby place. All of them have told that the accused confessed before them that he had killed his grand daughter by means of an axe by separating her head from body. In cross-examination, P.W.8 further clarified that any other person can come to their house from backside by jumping over the small heap of bricks, but cannot go back. P.Ws.2, 3, 9 and 10 also corroborated the statement of P.W.8 with regard to above statement. Further, these witnesses have stated that the blood stained axe was very much there inside the room and they also tied the accused by means of a rope. All the witnesses stated that the accused made an extra judicial confession before them. P.W.4, who is the son of the accused, also corroborated the above statement. He specifically stated that he returned home from Sambalpur at about 5:30 pm after hearing about the occurrence from his sister over telephone and found that his father was tied by means of a rope. The trial court has relied upon the extra judicial confession but it is admitted by the prosecution witnesses that the accused was immediately roughed up by the witnesses. Thereafter, the accused made a statement before them about his implication in the crime. Some of the witnesses admitted that he was assaulted. P.W.11, the doctor, who examined the accused found three injuries and he has stated that such injuries could be possible due to assault by lathi. P.W.10 also admitted about the assault. The I.O. (P.W.12) also specifically stated that when he arrived at the spot, he found that the accused was tied by a plastic rope and was manhandled. In view of the above evidence, the extra judicial confession was not voluntary but the same has been obtained under coercion. Therefore, this Court is not inclined to accept the extra judicial confession made by the accused. 13. The evidence of P.W.8 makes it very clear that the deceased was last seen together with the accused in their house when she left the place for purchasing chana before deceased’s death. There was a short time gap when she reached her house and searched for the deceased. She immediately saw the accused coming with the severed 7 head of the deceased. Blood stains were found on the inner verandah. Thereafter, she immediately called the other witnesses who were playing cards in a nearby place. They reached the spot, opened the door and found that the separated head of the deceased was lying apart. The other portion of her body was kept inside a gunny bag and her blood was collected and stored in a steel utensil. P.W.8 specifically stated that in that steel utensil, the deceased was taking rice while she went outside to purchase chana. There are some minor contradictions, which are not material. All the witnesses corroborated the statement of P.W.8 and there is no reason to discard the evidence of P.W.8, who is none other than the wife of the accused. Admittedly, at the time of occurrence, the