PRADIP MOHANTY ,J & S.K.MISHRA, J. DSREF NO.2 OF 2010 & JCRLA NO.14 OF 2010 (Decided on 05.10.2010) STATE OF ORISSA ………. Complainant. .Vrs. ARDHU CHENDREYA ……….. Accused. CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) – SEC. 354 (3),366. For Complainant - Mr. Saubhagya Ketan Nayak, Addl.Govt. Advocate. For Accused - Mr. Janmejaya Katikia, Advocate. S.K.MISHRA, J. Human depravity has no limits. But howsoever gruesome the offence may be, every individual has a right 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. 2 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 3 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 upto 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 4 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 5 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 6 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 7 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