Duryodhan Rout vs State Of Orissa

2. The case of the prosecution is that on 11th September, 2004, at about 3 p.m. accused Duryodhan Rout, on the pretext that the deceased, Subhasini, a minor girl aged about 10 years would talk over phone with his brother, Bamodev Bhoi took her on a bicycle. When the evening set in, the accused alone returned to the village and on enquiry about Subhasini, by Mulia Bhoi (PW-5), father of the deceased, he told that she had gone with a woman of Ranibandha to her house. On the next day, as she did not return Mulia Boi (PW-5) again questioned the accused regarding the where about of the deceased. The accused confessed in presence of Rabi Biswal (PW-3), Dasarathi Bhoi (PW-4) and Subashini Bhoi that he killed the deceased by pressing her neck. With the help of these three witnesses, Mulia Bhoi (PW-

4. In order to establish its case, the prosecution examined 8 witnesses. The accused examined himself as DW-1 besides examined DW-2, his father to prove his stand. After assessing the evidence on record, the Trial Court found the accused guilty for the offence under Sections 376(f)/302/201 IPC convicted him thereunder and sentenced him to death for the offence punishable under Section 302 IPC. The Session Judge also sentenced him to undergo RI for 10 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 376(f)IPC and RI for one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 201 IPC. It was further ordered that in default of payment of fine, the convict would suffer imprisonment for one year for the offence punishable under Section 376(f) IPC and three months for the offence punishable under Section 201 IPC and the substantive sentences would run consecutively.

5. The High Court, as noticed above in Reference, converted the capital sentenced to life imprisonment but ordered that rest of the sentence remain unaltered.

6. Admittedly, there was no eye-witness to the occurrence, the order of conviction was based on the circumstantial evidence only. From the evidence of Paramla Nahak (PW-1) and Pechi @ Bilas Bhoi (PW-2), it transpires that on the date occurrence at about 4 p.m. while they were making chips by braking boulders by the side of road, they saw the accused carrying the deceased on a cycle and at about 5 p.m. they saw him returning alone. Mulia Bhoi (PW-5) and Kalpana Bhoi (PW-6), the father and the mother of the deceased respectively, stated that the accused took the deceased on a cycle on the pretext that the later would talk to her brother, working at Bargarh, over phone from the house of Bijaya Bhoi of village Anandpur. While the accused was in Police custody, he confessed his guilt which was recorded under Ext.7. The Ext.7 reflects that on 11th September, 2004 afternoon he took the deceased near Arakhkuda Salabani Jungle, undraped her and then committed rape on her. When she cried. He strangulated her to death and left the dead body covering it with branches of trees. On the basis of statement of the accused the I.O recovered the dead body and the Chadi (underwear) of the deceased lying nearby, from Arakhkuda Salabani Jungle. The statement of the accused made before the Police Officer which distinctly relates to the facts of recovery is admissible under the law.

27. Section 31 of Cr.P.C. relates to sentence in cases of conviction of several offences at one trial. Proviso to Sub Section (2) to Section 31 lays down the embargo whether the aggregate punishment of prisoner is for a period of longer than 14 years. In view of the fact that life imprisonment means imprisonment for full and complete span of life, the question of consecutive sentences in case of conviction for several offences at one trial does not arise. Therefore, in case a person is sentenced of conviction of several offences, including one that of life imprisonment, the proviso to Section 31(2) shall come into play and no consecutive sentence can be imposed.

11. In view of the proviso appended to Section 31 of the Criminal Procedure Code, we are of the opinion that the High Court committed a manifest error in sentencing the appellant for 20 years’ rigorous imprisonment. The maximum sentence imposable being 14 years and having regard to the fact that the appellant is in custody for more than 12 years. Now, we are of the opinion that interest of justice would be subserved if the appellant is directed to be sentenced to the period already undergone.”

32. For the reasons stated above, while we are not inclined to interfere with the order of conviction and the sentence, considering the fact that the accused has been awarded life imprisonment for the offence under Section 302, we direct that all the sentences imposed under Indian Penal Code are to run concurrently. The judgment passed by the Session Judge as affirmed by the High Court stands modified to the extent above. The appeals are allowed in part with the aforesaid observations.

Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced the reportable judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Dipak Misra.

The appeals are allowed in terms of the signed reportable judgment.

[Signed reportable judgment is placed on the file]