Orissa High Court

- vs - on 20 June, 2024

Author:
S.K. Sahoo

Bench:
S.K. Sahoo

Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

IN THE HIGH COURT OF ORISSA, CUTTACK

DSREF No.01 of 2022

From judgment and order dated 29.11.2022 passed by the
Adhoc Addl. Sessions Judge, F.T.S.C., POCSO, Jagatsinghpur in
Special G.R. Case No.30 of 2014.
---------------------

State of Odisha

-Versus-

1. Sk. Asif Alli @ Md. Asif Iqbal
2. Sk. Akil Alli ....... Condemned Prisoners/
Accused Persons

For State of Odisha: - Mr. Bibhu Prasad Tripathy
Addl. Govt. Advocate

For Condemned
Prisoners/Accused: - Sk. Zafarulla
Advocate

CRLA No.120 of 2023

Sk. Asif Alli @
Md. Asif Iqbal ....... Appellant

-Versus-

State of Odisha ....... Respondent

For Appellant: - Sk. Zafarulla
Advocate

For Respondent: - Mr. Bibhu Prasad Tripathy
Addl. Govt. Advocate
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

CRLA No.121 of 2023

Sk. Akil Alli ....... Appellant

-Versus-

State of Odisha ....... Respondent

For Appellant: - Sk. Zafarulla
Advocate

For Respondent: - Mr. Bibhu Prasad Tripathy
Addl. Govt. Advocate
---------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE R.K. PATTANAIK
---------------------------------------------------------------------------------------------------
Date of Hearing: 14.05.2024 Date of Judgment: 20.06.2024
---------------------------------------------------------------------------------------------------

S.K. Sahoo, J. The reference under
section 366
of the Code of

Criminal Procedure, 1973 has been submitted to this Court by

the learned Adhoc Addl. Sessions Judge, F.T.S.C., POCSO,

Jagatsinghpur (hereinafter 'the trial Court') in Special G.R. Case

No.30 of 2014 for confirmation of death sentence imposed on Sk.

Asif Alli @ Md. Asif Iqbal and Sk. Akil Alli (hereinafter 'the

appellants') vide judgment and order dated 29.11.2022 and

accordingly, DSREF No.01 of 2022 has been instituted. CRLA

Page 2 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

No.120 of 2023 has been filed by appellant Sk. Asif Alli @ Md.

Asif Iqbal and CRLA No.121 of 2023 has been filed by appellant

Sk. Akil Alli challenging the self-same judgment and order of

conviction passed by the learned trial Court.

The appellants along with Sk. Abid Alli faced trial in

the trial Court for commission of offences punishable under

sections 302
/376-A/376-D read with
section 120-B
of the Indian

Penal Code (hereinafter 'the
I.P.C
.') and
section 6
of the

Protection of Children from Sexual Offences Act, 2012

(hereinafter '
POCSO Act
') on the accusation that on 21.08.2014

in between 2.00 p.m. to 11.00 p.m. in the house of Sk.

Khairuddin at village Manu Mohalla under Tirtol police station in

Jagatsinghpur district, they made criminal conspiracy and

committed gang rape and aggravated penetrative sexual assault

on the minor victim girl (hereinafter 'the deceased') and inflicted

injuries which caused death of the deceased.

The learned trial Court vide impugned judgment and

order dated 29.11.2022 found the appellants guilty for the

offences punishable under
sections 302
/
376-A
/
376-D
of the

I.P.C. and
section 6
of the POCSO Act and awarded them death

sentence for the offence under
section 302
of the I.P.C. so also

sentenced each of them to undergo imprisonment for life for the

Page 3 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

offence under
section 376-A
of the I.P.C., which shall mean

imprisonment for the remainder of natural life, R.I. for a period

of twenty years and to pay a fine of Rs.50,000/- (rupees fifty

thousand), in default, to undergo R.I. for a further period of one

year for the offence under
section 376-D
of the I.P.C., however,

no separate sentence was awarded for the offence under
section
of the POCSO Act in view of the
section 42
of the said Act. The

substantive sentences awarded to the appellants were directed

to run concurrently.

The accused Sk. Abid Alli, who faced trial along with

the appellants, was found not guilty for the offences punishable

under
sections 302
/
376-A
/
376-D
/
120-B
of the I.P.C. and
section
of the POCSO Act and accordingly, he was acquitted of all the

charges.

Since both the DSREF and the criminal appeals arise

out of the same judgment, with the consent of learned counsel

for both the parties, those were heard analogously and are

disposed of by this common judgment.

Prosecution Case:

2. The prosecution case, as per the first information

report (hereinafter F.I.R.) (Ext.3) lodged by P.W.7 Tara Bibi, is

that on 21.08.2014 at about 2.00 p.m., the deceased along with

Page 4 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

her cousin brother Sk. Farhan Alli (P.W.17) had been to a nearby

shop of their house to purchase chocolates. As there was delay

of the deceased in returning home, at about 3.00 p.m., P.W.7

and others searched for the deceased but failed to trace her out.

Some co-villagers found the deceased on the Taza of one Sk.

Khairuddin in an unconscious state and immediately they shifted

her to Tendakuda Primary Health Centre, but the doctor advised

them to take the deceased to S.C.B. Medical College and

Hospital, Cuttack (hereafter 'S.C.B.M.C.H, Cuttack'). On being

asked, the doctor told them that somebody had throttled her

neck after committing rape on her. While being shifted to

S.C.B.M.C.H, Cuttack, on the way the deceased died and

therefore, P.W.7 and others returned back to the village carrying

the dead body of the deceased. On enquiry, P.W.17 informed

that the appellants gagged the mouth of the deceased and took

her away by lifting her in arms while they were returning home

after purchasing chocolates. P.W.7 suspected that both the

appellants after committing rape on the deceased had

strangulated her to death.

On receipt of the written report from P.W.7 which

was scribed by P.W.9 Siraj Ul Haque, Sri S.K. Panda, A.S.I. of

Krushnanandapur outpost made Station Diary Entry No.300

Page 5 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

dated 21.08.14 and sent the report to the Inspector in-charge of

Tirtol police station for registration and accordingly, the

Inspector in-charge of Tirtol police station, namely, Dayanidhi

Nayak (P.W.27) registered Tirtol P.S. Case No.183 dated

21.08.2014 under
sections 376-A
/
376(2)(f)(g)
of the I.P.C. and

section 6
of the POCSO Act against the appellants at 11.45 p.m.

and he himself took up the investigation of the case.

During the course of investigation, the I.O. (P.W.27)

visited the spot during the intervening night of 21.08.2014 and

22.08.2014, examined the witnesses and recorded their

statements, sent requisition to the S.P., Jagatsinghpur for

deputation of scientific team to the spot to assist him during

investigation and for collection of material evidence. The local

people apprehended the appellant Sk. Akil Alli and on the same

night at about 3.30 a.m., the I.O. seized the wearing apparels of

the appellant Sk. Akil Alli in presence of the witnesses as per

seizure list Ext.6 and at about 3.45 a.m., he arrested the

appellant Sk. Akil Alli and sent him to Medical Officer (P.W.28),

C.H.C., Manijang for medical examination through escort party.

On 22.08.2014 in the morning at about 6.50 a.m.,

the I.O. visited the place of occurrence and prepared the spot

map vide Ext.20 and during spot visit, he found a quilt, inner

Page 6 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

garments, towel, plastic chappal, cigarette pups, glass bottles

and Aska 40 liquor bottles, thumps up plastic bottles, a pair of

golden ear rings at the spot. On the same day at about 7.20

a.m., he conducted inquest over the dead body of the deceased

in presence of her family members and other witnesses and

prepared inquest report (Ext.1). At about 8.20 a.m., he sent the

dead body of the deceased to C.D.M.O., D.H.H., Jagatsinghpur

through escort party for post mortem examination and opinion.

On 22.08.2014 at about 1.30 p.m., the scientific team of

S.F.S.L., Rasulgarh and staff of D.F.S.L., Jagatsinghpur arrived

at the spot and inspected the spot. The I.O. examined the

seizure witnesses and Sri Chunuram Murmu, S.O., S.F.S.L.,

Rasulgarh, Bhubaneswar and recorded their statements. During

inspection of the spot by the Scientific Officer, three chance

finger prints were detected from the bottles (Aska 40 bottles).

The chance finger prints were developed with white powder and

marked as Ext.A, B and Ext.B/1. At about 5.30 p.m., the I.O.

(P.W.27) seized two sealed vials containing the sample pubic

hair and sample semen of the appellant Sk. Akil Alli on

production of escorting constable B.B. Singh collected during the

medical examination of the appellant in presence of the

witnesses as per seizure list (Ext.7). On the same day at about

Page 7 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

7.30 p.m., the I.O. forwarded the appellant Sk. Akil Alli to the

Court.

On 23.08.2014, the I.O. made prayer before the

Court for recording the statement of the informant (P.W.7) under

section 164
of Cr.P.C. and on 25.08.2014, as per the direction of

S.P., Jagatsinghpur, a special team was formed to apprehend the

accused persons and raid was conducted at different places. On

04.09.2014, the I.O. received the post mortem report from the

A.D.M.O., D.H.H., Jagatsinghpur.

On 05.09.2014 at about 3.00 p.m., the I.O.

apprehended the accused Sk. Abid Alli and appellant Sk. Asif Alli

at Bhubaneswar and seized one Nokia mobile phone during the

personal search of appellant Sk. Asif Alli in presence of the

witnesses. On the same day, the I.O. also seized one Honda

Activa scooty bearing regd. no. OD 21 B 0693 and one Samsung

Mobile handset during the personal search of accused Sk. Abid

Alli and then, the I.O. brought both the accused Sk. Abid Alli and

the appellant Sk. Asif Alli to Tirtol police station and seized the

wearing apparels of the appellant Sk. Asif Alli in presence of the

witnesses and prepared the seizure list marked as Ext.9 and sent

the accused Sk. Abid Alli and appellant Sk. Asif Alli to M.O.,

C.H.C., Manijanga for medical examination and opinion. The I.O.

Page 8 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

received the spot visit report along with the photographs of the

spot from the Scientific Officer, S.F.S.L. through post. On

06.09.2014, the I.O. received the medical examination report of

the accused Sk. Abid Alli and appellant Sk. Asif Alli and at about

11.45 a.m., he arrested both of them and seized the biological

exhibits on production of the escort officer, S.I. Govinda Majhi in

presence of witnesses and prepared the seizure list Ext.11. On

the same day at about 6.00 p.m., he forwarded the accused Sk.

Abid Alli and the appellant Sk. Asif Alli to the Court.

On 09.09.2014, the I.O. seized the school admission

register of Kalinga Public School, Tala Barei, Krishnanandapur on

production by P.W.14 Kalpana Beura, the Principal of the School

in presence of witnesses and prepared the seizure list (Ext.13),

in which the date of birth of the deceased was mentioned as

16.03.2008 and left the same in zima of P.W.14 by executing

zimanama (Ext.14). On the same day at about 2.00 p.m., the

I.O. seized the original birth certificate of the deceased on

production by uncle of the deceased, namely, Ayub Ali @ Tuku

and prepared the seizure list (Ext.10) and left the same in his

zima executing zimanama (Ext.21). On 20.09.2014, the I.O.

made prayer before the Court to send the seized exhibits to

S.F.S.L., Rasulgarh for chemical examination and opinion vide

Page 9 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

Ext.24. On 25.09.2014, he also made prayer to the Court for

passing necessary order for collection of finger print of the

appellant Sk. Akil Alli from Sub-Jail, Jagatsinghpur and on the

very day, as per the direction of the Court, the finger print was

collected. The Scientific Officer, D.F.S.L. finger print and team

also collected finger prints of the appellant Sk. Asif Alli and

accused Sk. Abid Alli from the Sub-Jail, Jagatsinghpur after

obtaining the order of the Court. The I.O. made requisition to the

S.P., Jagatsinghpur to send the chance finger prints collected

from Aska 40 bottles, which were transferred to a C.D. along

with specimen ten digit finger print slips of the accused Sk. Abid

Alli and the appellants to the Director, State Finger Print Bureau,

Rasulgarh, Bhubaneswar for necessary comparison and opinion.

On 1.20 p.m., the I.O. seized the O.P.D. ticket of the deceased

on production by P.W.21 in presence of the witnesses and

prepared the seizure list Ext.17.

On completion of investigation, P.W.27 submitted

charge sheet dated 21.10.2014 under sections 376-A/376-

D/120-B of the
I.P.C
. and
section 6
of the POCSO Act against the

accused Sk. Abid Alli, Sk. Asif Alli @ Md. Asif Iqbal (appellant in

CRLA No.120 of 2023) and Sk. Akil Alli (appellant in CRLA

No.121 of 2023) and one Sk. Abdul Karim Ali showing him as

Page 10 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

absconder before the learned S.D.J.M., Jagatsinghpur, which was

forwarded to the learned Sessions Judge -cum- Special Judge,

Jagatsinghpur on 22.08.2014 and the learned Special Judge,

Jagatsinghpur took cognizance of offences under sections 376-

A/376-D/120-B of the
I.P.C
. and
section 6
of the POCSO Act.

Framing of Charge:

3. The learned trial Court framed charges as aforesaid

against the appellants so also the accused Sk. Abid Alli on

17.11.2014 and since all of them refuted the charges, pleaded

not guilty and claimed to be tried, the sessions trial procedure

was resorted to prosecute them and establish their guilt.

Prosecution Witnesses, Exhibits & Material Objects:

4. During the course of trial, in order to prove its case,

the prosecution has examined as many as twenty nine

witnesses.

P.W.1 Sk. Wamik Alli stated that on the fateful day

when he along with others was present in the field of

Akhandalmani, at about 6 p.m. he found the appellant Sk. Asif

Alli and accused Sk. Abid Alli and Sk. Abdul Karim Alli going

towards village Kolta in a red colour Activa scooty. He further

stated to have learnt about the missing of the deceased for

which he along with others started for searching the deceased.

Page 11 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

Upon hearing a hulla, he came to the house of one Sk.

Khairuddin, where P.W.2 Sk. Sikandar Basa rescued the

deceased in a naked condition with injury on the neck and near

the ear drum, after which the deceased was brought to her

house and then shifted to the medical.

P.W.2 Sk. Sikandar Basa stated that on the date of

occurrence, he heard an announcement from the Masjid about

the missing of the deceased and accordingly, started searching

for her along with others. He further stated that during such

search, P.W.3 Sk. Mustakin Alli found the deceased lying on the

Taza of the house of one Sk. Khairuddin, who called others in a

loud voice to the spot. Upon reaching there, he found the

deceased was lying naked in an unconscious state. He also

stated to have noticed nail marks on the belly, back and knee

and blood patches on the thigh of the deceased. He further

stated that he brought the deceased from that place and handed

her over to P.W.1 who took the child to her house. He also

stated that he along with others enquired from P.W.17, the

brother of the deceased, who stated that while he and the

deceased were returning after purchasing chocolates, the

appellant Sk. Akil Alli gagged the mouth of the deceased and

appellant Sk. Asif Alli lifted and took her.

Page 12 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

P.W.3 Sk. Mustakim Alli stated that after coming to

know that the deceased was found missing, he enquired from

P.W.17 about the deceased, who disclosed that when he and the

deceased were returning after purchasing chocolates, the

appellant Sk. Akil Alli gagged the mouth of the deceased and Sk.

Asif Alli lifted and took her away. He further stated that upon

seeing the deceased on the Taza of the underground house of

Sk. Khairuddin, he alarmed after which P.W.2 rescued the

deceased from the Taza in a naked condition and then the

deceased was first shifted to her house and then to Tendakuda

Hospital.

P.W.4 Md. Mustakim Naimee stated that while he

was playing in Akhandalmani field, he came to know about the

missing of the deceased after which he along with P.Ws.1, 2 and

3 searched for her. After a while they found the deceased lying

on the Taza of the house of one Sk. Khairuddin. He further

stated that after rescuing the deceased, they took her to her

house and subsequently, he along with P.W.2 shifted the

deceased to Tendakuda medical. He is also a witness to the

inquest over the dead body of the deceased.

P.W.5 Musaraf Alli stated that on the date of

occurrence, when he was returning from Masjid after reading

Page 13 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

Namaz at about 02.00 to 02.30 p.m., he saw the appellants Sk.

Akil Alli and Sk. Asif Alli were standing near the house of Sk.

Khairuddin and they were trembling, worried and looking

nervous.

P.W.6 Sk. Mashkur Alli stated that while he was

returning to his village on the date of occurrence, he saw the

appellants, accused Sk. Abid Alli and Sk. Abdul Karim Alli were

taking liquor on the verandah of one Manu Mian at about 12.30

p.m. and talking with each other. He further stated that the

police came and seized certain items from the spot and prepared

the seizure list vide Ext.2. He identified the material objects

(M.Os.) in the Court.

P.W.7 Tara Bibi is the informant of the case and she

was the aunt of the deceased. She supported the prosecution

case and stated that the deceased had been to purchase

chocolate with P.W.17 but did not return home. She further

stated about the search to trace the deceased and the body of

deceased was found from the Taza of the house of Khairuddin in

naked condition with injuries on different parts of her body. She

further stated that P.W.17 disclosed before them about the

appellants taking away the deceased by lifting her while they

were returning from the shop after purchasing chocolates. She is

Page 14 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

a witness to the preparation of the inquest report vide Ext.1. She

is also a witness to the seizure of the wearing apparels of the

deceased by the police vide Ext.4. She identified the garments of

the deceased which were marked as M.Os. V, X and XIII in the

Court.

P.W.8 Diptiranjan Ray was working as a constable in

Tirtol police station and he is a witness to the seizure of the

wearing apparels of the appellant Sk. Akil Alli as per seizure list

Ext.6. He is also a witness to the seizure of the biological exhibits

of the appellant Sk. Akil Alli and the deceased as per seizure lists

Exts.7 and 8 respectively. He is also a witness to the seizure of

the wearing apparels of the appellants Sk. Asif Alli and Sk. Abid

Alli as per seizure lists Exts.9 and 10 respectively.

P.W.9 Siraj Ul Haque is the scribe of the F.I.R. He is

also a witness to the seizure of the blood-stained wearing

apparels of the deceased and school certificate of the deceased

vide seizure lists Exts.4 and 10 respectively.

P.W.10 Sk. Kalim Ulla is a witness to the seizure of

the blood-stained wearing apparels of the deceased and school

certificate of the deceased as per seizure lists Exts.4 and 10

respectively. He is also a witness to the preparation of inquest

report vide Ext.1.

Page 15 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

P.W.11 Govinda Majhi was the Sub-Inspector of

Police, Tirtol Police Station, who is a witness to the seizure of the

wearing apparels of the appellant Sk. Akil Alli as per seizure list

Ext.6. He is also a witness to the seizure of the biological exhibits

of the appellant Sk. Akil Alli as per seizure list Ext.7 and also a

witness to the seizure of sealed vials containing the biological

exhibits of all the appellants as per seizure list Ext.11.

P.W.12 Lachaman Sethi was posted as the S.I. of

Police, Tirtol police station. He is a witness to the seizure of two

parcel sealed packets as per seizure list Ext.8. He is also a

witness to the seizure of Honda Activa scooty as well as one

Samsung mobile phone on production by accused Sk. Abid Alli as

per seizure list Ext.12. He is also a witness to the seizure of

Nokia mobile phone on production by appellant Sk. Asif Alli.

P.W.13 Pabitra Kumar Dalai was working as the Asst.

Teacher at Kalinga Public School, Krishnanandapur and he is a

witness to the seizure of school admission register of the

deceased as per seizure list Ext.13.

P.W.14 Kalpana Beura was working as the Principal

of Kalinga Public School, Krishnanandapur. She produced the

school admission register (Ext.15) of the deceased before the

police which was seized as per seizure list Ext.13. After

Page 16 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

verification of the register, the police left the same in her zima as

per zimanama Ext.14.

P.W.15 Johra Bibi stated that the deceased was her

niece. She further stated that when she enquired from P.W.17

the whereabouts of the deceased, he stated that while he and

the deceased were returning after purchasing chocolates, the

appellant Sk. Akil Alli gagged the mouth of the deceased and the

appellant Sk. Asif Alli took her away towards the house of one

Sk. Khairuddin. She is also a witness to the preparation of the

inquest report vide Ext.1.

P.W.16 Bibhuti Bhusan Singh was the police

constable who is a witness to the seizure of one Nokia mobile

phone from the possession of appellant Sk. Asif Alli as per the

seizure list vide Ext.13. He is also a witness to the seizure of one

Activa scooty from the possession of appellant Sk. Abid Alli as

per seizure list Ext.12.

P.W.17 Sk. Farhan Alli is the cousin brother of the

deceased, who stated that on the date of occurrence while he

and his deceased sister were returning after purchasing

chocolates, the appellant Sk. Akil Alli gagged the mouth of the

deceased and the appellant Sk. Asif Alli lifted her and went away.

He stated that the accused Sk. Abid Alli and Sk. Abdul Karim Alli

Page 17 of 106
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Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 20-Jun-2024 11:05:59

were with them. He further stated to have disclosed the

aforesaid fact to his tuition Miss (P.W.26), P.W.7, P.W.15 and to

the police.

P.W.18 Prasanna Kumar Sahoo was working as a

police constable who is a witness to the seizure of the sealed

vials containing the biological exhibits of the appellants Sk. Akil

Alli and Sk. Asif Alli as per seizure list Ext.11.

P.W.19 Sk. Seraj Alli is a shopkeeper, who is also a

co-villager of the deceased. He stated that on the date of

occurrence, the deceased and P.W.17 came to his shop to

purchase chocolates at about 02.00 to 02.30 p.m. and after

taking chocolates, they went away. He further stated that on

that evening, he came to know that the deceased had been

raped and killed.

P.W.20 Sricharan Rout was working as the Assistant

Sub-Inspector of Police in Paradeep Lock police station. He is a

witness to the seizure of the wearing apparels of the appellant

Sk. Asif Alli and accused Sk. Abid Alli as per seizure lists Exts.9

and 10 respectively.

P.W.21 Dr. Amrit Kumar Behera was working as the

Medical Officer, P.H.C., New Tendakura. He stated that on the

date of occurrence, the deceased was brought by some people to

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the P.H.C. and she was in a senseless condition. He stated to

have found some nail marks on the neck of the deceased and

some marks on the back of the deceased. He also found redness

with blood stain in the pubic area of the private part of the

deceased. He referred her to the S.C.B.M.C.H., Cuttack for

further treatment.

P.W.22 Kishore Chandra Mohanty was working as the

attendant in the P.H.C., New Tendakura. He is a witness to the

seizure of the O.P.D. ticket vide seizure list Ext.17.

P.W.23 Sk. Wahid Alli is the uncle of the deceased.

He stated to have seen the appellants along with other accused

persons sitting on the verandah of one Manu Mian and taking

liquor while talking with each other. When he learnt about the

missing of the deceased, he along with others made

announcement from the Masjid. He further stated that when the

deceased was rescued, she was found lying naked with injuries

on her person.

P.W.24 Mir Zaural Haque is a witness to the seizure

of one plastic jari containing glass, burnt cigarette and some

other articles as per seizure list Ext.2.

P.W.25 Dr. Soumya Ranjan Nayak was the Assistant

Professor, F.M.T., S.C.B.M.H, Cuttack who along with Dr.

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Gopabandhu Patra, conducted post mortem examination over

the dead body of the deceased on police requisition. He proved

his report vide Ext.19.

P.W.26 Alakananda Sethy was the tuition Miss of the

deceased, who stated that on the fateful day, though she had

gone to give tuition, the deceased did not turn up for the same

for which she sent another child to call the deceased but the said

child could not find her. She further mentioned that P.W.17, the

brother of the deceased came for the tuition that day. She was

declared hostile by the prosecution.

P.W.27 Dayanidhi Naik was working as the I.I.C. of

Tirtol police station who is the Investigating Officer of this case.

P.W.28 Dr. Nigamananda Tripathy was posted as

Medical Officer, Manijanga C.H.C., who on police requisition,

medically examined the appellant Sk. Akil Alli and found him

capable of having sexual intercourse. He proved his report vide

Ext.27.

P.W.29 Dr. Debasis Mahali was working as the

Medical Officer, Manijanga C.H.C., who on police requisition,

medically examined the appellant Sk. Asif Alli and found him

capable of having sexual intercourse. He proved his report vide

Ext.28.

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The prosecution exhibited twenty nine documents.

Ext.1 is the inquest report, Ext.2 is the seizure list in respect of

one quilt, one panty, one napkin, dress of the deceased, one

glass, one thumbs up bottle and other articles, Ext.3 is the

F.I.R., Ext.4 is the seizure list in respect of wearing apparels of

the deceased, Ext.5 is the 164
Cr.P.C
. statement of the

informant (P.W.7), Ext.6 is the seizure list in respect of wearing

apparels of the appellant Sk. Akil Alli, Ext.7 is the seizure list in

respect of biological exhibits of the appellant Sk. Akil Alli, Ext.8 is

the seizure list in respect of the nail clippings and pubic hair and

biological exhibits of the deceased along with the command

certificate of the escort constable, Ext.9 is the seizure list in

respect of wearing apparels of the appellant Sk. Asif Alli, Ext.10

is the seizure list in respect of wearing apparels of the accused

Sk. Abid Alli, Ext.11 is the seizure list in respect of biological

exhibits of the accused Sk. Abid Alli and the appellants in sealed

vials, Ext.12 is the seizure list in respect of one maroon colour

Honda Active bearing regd. no.OD 21B 0693 and one Samsung

mobile phone on production by the accused Sk. Abid Alli, Ext.13

is the seizure list in respect of the school admission register,

Ext.14 is the zimanama, Ext.15 is the school admission register,

Ext.17 is the seizure list in respect of the outdoor ticket bearing

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OPD No.4643-D dated 21.08.2014, Ext.18 is the O.P.D. ticket,

Ext.19 is the P.M. report, Ext.20 is the spot map, Ext.21 is the

zimanama, Ext.22 is the original birth certificate, Ext.23 is the

payer made by P.W.27 to send the seized exhibits to S.F.S.L.,

Bhubaneswar, Ext.24 is the forwarding report, Ext.25 is the C.E.

report, Ext.26 is the opinion report of the Director of Finger

Print, Bhubaneswar, Ext.27 is the Medical Report of P.W.28 and

Ext.28 and Ext.29 are the medical reports of P.W.29.

The prosecution also proved sixteen material objects.

M.O.I is the napkin, M.O.II is the lungi, M.O.III is the quilt,

M.O.IV is the panty, M.O.V is the semiz, M.O.VI is the full pant,

M.O.VII is the blue colour jean pant, M.O.VIII is the jean pant,

M.O.IX is the Chadi, M.O.X is the inner garment of the victim,

M.O.Xl is the inner banian (Ganji), M.O.XII is another banian

(Ganji), M.O.XIII is the pink colour panty of the victim, M.O.XIV

is the T-shirt and maroon colour full shirt, M.O.XV is the sealed

vial containing sample of semen, pubic hair, both loose and

plucked and nail clipping and scrapping and M.O.XVI is the vial

containing sample semen, pubic hair, nail clipping and scrapping

of accused Sk. Abid Alli.

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Defence Plea:

5. The defence plea of the appellants is one of denial of

occurrence and of false implication. No witness was examined on

behalf of the defence nor any document was exhibited.

Findings of the Trial Court:

6. The learned trial Court taking into account the

evidence of P.Ws.1, 2, 7, 15, 21 & 25 coupled with the inquest

report (Ext.1) and post mortem examination report (Ext.19)

finding came to hold that the prosecution has established that

the death of the deceased was a homicidal one. It was further

held that there are no eye witnesses to the occurrence and the

case is based on circumstantial evidence. The learned trial Court

jotted down the following six circumstances emerging from the

records, which are as follows:-

(i) The deceased was last seen with the
appellants;

(ii) The appellants were seen taking liquor in
the verandah of the house of one Manu Mian and
gossiping among themselves on 21.08.2014 at
about 12.00 p.m. to 12.30 p.m.;

(iii) The appellants were found trembling,
worried and nervous near the house of Sk.
Khairuddin;

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(iv) Leaving the village Manu Mahala the
appellant Sk. Asif Alli, accused Sk. Abid Alli and
Sk. Abdul Karim Alli in a Hero Honda Activa
scooty at about 6.00 p.m. on 21.08.2014;

(v) Detection of finger print of right index
finger of appellant Sk. Asif Alli by State Finger
Print Bureau from the Aska 40 bottle recovered
from the spot;

(vi) Conduct of the appellant Sk. Asif Alli and
Sk. Abid Alli in absconding from the village.

So far as the circumstance no.(i) is concerned, the

learned trial Court taking into account the evidence of P.W.17,

held that there is nothing to disbelieve in his evidence that

appellant Sk. Akil Alli gagged the mouth of the deceased and

appellant Sk. Asif Alli lifted her and they took her. It was further

held that after the appellants took the deceased as per the

evidence of P.W.17, nobody had seen the deceased till she was

recovered from the Taza of the abandoned house of Sk.

Khairuddin in a senseless and seriously injured condition and she

succumbed to her injuries prior to 8 p.m. and in absence of any

explanation from the appellants, it can safely be concluded that

they were the authors of the crime.

So far as the circumstance no.(ii) is concerned, the

learned trial Court came to hold that the evidence of P.W.6 and

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P.W.23 that they had seen the accused persons taking liquor in

the varandah of the house of Manu Mian at about 12 p.m. or

12.30 p.m. might be a circumstance against the accused

persons, but it cannot be safely concluded that all the accused

persons were the authors of the crime and it is not sufficient to

connect accused Sk. Abid Alli that he was also involved in the

crime as possibility cannot be ruled out that he might have left

the company of appellants Sk. Asif Alli and Sk. Akil Alli after

taking liquor in the varandah of the house of Manu Mian.

So far as the circumstance no.(iii) is concerned, the

learned trial Court held that the evidence of P.W.5 that he had

seen the appellants standing near the house of Sk. Khairuddin is

a circumstance to connect the appellants with the crime. Since

they were planning to lift the victim on the way of her return,

they might be worried and nervous.

So far as the circumstance no.(iv) is concerned, the

learned trial Court held that mere evidence of P.W.1 that the

accused Sk. Abid Alli was seen going towards village Kolta in a

Hero Honda Activa scooty along with appellant Sk. Asif Alli and

Sk. Karim Alli is not sufficient to hold that accused Sk. Abid Alli is

also responsible for the crime along with the appellants and it

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cannot be safely concluded that the accused Sk. Abid Alli is also

involved in the crime.

So far as the circumstance no.(v) is concerned, the

learned trial Court held that detection of right index finger print

of appellant Sk. Asif Alli on Aska 40 liquor bottle recovered from

the spot clearly proved his presence at the spot i.e. in the house

of Sk. Khairuddin and his involvement in the alleged crime

against the victim.

So far as the circumstance no.(vi) is concerned, the

learned trial Court held that absconding of appellant Sk. Asif Alli

from 21.08.2014 to 05.09.2014 is a strong circumstance against

him which completes the chain against him to hold that he is one

of the authors of crime along with appellant Sk. Akil Alli.

However, it was held that the absconding of Sk. Abid Alli from

21.08.2014 to 05.09.2014 cannot be regarded as a strong

circumstance against him in the absence of any other substantial

circumstance to complete the chain of circumstances to hold that

he was one of the authors of the crime.

The learned trial Court held that the prosecution has

successfully established the circumstances against the appellants

and the chain of evidence is so complete as not to leave any

reasonable ground for the conclusion consistent with their

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innocence and the facts so established against them are

consistent only with hypothesis of the guilt of the appellants and

in all human probability, they had committed the ghastly act and

responsible for the crime against the deceased. However, it was

held that the prosecution has failed to prove the chain of

circumstances against the accused Sk. Abid Alli to hold him as

one of the authors of the crime. Taking into account the evidence

of the doctor (P.W.25) and the post mortem report (Ext.19)

findings so also the chemical examination report (Ext.25) and

the ocular evidence of the witnesses (P.Ws.1, 2, 3, 4, 7 & 15)

and also the evidence of the doctor (P.W.21) who examined the

deceased first in a senseless condition, the learned trial Court

held that all the circumstances taken together made it clear that

the appellants had committed rape on the deceased who was

under twelve years of age and that the deceased was subjected

to gang rape. Accordingly, while acquitting the accused Sk. Abid

Alli of all the charges, found the appellants guilty under
sections
/
376-A
/
376-D
of the I.P.C. and
section 6
of POCSO Act.

The learned trial Court after holding the appellants

guilty under various offences, on the very day also heard on the

question of sentence and came to hold that the appellants

ravished the deceased who was a minor girl aged about six years

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and the offences are serious and heinous in nature and against

the norms of a healthy society and it revealed a dirty and

perverted mind of human beings who had no control over their

carnal desires. The number of injuries found on the deceased

showed that she was mercilessly ravished and killed to satisfy

their carnal desire. Taking into account the criminal antecedents

of the appellant Sk. Asif Alli, it was held that after being released

on bail on 20.08.2014 in a case under
section 307
of I.P.C., he

committed the offences in the present case on 21.08.2014 and

thus there is no chance of his reformation. It was further held

that the appellants had taken away the deceased, who was a

minor girl aged about six years, with deliberate intention in order

to commit rape and murder and therefore, it comes within the

category of rarest of rare case warranting capital punishment to

meet the ends of justice.

Submission of parties:

7. Sk. Zafarulla, learned counsel for the appellants

argued that out of six circumstances jotted down by the learned

trial Court, circumstances nos. (iv), (v) and (vi) are not

applicable for the appellant Sk. Akil Alli and circumstances nos.

(ii) & (iii) are not so clinching against the said appellant and

therefore, basing only on circumstance no. (i) i.e. the last seen

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evidence as adduced by P.W.17, it would be too risky to convict

the appellant Sk. Akil Alli under any of the offences charged.

According to him, the sole witness P.W.17 who deposed about

the last seen being a child witness, cannot be relied upon as he

has exaggerated his version by naming two accused persons for

the first time in Court which shows that he had been tutored to

speak such names. Though P.W.17 stated that he had disclosed

about the appellants taking away the deceased before his mother

but the prosecution did not choose to examine the mother of

P.W.17. Similarly P.W.17 stated that he had disclosed also

before his tuition Miss (P.W.26) but she has also not supported

the prosecution case, for which she has been declared hostile. He

placed reliance in the case of Bhagwan Singh & others -Vrs.-

State of M.P. reported in (2003) 3 Supreme Court Cases

21 wherein it is held that evidence of child is required to be

evaluated carefully because he is an easy prey to tutoring.

The learned counsel further argued that the second

circumstance that the appellants were seen taking liquor on the

verandah of the house of one Manu Mian and gossiping among

themselves on the date of occurrence at about 12 p.m. to 12.30

p.m. along with accused Sk. Abid Alli (acquitted) and Sk. Abdul

Karim Alli (absconder) which was two hours before the time of

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occurrence as deposed to by P.W.6 and P.W.23 cannot be itself a

clinching evidence, particularly when as per the evidence of

P.W.6, the accused persons used to take liquor in the verandah

of Manu Mian regularly.

The learned counsel further argued that so far as the

third circumstance regarding the appellants were found

trembling, worried and nervous near the house of Sk. Khairuddin

is concerned, the finding of the learned trial Court that both the

appellants were planning to lift the deceased on the way of her

return for which they might be looking worried and nervous is

totally a hypothetical finding, which cannot be construed as a

conclusive circumstance.

It is argued that so far as the fourth circumstance is

concerned, the evidence of P.W.1 that he along with 40-50

persons were in the field of Akhandalmani when he found the

appellant Sk. Asif Alli, accused Sk. Abid Alli (acquitted) and Sk.

Abdul Karim Alli (absconding) to be going towards village Kolta in

a red colour Activa is not supported by any other witnesses. The

evidence of P.W.1 indicates that after seeing the accused

persons going towards village Kolta, he came to know about the

missing of the deceased and also came to the house of Sk.

Khairuddin where the body of the deceased was detected lying in

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a naked condition with injuries and since he was the relative

brother of the father of the deceased so also the husband of the

informant, it was expected of him to disclose about what he had

seen before them at least after P.W.17 stated about the

appellants lifted away the deceased while she was returning

purchasing chocolates and therefore, it is very difficult to accept

the evidence of P.W.1 and utilise this circumstance against the

appellant Sk. Asif Alli.

The learned counsel argued that so far as the fifth

circumstance i.e. the detection of finger print of right index

finger of the appellant Sk. Asif Alli from Aska 40 bottle recovered

from the spot is concerned, the two seizure witnesses i.e., P.W.6

& P.W.24 have not specifically stated regarding the seizure of

Aska 40 bottle. Similarly, though the evidence of the I.O.

(P.W.27) is that there was collection of chance finger prints from

Aska 40 bottles by the Scientific Officer which were developed

with white powder and marked as Exts.A, B & B-1, but the

concerned Scientific Officer was not examined during trial. It is

argued that the finger print expert who prepared the report has

not been examined but the report has been simply marked as

Ext.26 by the I.O. (P.W.27). Even the Aska 40 bottles in which

three chance finger prints were detected and it was developed,

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were not produced in Court during trial to be marked as M.O. It

is further argued that as per the finger print examination report

marked as Ext.26, the chance prints marked as 'A & B-1' said to

have been detected on different Aska 40 bottles were found to

be partial, faint, smudged and devoid of required number of

clear ridge details for comparison and opinion and for such

reason, no definite opinion could be furnished in respect of

chance prints marked as 'A & B-1', however only chance print

marked as 'B' said to have been detected on Aska 40 liquor

bottle tallied with specimen print marked 'X' said to be the right

index finger print of appellant Sk. Asif Alli @ Md. Asif Iqbal.

Learned counsel argued that the finding as per Ext.26 was not

put to the appellant Sk. Asif Alli in his accused statement to

afford him an opportunity to explain the same and therefore, it

must be completely excluded from consideration and cannot be

utilised against him as one of the circumstances.

The learned counsel further argued that the sixth

circumstance i.e. the absconding of the appellant Sk. Asif Alli

from the village cannot be said to be such a strong circumstance

which without the aid of other clinching circumstantial evidence

can form a chain so complete to arrive at the conclusion that he

is guilty of the offences charged and therefore, it is a fit case

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where benefit of doubt should be extended in favour of the

appellants. He further argued relying on the decision of the

Hon'ble Supreme Court in the case of Shankar Kisanrao Khade

-Vrs.- State of Maharashtra reported in (2013) 55 Orissa

Criminal Reports (SC) 623 that in the event the appellants are

found guilty, in view of their age, family background and the

reports received from different authorities as per the orders of

this Court, the death sentence should be commuted to life

imprisonment.

8. Mr. Bibhu Prasad Tripathy, learned Additional

Government Advocate, on the other hand supported the

impugned judgment and argued that the evidence of last seen as

deposed to by P.W.17 is very natural and convincing and even

though he is a child witness, but the learned trial Court after

putting some questions found that he was able to answer the

questions rationally and therefore, declared him to be a

competent witness. The evidence of P.W.17 having not been

shaken in the cross-examination and being corroborated by the

evidence of P.Ws.2, 3, 7 & 15 before whom he made disclosure

about the occurrence, the learned trial Court has rightly placed

reliance on such evidence. Reliance was placed on the decisions

of the Hon'ble Supreme Court in case of Panchhi & others

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-Vrs.- State of U.P. reported in (1998) 7 Supreme Court

Cases 177 and State of Madhya Pradesh -Vrs.- Ramesh &

another reported in (2011) 4 Supreme Court Cases 786.

According to Mr. Tripathy, the last seen evidence adduced by

P.W.17 in the factual scenario is very relevant as the place of

lifting of the deceased by the appellants was very close to the

place from where her body was recovered in a naked condition

having injuries and the appellants have failed to explain what

they did with the deceased after taking her while she was

coming with P.W.17 and when they parted with the company of

the deceased. He placed reliance in the case of Ram Gopal

-Vrs.- State of Madhya Pradesh reported in (2023) 5

Supreme Court Cases 534. Reliance was also placed in the

decision of the Hon'ble Supreme Court in the case of

Somasundaram @ Somu -Vrs.- State reported in (2020) 7

Supreme Court Cases 722.

The learned counsel for the State further argued that

the evidence of the witnesses relating to taking of liquor by the

appellants and the other accused persons on the verandah of

Manu Mian prior to the occurrence and the trembling, worried

and nervous condition of the appellants near the spot house are

very clinching and such evidence has not been shattered in the

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cross-examination. He submitted that the detection of finger

print of Sk. Asif Alli from Aska 40 bottle which was seized from

the spot has been rightly utilised by the learned trial Court

against the said appellant and non-examination of finger print

expert and non-production of Aska 40 bottles for marking as

M.Os. cannot be a ground to discard such evidence. Reliance was

placed on the decision of the Hon'ble Supreme Court in case of

Shri Phool Kumar -Vrs.- Delhi Administration reported in

(1975) 1 Supreme Court Cases 797. It is argued that even if

no direct questions have been put to the appellant Sk. Asif Alli

with regard to matching of one chance finger print from Aska 40

bottle recovered at spot marked as 'B' with his specimen finger

print marked as 'X', the same cannot be a ground not to utilise it

as an incriminating circumstance. Reliance was placed on the

decisions of the Hon'ble Supreme Court in the case of Paramjit

Singh -Vrs.- State of Uttarakhand reported in A.I.R. 2011

S.C. 200 and Nar Singh -Vrs.- State of Haryana reported in

(2015) 1 Supreme Court Cases 496.

It is argued that the learned trial Court has rightly

held the chain of circumstances to be complete pointing towards

the guilt of the appellants and therefore, the criminal appeals

preferred by the appellants being devoid of merits should be

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dismissed. He further argued that in view of the age of the

deceased, the manner in which she was lifted while coming with

her cousin brother (P.W.17) after purchasing chocolates in the

broad day light and subsequently found in a naked condition and

what had been done with her in a devilish manner as would be

evident from the post mortem report finding, the learned trial

Court was quite justified in imposing death sentence on the

appellants. He placed reliance in the cases of Ravi -Vrs.- State

of Maharashtra reported in (2019) 9 Supreme Court Cases

622, Manoharan -Vrs.- State reported in (2019) 7

Supreme Court Cases 716, Laxman Naik -Vrs.- State of

Orissa reported in (1994) 3 Supreme Court Cases 381 and

Dhananjoy Chatterjee -Vrs.- State reported in (1994) 2

Supreme Court Cases 220.

Principle for appreciating the case based on circumstantial
evidence:

9. There is no dispute that there is no direct evidence

as to who committed the rape and murder of the deceased and

how. The prosecution case hinges on circumstantial evidence. It

is well established rule of criminal justice that fouler the crime,

the higher should be the degree of proof. A moral opinion

howsoever strong or genuine cannot be a substitute for legal

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proof. When a case is based on circumstantial evidence, a very

careful, cautious and meticulous scrutinisation of the evidence is

necessary.

In the case of Sharad Birdhichand Sarada -Vrs.-

State of Maharashtra reported in A.I.R. 1984 S.C. 1622, it

is held that the circumstances from which the conclusion of guilt

is to be drawn against an accused should be fully established.

The facts so established should be consistent with the hypothesis

of the guilt of the accused and they should not be explainable on

any other hypothesis except that the accused is guilty. The

circumstances should be of conclusive nature and tendency.

They should exclude a brief possible hypothesis except the one

to be proved. 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 in all human

probabilities that the act must have been done by the accused.

These five golden principles for appreciation of a case based on

circumstantial evidence have been named as 'Panchsheel'. In the

case of Gambhir -Vrs.- State of Maharashtra reported in

A.I.R. 1982 S.C. 1157, the Hon'ble Supreme Court held that

the circumstantial evidence should not only be consistent with

the guilt of the accused but should be inconsistent with his

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innocence. In the case of Jaharlal Das -Vrs.- State of Orissa

reported in (1991) 4 Orissa Criminal Reports (SC) 278, the

Hon'ble Supreme Court held that it is to be borne in mind as a

caution that in cases depending largely upon circumstantial

evidence, there is always a danger that the conjecture or

suspicion may take the place of legal proof and such suspicion

howsoever strong cannot be allowed to take the place of proof.

The Court has to be watchful and ensure that conjectures and

suspicions do not take the place of legal proof. The Court must

satisfy itself 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 of the

innocence of the child.

In the light of legal position about the circumstantial

evidence, it is to be examined whether the circumstantial

evidence in the instant case satisfies the requirements of law.

The first three circumstances relied upon by the trial

Court is common to both the appellants to be discussed first,

which are as follows:-

(i) 'Last seen' theory i.e. the appellants and
the deceased were last seen together;

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(ii) Conduct of the appellants i.e. the
appellants were seen taking liquor in the
verandah of the house of one Manu Mian and
gossiping among themselves on 21.08.2014 at
about 12.00 p.m. to 12.30 p.m.;

(iii) The appellants were found trembling,
worried and nervous near the house of Sk.
Khairuddin;

First Circumstance : 'Last seen' theory i.e. the appellants

and the deceased were last seen together:

10. On this circumstance, the relevant witness is P.W.17,

the cousin brother of the deceased. He was aged about seven

years when he deposed in Court on 04.02.2016. He stated that

the informant (P.W.7) was his aunt and the deceased was his

sister and on the date of occurrence, when he along with the

deceased was returning after purchasing some chocolates, on

the way appellant Sk. Asif Alli asked the deceased as to whose

daughter she was, to which the deceased replied that she was

the daughter of Taz and then Sk. Akil Alli gagged the mouth of

the deceased and the appellant Sk. Asif Alli lifted the deceased

and took her away. He further stated that the accused Abid (Sk.

Abid Alli) and Karim (Sk. Abdul Karim Alli) were along with the

appellants. He stated to have disclosed the fact to his mother,

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tuition Miss (P.W.26) so also to the informant (P.W.7) and to the

police.

Admittedly, the mother of P.W.17 has not been

examined and the tuition Miss (P.W.26) has not supported the

prosecution case.

Though P.W.17 implicated accused persons Abid and

Karim, but it has been confronted to him and proved through the

I.O. (P.W.27) that he has not stated in his statement recorded

under
section 161
of Cr.P.C. that the accused persons Abid and

Karim were present when the appellants lifted away the

deceased. He further stated to have been to the shop to

purchase chocolates with the deceased at about 2.00 p.m. and

that they were returning home at about 3.00 p.m. He stated not

to have met any known person when they had been to purchase

chocolates and were returning home. Thus the implication of

accused Abid (Sk. Abid Alli) and Karim (Sk. Abdul Karim Alli) was

made by P.W.17 for the first time in Court, which was more than

a year and five months after the occurrence.

P.W.7 has stated that when they enquired from

P.W.17, he disclosed that while he along with the deceased was

returning from the shop after purchasing chocolates, appellant

Sk. Akil Alli called the deceased and gagged her mouth and

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appellant Sk. Asif Alli lifted her and took her. Thus P.W.17 has

not implicated accused Abid and Karim to be in the company of

the appellants before P.W.7 and that is how in the first

information report (Ext.3) lodged by P.W.7, the names of

accused Abid and Karim did not find place. In the F.I.R., P.W.7

has mentioned that when she asked P.W.17, he disclosed that

while returning home, the appellants lifted away the deceased

gagging her mouth.

P.W.2 has also stated that P.W.17 disclosed before

them that the appellant Sk. Akil Alli gagged the mouth of the

deceased and appellant Sk. Asif Alli lifted her away and thus,

P.W.17 has not implicated accused persons Abid and Karim

before P.W.2.

Thus, it is apparent that P.W.17 has neither disclosed

before P.W.2 and P.W.7 about any role played by the accused

persons Abid and Karim nor he has stated before the I.O. in his

previous statement about their presence at the spot when the

deceased was lifted and taken away by the appellants and for

the first time, such a statement has been made by him during

trial.

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Whether P.W.17 was a competent witness to testify?

10.1. P.W.17 is a child witness and aged about seven

years. Thus, in view of
section 118
of the Evidence Act, it is to

be seen whether he was a competent witness to testify.

In the case of P. Ramesh -Vrs.- State reported in

(2019) 20 Supreme Court Cases 593, the Hon'ble Supreme

Court held that the trial Judge was required to determine as to

whether the child witness was in a fit and competent state of

mind to depose and was able to understand the purpose for

being present on the occasion. Prior to the recording of evidence

of a child witness, the trial Court must undertake the exercise of

posing relevant questions to determine the capacity of the child

witness to provide rational answers. This exercise would allow

the Court to determine whether the child has the intellectual and

cognitive skills to recollect and narrate the incidents of the crime.

Section 118
of the Evidence Act, 1872 deals with the

competence of a person to testify before the Court.
Section 4
of

the Oaths Act, 1969 requires all witnesses to take oath or

affirmation, with an exception for child witnesses under the age

of twelve years. Therefore, if the Court is satisfied that the child

witness below the age of twelve years is a competent witness,

such a witness can be examined without oath or affirmation. It is

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further held that in order to determine the competency of a child

witness, the Judge has to form her or his opinion. The Judge is at

the liberty to test the capacity of a child witness and no precise

rule can be laid down regarding the degree of intelligence and

knowledge which will render the child a competent witness. The

competency of a child witness can be ascertained by questioning

her/him to find out the capability to understand the occurrence

witnessed and to speak the truth before the Court. In criminal

proceedings, a person of any age is competent to give evidence

if she/he is able to (i) understand questions put as a witness;

and (ii) give such answers to the questions that can be

understood. A child of tender age can be allowed to testify if

she/he has the intellectual capacity to understand questions and

give rational answers thereto. A child becomes incompetent only

in case the Court considers that the child was unable to

understand the questions and answer them in a coherent and

comprehensible manner. If the child understands the questions

put to her/him and gives rational answers to those questions, it

can be taken that she/he is a competent witness to be examined.

Before recording the evidence of P.W.17, the learned

trial Judge put some formal questions to him like his name,

father's name, name of the school, what was the place where he

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had come and the purpose in coming to the Court. Since P.W.17

answered all the questions correctly, the learned trial Judge

noted down that the witness is able to answer the questions

rationally and therefore, he is a competent witness. However,

oath was not administered to him as he was seven years of age.

No challenge has been made by the learned counsel

for the appellants regarding the competency of P.W.17 to

depose.

The admissibility of evidence or acceptability of

evidence of a child witness is not solely dependent on his

competency. It is well settled that a child witness is prone to

tutoring and there is every possibility that under influence, such

witness might have been posed to give out a version by persons

who may have influence on him. Thus, the testimony of a child

witness should be evaluated more carefully and only be accepted

after greatest caution and circumspection.

In the cross-examination, suggestion has been given

to P.W.17 that he was deposing falsehood being tutored by

P.W.7 and P.W.15 to which he denied. In the case of Ramesh

(supra), it is held by the Hon'ble Supreme Court that deposition

of a child witness may require corroboration but in case his

deposition inspires the confidence of the Court and there is no

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embellishment or improvement therein, the Court may rely upon

his evidence. The evidence of a child witness must be evaluated

more carefully with greater circumspection because he is

susceptible to tutoring. Only in case there is evidence on record

to show that the child has been tutored, the Court can reject his

statement partly or fully. However, an inference as to whether

child has been tutored or not, can be drawn from the contents of

his deposition. In the case of Panchhi (supra), the Hon'ble

Supreme Court held that it is not the law that if a witness is a

child, his evidence shall be rejected, even if it is found reliable.

The law is that evidence of a child witness must be evaluated

more carefully and with greater circumspection because a child is

susceptible to be swayed by what others telling and thus a child

witness is an easy to prey to tutoring. Courts have laid down

that evidence of a child witness must find adequate

corroboration before it is relied on. It is more of a rule of

practical wisdom than law.

The main plank of argument by the learned counsel

for the appellants is that there is every possibility of tutoring to

him and that is the reason why he implicated two accused

persons for the first time in Court i.e. accused Abid and Karim

even though he has not implicated them before police so also

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while making disclosure about the occurrence before P.W.2 and

the informant (P.W.7). The question that now crops up for

consideration as to whether the evidence of P.W.17 is to be

totally rejected as he has implicated two accused persons i.e.

Abid and Karim for the first time during trial. The maxim falsus in

uno falsus in omnibus i.e. false in one thing false in all is not a

sound rule to apply in the condition in our country. It means that

if any witness makes a statement which may be incorrect to

some extent, it does not inevitably follow that the other portion

of his statement, which is correct, has also to be disbelieved. It

is very difficult to find a witness whose evidence does not contain

a grain of untruth or at any rate exaggeration, embroideries or

embellishments. The Courts should make efforts to disengage

the truth from falsehood, and to shift the grain from the chaff

and where the truth and falsehood are so intermingled so as to

make it impossible to separate them, the evidence has to be

rejected in entirety. It is a misconception that a witness has to

be believed in toto or disbelieved in toto. The Court must

appraise the evidence to see as to what extent it is worthy of

acceptance and merely because in one respect, the Court

considers it insufficient to rely the testimony of a witness, it does

not necessarily follow as a matter of fact that it must be

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discarded in all respect as well. Therefore, implication of two

accused persons namely, Abid and Karim for the first time in

Court during trial by P.W.17 itself cannot be a ground to

disbelieve his evidence rather his evidence is required to be

carefully assessed and to see if there is any corroboration to his

evidence or not. The possibility of coming to his knowledge

regarding the involvement of accused persons namely, Abid and

Karim afterwards from other sources cannot be ruled out and

therefore, he might have been tempted to speak against them in

the witness-box. Bereft of implication of two accused Abid and

Karim, nothing has been brought out in the cross-examination to

discard his evidence, rather his evidence is very natural, clear,

cogent and trustworthy. P.W.7 has stated that the deceased had

gone to the shop to purchase chocolate along with P.W.17.

P.W.19 has stated that on the date of occurrence at about 2 p.m.

to 2.30 p.m. the deceased and P.W.17 had come to his

stationery shop for chocolate and took chocolate and went away.

The evidence of these two witnesses i.e. P.W.7 and P.W.19 lend

corroboration to the evidence of P.W.17 that the latter was with

the deceased at the time of occurrence. Thus the presence of

P.W.17 with the deceased, his conduct in disclosing before others

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what happened with the deceased is relevant and admissible as

res gestae under
section 6
of Evidence Act.

In the case of Anjan Kumar Sarma and others

-Vrs.- State of Assam reported in (2017) 14 Supreme

Court Cases 359, it is held that the circumstance of last seen

together cannot by itself form the basis of holding the accused

guilty of the offence. In a case where other links have been

satisfactorily made out and the circumstance pointed to the guilt

of the accused, the circumstance of last seen together and

absence of explanation would provide an additional link which

completes the chain and in the absence of proof of other

circumstances, the only circumstance of last seen together and

absence of satisfactory explanation cannot be made the basis of

conviction.

In the case of Ram Gopal (supra), it is held that

once the theory of 'last seen together' was established by the

prosecution, the accused was expected to offer some explanation

as to when and under what circumstances he had parted the

company of the deceased. It is true that the burden to prove the

guilt of the accused is always on the prosecution, however, in

view of
section 106
of the Evidence Act, when any fact is within

the knowledge of any person, the burden on of proving that fact

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is upon whom. Of course,
section 106
of the Evidence Act is

certainly not intended to relieve the prosecution of its duty to

prove the guilt of the accused, nonetheless, it is also equally

settled legal position that if the accused does not throw any light

upon the facts which are proved to be within the special

knowledge, in view of
section 106
of the Evidence Act, such

failure on the part of the accused may be used against the

accused as it may provide an additional link in the chain of

circumstances required to be proved against him. In the case

based on circumstantial evidence, furnishing or non-furnishing of

the explanation by the accused would be a crucial fact, when the

theory of last seen together as propounded by the prosecution

was proved against him. Though the last seen theory as

propounded by the prosecution in a case based on circumstantial

evidence may be a weak kind of evidence by itself to base

conviction solely on such theory, when the said theory is proved

coupled with other circumstances such as the time when the

deceased was last seen with the accused and the recovery of the

corpse being in very close proximity of time, the accused does

owe an explanation under
section 106
of the Evidence Act with

regard with the circumstances under which death might have

taken place. If the accused offers no explanation or furnishes a

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wrong explanation, absconds, motive is established and some

other corroborative evidence in the form of recovery of weapon

etc. forming a chain of circumstance is established, the

conviction could be based on such evidence.

In the case of Somasundaram @ Somu (supra),

where specific charges under
sections 347
/
/
of the I.P.C.

were framed, it is held by the Hon'ble Supreme Court that the

abduction followed by murder in appropriate cases can enable a

Court to presume that the abductor is the murderer. The

principle is that after abduction, the abductor would be in a

position to explain what happened to his victim and if he failed to

do so, it is only natural and logical that an irresistible inference

may be drawn that he has done away with the hapless victim.

Section 106
of the Evidence Act would come to the assistance of

the prosecution.

In the case in hand, however, there is neither any

charge of abduction nor any charge of illegal confinement. In the

accused statement, the learned trial Court has put specific

questions to the appellants on the evidence of P.W.17 but except

stating that the same was false, nothing further has been stated

by the appellants.

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Therefore, I am of the humble view that the learned

trial Court has rightly placed reliance on the evidence of P.W.17

and held that the last seen theory has been established by the

prosecution. The evidence of P.W.17 that the appellants and the

deceased were last seen together when both of them lifted away

the deceased while she was returning with him after purchasing

chocolates from the village shop can be used as one of the

incriminating circumstance against the appellants as has been

rightly done by the learned trial Court, but in my humble view,

such circumstance of last seen in itself cannot be held sufficient

to record the finding of guilt of the appellants.

Thus the first circumstance i.e. last seen theory even

though proved by the prosecution has to be taken into account

along with the other circumstances to see whether the chain of

evidence has been established clearly and that it forms a

completed chain.

Second Circumstance: Conduct of the appellants in taking

liquor in the verandah of the house of one Manu Mian:

11. The second circumstance relied upon by the

prosecution is that on 21.08.2014 at about 12.00 p.m. to 12.30

p.m., the appellants were seen taking liquor in the verandah of

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the house of one Manu Mian and gossiping among them which is

being deposed to by P.W.6 and P.W.23.

P.W.6 has stated that on the occurrence day, while

he was coming to his village Krushnanandapur, he saw the

appellants and the accused persons namely, Sk. Abid and Sk.

Karim were taking liquor at about 12.30 noon on the varandah of

the house of Manu Mian and they were talking with each other.

In the cross-examination, he has stated that the accused

persons used to take liquor in the varandah of Manu Mian

regularly. P.W.23 has also stated to have seen the appellants

and the accused persons namely, Sk. Abid Alli and Sk. Karim Alli

taking liquor in the varandah of Manu Mian and gossiping among

them on the date of occurrence at about 12 noon.

The time when the appellants and the two other

accused persons were seen taking liquor was much before the

time when P.W.17 with the deceased came to purchase

chocolates and after purchasing were returning home. P.W.17

has stated that he had been to the shop with the deceased to

purchase chocolate at about 2 p.m. and was returning at about 3

p.m. Similarly P.W.19 has stated that on the date of occurrence

at about 2 p.m. to 2.30 p.m., the deceased and P.W.17 had

come to his stationery shop for purchasing chocolate. As

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deposed to by P.W.6, the appellants and the accused persons

namely, Sk. Abid and Sk. Karim used to take liquor in the

varandah of Manu Mian regularly. Learned trial Court has held

that from this circumstance, it cannot be safely concluded that

all the accused persons were the authors of the crime. It was

further held that the possibility of accused Sk. Abid Alli leaving

the company of the appellants after taking liquor from the

varandah of the house of Manu Mian cannot be ruled out.

Thus, the second circumstance i.e. the appellants

were seen taking liquor in the verandah of the house of one

Manu Mian and gossiping among themselves and the other two

accused persons were also with them, as proved by the

prosecution is not by itself sufficient to connect the appellants

with the crime. It is to be considered along with the other proved

circumstances to see whether the chain of evidence is so

complete as to unerringly point towards the guilt of the

appellants.

Third Circumstance : Appellants were found trembling,

worried and nervous near the house of Sk. Khairuddin:

12. The third circumstance i.e the appellants were found

trembling, worried and nervous near the house of Sk. Khairuddin

is concerned, P.W.5 is the sole witness on this circumstance.

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P.W.5 has stated that on the date of occurrence at

about 2 p.m. to 2.30 p.m. while he was returning from Masjid

after Namaz, he found the appellants near the house of Sk.

Khairuddin and they were found trembling, looking worried and

nervous and then he went to his house.

The learned trial Court held that since the appellants

were planning to lift the victim on the way of her return, they

might be worried and nervous. It is nothing but a hypothetical

conclusion. There is nothing on record that the deceased and

P.W.17 had passed by that way by that time to purchase

chocolates from the stationery shop of P.W.19 and that the

appellants had seen them. According to P.W.17, he had been to

the shop with the deceased to purchase chocolate at about 2

p.m. and was returning at about 3 p.m.

The conclusion arrived at should be sensible and

reasonable. It must be based on reasons rather than

imaginations and emotions. P.W.5 stated that he was a close

relative of the deceased and the deceased belonged to her

family. It is true that related witness is not necessarily a false

witness, but when P.W.5 was just passing by that way near the

house of Sk. Khairuddin after Namaj in Masjid and there is no

evidence how much time he observed both the appellants and

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found them trembling, looking worried and nervous, even if the

evidence of P.W.5 is accepted, it cannot be said with certainty

that it was before the lifting of the deceased as held by the

learned trial Court. Trembling, looking worried and nervousness

can be for a variety of reasons and it cannot be said with

certainty that it was only for the reasons assigned by the trial

Court. The body of the deceased was located on the Taza of the

house of Sk. Khairuddin at about 5.30 p.m. as stated by the

informant (P.W.7) and the appellants were found near the house

of Sk. Khairuddin at about 2 p.m. to 2.30 p.m. as stated by

P.W.5.

Thus, the third circumstance as proved by the

prosecution, i.e the appellants were found trembling, worried

and nervous near the house of Sk. Khairuddin, in my humble

view is not so clinching by itself to arrive at the conclusion as

reached by the trial Court or sufficient to connect the appellants

with the crime and it is to be considered along with the other

proved circumstances.

Summed up : Circumstances against the appellant Sk. Akil

Alli:-

13. The three circumstances which are appearing against

appellant Sk. Akil Alli as discussed above, I am of the humble

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view that though through the evidence of P.W.17, the

prosecution has successfully proved that on the date of

occurrence in the afternoon, both the appellants lifted away the

deceased while she was returning after purchasing chocolates

and thus the appellants and the deceased were last seen

together, but such circumstance of last seen coupled with the

circumstance that the appellant Sk. Akil Alli was seen taking

liquor in the verandah of the house of Manu Mian with appellant

Sk. Asif Alli and the other two accused i.e. Sk. Abid Alli and Sk.

Abdul Karim Alli so also the circumstance that he along with the

appellant Sk. Asif Alli was found trembling, worried and nervous

near the house of Sk. Khairuddin in the afternoon on the date of

occurrence do not form a complete chain to record the finding

that it is consistent only with the hypothesis of guilt of the

appellant Sk. Akil Alli and totally inconsistent with his innocence

and prove the charges against him beyond all reasonable doubt.

The circumstances proved raised an amount of suspicion, but

suspicion, howsoever strong, cannot be a substitute for proof of

the guilt of the appellant beyond reasonable doubt.

There is no evidence against appellant Sk. Akil Alli

that he tried to flee or abscond from his village. He was

apprehended by local people and handed over to the I.O.

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(P.W.27) on the night of occurrence. The appellant was

examined by the doctor (P.W.28) at C.H.C., Manijanga on police

requisition and he was found capable of committing sexual

intercourse and his pubic hair and sample semen were collected

by the doctor and kept in sealed vials and handed over to the

escorting constable, which in turn were seized by the I.O.

(P.W.27), who also seized the wearing apparels of the appellant

i.e. blue colour check lungi and one half vest on being produced

by him as per seizure list Ext.6. The forwarding report for

chemical examination, which was marked as Ext.24, would

indicate that the check lungi of the appellant Sk. Akil Alli was

marked as Ext.'P', his half vest was marked as Ext.'P-1', pubic

hair of the appellant was marked as Ext.'Q' and sample semen of

the appellant collected in a sealed bottle was marked as Ext.'Q-

1'. The nature of examination sought for so far as these four

exhibits, which relate to the appellant Sk. Akil Alli were (i)

whether Exts.'P' & 'P-1' contained any blood stain and if so,

whether it tallied with Exts.'B', 'E' & 'L' i.e. the wearing apparels

of the deceased; (ii) whether Exts.'P' and 'P-1' contained any

vaginal swab and if so, whether it tallied with Ext.'M-1' (vaginal

swab); (iii) whether any blood stain/seminal stain detected in

Ext.'A' i.e. the kantha seized from the spot and did it tally with

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Ext.'Q-1', (iv) whether the stains detected in Exts.'B' & 'L' i.e.

the wearing apparels of the deceased tallied with Ext.'Q-1' and

(v) whether Ext.'Q' tallied with any hair detected from Ext.'A'.

The chemical examination report (Ext.25) indicates that in

Exts.'P' & 'P-1', no blood, no semen and no vaginal secretion

stain were noticed and similarly in Ext.'Q', no blood and no

semen were noticed. So far as Ext.'Q-1' is concerned, it was

found to be deteriorated due to preservation in liquid state.

Admittedly, no finger print of the appellant Sk. Akil Alli was

found to be tallying with the chance finger prints detected on

Aska 40 liquor bottles found at the spot.

Therefore, from the three proved circumstances, it is

difficult to sustain the conviction of the appellant Sk. Akil Alli

under
sections 302
/
376-A
/
376-D
of the I.P.C. and
section 6
of

the POCSO Act and accordingly, the same is hereby set aside

and the appellant is acquitted of all the charges.

14. Before proceeding further to discuss about the

remaining three circumstances, which are against Sk. Asif Alli @

Md. Asif Iqbal, it would be apt to discuss whether prosecution

has proved that the deceased was subjected to rape and she met

with a homicidal death.

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Whether the deceased was subjected to rape and she met

with a homicidal death:

14.1. The deceased was first detected on the Taza of the

house of Sk. Khairuddin by P.W.3 who found her in a naked

condition. P.W.2 stated to have noticed nail marks on the belly

and backside and knee of the victim and he also found blood

patches on the thigh. P.W.15 has stated that the victim was

recovered in a senseless and naked condition and she had

sustained bleeding injuries on her person including her genital.

P.W.7 has stated that she found the victim naked and senseless

when she was rescued from Taza of the house of Sk. Khairuddin.

She also found injuries on the chest, shoulder, below the ear,

back and knee of the deceased and she had sustained bleeding

injuries on her private part and there was dried blood in her

private part and that they covered the body of the deceased with

bed sheet and shifted her to Tendakunda Hospital. P.W.21 Dr.

Amrit Kumar Behera who was the Medical Officer in New

Tendakuda C.H.C. examined the deceased and he stated that

when some persons brought the deceased to him on 21.08.2014

at about 6.30 p.m., he found the deceased was in a senseless

condition having some nail marks on her neck and some marks

on the back. He also found redness with blood stain in her

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private part (in pubic area) for which he referred her to

S.C.B.M.C.H., Cuttack for further treatment. He proved the OPD

ticket vide Ext.18, which was seized by the I.O. as per seizure

list Ext.17. While the deceased was being shifted to the hospital

at Cuttack, on the way near Kandarpur, she died for which P.W.7

and others who were carrying her returned back to the village.

The inquest report marked as Ext.1 also indicates that the

deceased had sustained injuries on different parts of her body

including bleeding injuries on her vagina.

P.W.25 Dr. Saumya Ranjan Naik, Assistant Professor,

F.M.T., S.C.B.M.C.H., Cuttack conducted post mortem

examination over the dead body of the deceased on 22.08.2014

and noticed the following injuries :-

External injuries:

(i) Genital area found swollen and edematous
and fluid blood found coming out from the
vaginal opening. Labia Majora and labia minora
found contused, posterior commissure found
contused and lacerated. Vaginal opening found
stretched and the margins were seen contused
and lacerated. There was wide gaping of vaginal
cutlet and vaginal canal. Hymen found
completely lacerated, mostly on the posterior
aspect;

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(ii) Abrasion looking red (3 cm x 1 cm)
present on right breast;

(iii) Abrasion looking red (4 cm x 0.5 cm)
present on right side front of abdomen vertically
1 cm lateral to umbilicus;

(iv) Scratch abrasion (2 cm x 0.1 cm) present
on right side zygomatic area;

(v) Abrasion (0.7 cm x 0.2 cm) present on
middle of left pinna;

(vi) Abrasion (1 cm x 1 cm) on front of left
knee;

(vii) Abrasion (2 cm x 2 cm) on lateral aspect
of left knee;

(viii) Multiple scratch abrasions of length
varying from 1 cm to 5 cm present on left side
back of chest 6 cm below scapula;
(ix) Multiple small abraded contusions over an
area of abdomen at the level of LI (6 cm x 4 cm)
present on mid line;

(x) Multiple small abrasions (3 cm x 1 cm)
present on sacral area;

(xi) Multiple small abrasions present on left
scapula shoulder;

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(xii) Multiple small abrasions present on right
scapula;

(xiii) Multiple small abrasions present on front
and right side of neck.

On dissection:

Left side lateral wall of vaginal canal found
torn and lacerated and the margins were found
contused. About 200 fluid blood found within
pelvic cavity. Structures of the neck were found
intact without any extravasations of blood.
Stomach contained 300 grams partially digested
food particles without emitting any characteristic
odour, mucosa is healthy. All other organs were
intact and pale.

The doctor (P.W.25) has stated in his evidence that

external injuries nos.(ii) to (xiii) found on the dead body were

ante mortem in nature and might have been caused by hard and

blunt trauma or contact with hard and rough surface. He has

further opined that external injury no.(i) along with

corresponding internal injuries were ante mortem in nature and

consistent with forceful thrusting and could have been caused

due to penetration of male organ. As per his opinion, death of

the deceased was due to shock and hemorrhage as a result of

injuries to genital track which were fatal in ordinary course of

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nature. According to him, age of injuries were of fresh duration

at the time of death, time since death was within 12 to 24 hours

prior to autopsy and the death was within 12 to 24 hours prior to

autopsy and the death was homicidal in nature. During cross-

examination, P.W.25 has clearly denied the suggestion put to

him by the learned defence counsel by saying that the injuries

on the vagina were not possible by fall on hard surface or by

inserting a wooden substance in the vagina.

In view of the oral as well as medical evidence, I am

of the humble view that the deceased was subjected to rape and

on account of rape, external injuries were caused on different

parts of her body including injuries to genital track which were

fatal in ordinary course of nature and it also caused shock and

hemorrhage which resulted in her death and her death was

homicidal in nature. The learned counsel for the appellants has

not challenged this aspect though it is his contention that there

is insufficient evidence on record to hold the appellants liable for

such offences.

Remaining three circumstances:

15. The remaining three circumstances which are against

the appellant Sk. Asif Alli @ Md. Asif Iqbal are to be discussed

now.

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Fourth Circumstance : Appellant Sk. Asif Alli was found

leaving village Manu Mahala on the date of occurrence:

16. The fourth circumstance i.e. the appellant Sk. Asif Alli

was found leaving village Manu Mahala in a Hero Honda Activa

scooty on the date of occurrence i.e. on 21.08.2014 at about 6

p.m. with the accused Sk. Abid Alli and Sk. Abdul Karim Alli, has

been deposed to by P.W.1 Sk. Wamik Alli who is the sole witness

on this circumstance. He has stated that on the date of

occurrence in the afternoon, while he along with others were in

the field of Akhandalmani, they found the appellant Sk. Asif Alli

along with accused Sk. Abid Alli (acquitted) and Sk. Karim Alli

(absconding) were going towards village Kolta in a red colour

Activa. In the cross-examination, P.W.1 has stated that he went

to Akhandalmani field at about 4 p.m. and returned to his house

at about 5.20 p.m. He further stated that by the time of his

arrival at Akhandalmani field, around forty to fifty persons were

there. He further stated that he was examined by the police in

front of the house of the deceased on the night of occurrence.

It is the contention of the learned counsel for the

appellants that even though there are many others present at

Akhandalmani field, only P.W.1 was examined to prove this

circumstance. Learned counsel for the State submitted that in

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the matter of appreciation of evidence of witnesses, it is not the

number of witnesses but quality of evidence that is important.

Adverting to the contentions raised, law is well

settled that
section 134
of the Evidence Act does not provide for

any particular number of witnesses and it would be permissible

for the Court to record a finding regarding any particular aspect

of the prosecution case on the evidence of a solitary witness if

his evidence is found to be credible, reliable, in tune with the

case of the prosecution and inspires implicit confidence. It is not

the quantity but quality of evidence adduced by the witness that

matters for determining the guilt or innocence of the accused.

The testimony of a sole witness must be confidence-inspiring and

beyond suspicion, thus, leaving no doubt in the mind of the

Court.

The evidence of P.W.1 who is related to the father of

the deceased as brother cannot be doubted on the ground of

relationship as related witnesses are not necessarily false

witnesses. Unless their evidence suffers from serious infirmity or

raises considerable doubt in the mind of the Court, it would not

be proper to discard their evidence straight away. Evidence of

P.W.1 has not been shattered or discredited by the defence in

spite of searching cross-examination. He disclosed before police

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what he had seen when he was examined on the night of

occurrence The leaving of village Manu Mahala by the appellant

Sk. Asif Alli along with the other two might not have been

noticed by others present in Akhandalmani field as they just

passed through that way. P.W.4 was present in Akhandalmani

field and he was playing football when he came to know about

the missing of the deceased but he has not stated about this

circumstance. Non-examination of other witnesses to prove the

same circumstance is immaterial.

After carefully assessing the evidence of P.W.1, I find

him to be a reliable witness and through his evidence, the

prosecution has successfully proved the fourth circumstance.

Fifth Circumstance : Detection of finger print of appellant

Sk. Asif Alli by State Finger Print Bureau from the Aska 40

bottle found at the spot:

17. The fifth circumstance relied upon by the prosecution

is that the right index finger print of the appellant Sk. Asif Alli

was detected by the State Finger Print Bureau from the Aska 40

bottle recovered from the spot.

P.W.27, the I.O. has stated that the scientific team

of S.F.S.L., Rasulgarh and staff of D.F.S.L., Jagatsinghpur

arrived at the spot on 22.08.2014 at 1.30 pm. and inspected the

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spot and as per seizure list Ext.2, three nos. of Aska 40 bottles

along with other articles were seized in presence of witnesses at

3.30 p.m. The seizure list Ext.2 though does not specifically

indicate seizure of Aska 40 bottles, but it indicates about seizure

of three nos. of glass bottles marked as Exts. 'J', 'J/1' and 'J/2'.

The I.O. (P.W.27) has further stated that during inspection of

spot by the Scientific Officer Chunuram Murmu, State F.S.L.,

Rasulgarh, Bhubaneswar, three chance finger prints were

detected from the bottles (Aska 40 bottles) by the Finger Print

Sub-Inspector, Jagatsinghpur and the chance finger prints were

developed with white powder and marked as Exts.'A', 'B' & 'B-1'.

Ext.2 also indicates in column no.2 regarding production of

different articles by Scientific Officer Chunuram Murmu, State

S.F.S.L., Rasulgarh, Bhubaneswar before the I.O. and the I.O.

has also stated that on 22.08.2014 at about 3.30 p.m. he seized

the articles after those were handed over to him by the S.F.S.L.

Officer.

P.Ws.6 & 24 are the witnesses to the seizure list

Ext.2. P.W.6 while proving his signature in seizure list Ext.2, has

stated about seizure of different articles as per the said seizure

list. P.W.24 has also stated about the seizure of articles by the

I.O. as per seizure list Ext.2 and he has also proved his signature

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thereon. Learned counsel for the appellants contended that

neither P.W.6 nor P.W.24 has specifically stated about the

seizure of three nos. of Aska 40 bottles under seizure list Ext.2.

Such a contention cannot be attached with any importance since

their evidence as seizure witnesses has not been shattered or

discredited by the defence rather it is getting corroboration from

the evidence of the I.O.

It is argued by the learned counsel for the appellants

that during trial, the prosecution has not examined the Scientific

Officer Chunuram Murmu or any other officer who assisted him

during the spot inspection and detected and developed three

chance finger prints from the Aska 40 bottles. The liquor bottles

were not produced in Court during trial and the photo images of

chance prints marked as A, B and B-1 in a CD along with their

photo enlargements on the basis of which Finger Print

Examination Report (Ext.26) was prepared were also not

produced during trial and therefore, no importance is to be

attached to the findings recorded by the Director, State Finger

Print Bureau, Rasulgarh, Bhubaneswar in Ext.26. Learned

counsel for the State on the other hand argued that since spot

inspection by the scientific officials is not in dispute which is

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otherwise proved by oral as well as documentary evidence, non-

examination of such officials is immaterial.

The evidence of the I.O. (P.W.27) indicates that on

05.09.2014, after he apprehended the appellant Sk. Asif Alli at

Bhubaneswar along with accused Sk. Abid Ali (acquitted), they

were sent to Medical Officer, C.H.C., Manijanga for necessary

medical examination and opinion. The escort party produced the

medical examination reports, biological exhibits collected from

the appellants in sealed vials which were seized and then the

appellant Sk. Asif Alli and accused Sk. Abid Ali were arrested on

06.09.2014 and forwarded to Court on that very day, which

would be evident from the order sheet dated 06.09.2014. The

evidence of the I.O. and the case records further indicate that

the specimen finger prints of Sk. Asif Alli and other accused

persons were collected and the I.O. made requisition to S.P.,

Jagatsingpur through FPSI, DFSL, Jagatsinghpur to send the

chance finger prints collected from Aska 40 bottles which were

transferred to a CD along with specimen ten digit finger print

slips of the suspects including the appellant Sk. Asif Alli to the

Director, State Finger Print Bureau, Rasulgarh, Bhubaneswar for

necessary examination and opinion and accordingly, the same

were dispatched through FPSI, Jagatsinghpur and the report

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(Ext.26) goes against the appellant Sk. Asif Alli. Non-

examination of Scientific Officer who detected and developed

chance finger prints and non-production of Aska 40 bottles in

Court during trial cannot be a ground to discard the evidenciary

value of Ext.26. No suggestion has been given by the defence to

the I.O. that there was no seizure of Aska 40 bottles from the

spot. Photo images of chance prints along with their photo

enlargements including CD and specimen finger prints are very

much available on record and those are part and parcel of

Ext.26, which indicates that the chance print marked as Ext.'B'

said to have been detected on Aska 40 liquor bottle tallied with

specimen print marked Ext.'X' said to be the right index finger

print of the appellant Sk. Asif Alli.

In the case of Phool Kumar (supra) on which

reliance was placed by the learned counsel for the State, it is

held that the clinching evidence against the appellant was his

thumb impression on the kunda of the cash box. It was

conclusively proved to be his on the opinion of the expert. The

report of the expert was used as evidence by the prosecution

without examining him in Court. Neither the Court thought it fit

nor the prosecution or the accused filed any application to

summon and examine the expert as to the subject matter of his

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report. The Court was bound to summon the expert if the

accused would have filed any such application for his

examination. That not having been done, the grievance of the

appellant apropos the report of the expert being used without his

examination in Court had no substance.

The examination of expert is crucial especially if

reliance is placed on the finger print report to suspect the guilt of

the accused. The I.O. has stated that the Scientific Officer, DFSL

finger print and team collected the finger prints of three accused

persons from the Sub-Jail, Jagatsinghpur after obtaining the

order of the Court. Specific questions have been put to the

appellant Sk. Asif Alli in the accused statement relating to

detection of Aska 40 liquor bottles during spot visit, visit of

scientific team of SFSL, Rasulgarh and staff of DFSL,

Jagatsinghpur to the spot and seizure of three numbers of Aska

40 bottles as per seizure list, but the appellant simply answered

that he could not say. Ext.26 has been marked on admission. No

application was filed from the side of accused persons to

summon the Scientific Officer or expert for his examination.

Therefore, non-examination of the Scientific Officer or the expert

who prepared the report cannot be a ground not to give

importance to Ext.26. It is correct that inadvertently no direct

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question has been put to the appellant Sk. Asif Alli on the finding

of Ext.26 in the accused statement, but it has been held by the

Hon'ble Supreme Court in the case of Paramjeet Singh (supra)

that the provisions of
section 313
of Cr.P.C. make it obligatory

for the Court to question the accused on the evidence and

circumstances against him so as to offer him an opportunity to

explain the same, but, it would not be enough for the accused to

show that he has not been questioned or examined on a

particular circumstance, instead he must show that such non-

examination has actually and materially prejudiced him and has

resulted in the failure of justice. In other words, in the event of

an inadvertent omission on the part of the Court to question the

accused on any incriminating circumstance cannot ipso facto

vitiate the trial unless it is shown that some material prejudice

was caused to the accused by the omission of the Court.

In the case of Nar Singh (supra), contention was

raised from the side of the appellant that since Ballistic Expert

opinion was not put to the appellant in his statement recorded

under
section 313
of Cr.P.C., it must be completely excluded

from consideration. The Hon'ble Court held that when the trial

Court is required to act in accordance with the mandatory

provisions of
section 313
of Cr.P.C., failure on the part of the

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trial Court to comply with the mandate of the law, cannot

automatically enure to the benefit of the accused. Any omission

on the part of the Court to question the accused on any

incriminating circumstance would not ipso facto vitiate the trial,

unless some material prejudice is shown to have been caused to

the accused. It was further held that in so far as non-compliance

of mandatory provisions of
section 313
of Cr.P.C., it is an error

essentially committed by the learned Sessions Judge. Since

justice suffers in the hands of the Court, the same has to be

corrected or rectified in the appeal. The question whether a trial

is vitiated or not depends upon the degree of the error and the

accused must show that non-compliance of
section 313
of

Cr.P.C. has materially prejudiced him or is likely to cause

prejudice to him. Merely because of defective questioning under

section 313
of Cr.P.C., it cannot be inferred that any prejudice

had been caused to the accused, even assuming that some

incriminating circumstances in the prosecution case had been left

out. When prejudice to the accused is alleged, it has to be shown

that accused has suffered some disability or detriment in relation

to the safeguard given to him under
section 313
of Cr.P.C. Such

prejudice should also demonstrate that it has occasioned failure

of justice to the accused. The burden is upon the accused to

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prove that prejudice has been caused to him or in the facts and

circumstances of the case, such prejudice may be implicit and

the Court may draw an inference of such prejudice. Facts of each

case have to be examined to determine whether actually any

prejudice has been caused to the appellant due to omission of

some incriminating circumstances being put to the accused.

Whenever a plea of non-compliance of
section 313
of Cr.P.C. is

raised, it is within the powers of the appellate Court to examine

and further examine the convict or the counsel appearing for the

accused and the said answers shall be taken into consideration

for deciding the matter. If the accused is unable to offer the

appellate Court any reasonable explanation of such

circumstance, the Court may assume that the accused has no

acceptable explanation to offer. In the facts and circumstances of

the case, if the appellate Court comes to the conclusion that no

prejudice was caused or no failure of justice was occasioned, the

appellate Court will hear and decide the matter upon merits.

It is pertinent to note that live link was provided to

the jail where the appellants were lodged and they were

provided opportunity to see the entire hearing proceeding. One

learned State Counsel from the District Court also remained

present with them throughout the proceeding as per our

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direction to explain them the argument advanced and

interactions between the Bench and the learned counsel for the

respective parties. During course of hearing, when we expressed

our willingness to provide an opportunity to the appellant Sk.

Asif Alli to explain the finding of Ext.26 against him by way of

recording additional accused statement under
section 313
of

Cr.P.C., if he so desires, the learned counsel for the appellants

after taking instruction was reluctant to avail such opportunity.

In the case in hand, the defence has not disputed the

visit of scientific team to the spot, the seizure of Aska 40 liquor

bottles from the spot on being produced by the Scientific Officer,

the detection and development of chance finger prints from such

bottles, the collection of specimen ten digit finger prints of the

appellant Sk. Asif Alli from jail and its dispatch to State Finger

Print Bureau, Bhubaneswar for examination. In fact, the same

has been proved through oral as well as documentary evidence.

The learned counsel for the appellant has failed to show as to

what material prejudice was caused to the appellant by the

omission of the Court to put direct question on Ext.26.

In view of the foregoing discussions, when chance

finger prints were detected and developed from the three Aska

40 liquor bottles found at the spot and one chance print marked

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'B' tallied with specimen right index finger print of the appellant

Sk. Asif Alli and there is no suspicious feature in it, the

prosecution can be said to have proved the fifth circumstance

against the appellant Sk. Asif Alli beyond all reasonable doubt. It

cannot be lost sight of the fact the Aska 40 liquor bottles were

found at the spot which was inside the bunker of the house of

Sk. Khairuddin where the wearing apparels of the deceased

which were identified by the informant (P.W.7) so also the dead

body of the deceased was found in a naked condition on the Taza

of the underground room which is a very clinching evidence

against the appellant Sk. Asif Alli.

Sixth Circumstance : Conduct of the appellant Sk. Asif Alli

in absconding from the village after occurrence:

18. The occurrence in question took place on 21.08.2014

in the afternoon and as already discussed under the heading of

fourth circumstance that the appellant Sk. Asif Alli was found

leaving the village Manu Mohalla in a Hero Honda Activa Scooty

with two co-accused persons on the same day at about 6.00

p.m. The Investigating Officer (P.W.27) has stated that on

22.08.2014, only appellant Sk. Akil Alli was apprehended by the

local people and was arrested by him in the occurrence night,

but when he searched for the other accused persons inside the

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village, they were found absent. The I.O. has further stated that

as per the direction of the S.P., Jagatsinghpur, a special team

was formed to apprehend the accused persons and raid was

conducted at different places. On 05.09.2014 at about 3.00

p.m., the appellant Sk. Asif Alli so also the co-accused Sk. Abid

Alli (acquitted) were apprehended at Bhubaneswar by the I.O.

and they were brought to Tirtol police station. Specific question

has been put to the appellant regarding his apprehension at

Bhubaneswar in the accused statement but he simply answered

he did not know.

The evidence has come on record through the I.O.

that the appellant Sk. Asif Alli was an accused in a case of

murder in connection with Tirtol P.S. Case No.197 of 2011.

Another case under
section 307
of the I.P.C. was instituted

against him in connection with Tirtol P.S. Case No.89 of 2014 in

which he was forwarded to Court and released on bail on

20.08.2014 i.e. the previous day of the occurrence.

The conduct of the appellant Sk. Asif Alli in

absconding away from his village on the date of occurrence till

he was apprehended by the I.O. was a circumstance duly proved

by the prosecution against him. No explanation has been

rendered by the appellant in regard to his absence from his

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village and he was not available to the police in spite of their

best efforts to trace him. Thus, the sixth circumstance relating to

the conduct of the appellant in absconding from his village has

been duly proved by the prosecution and this absconding of the

appellant along with other incriminating circumstances as proved

by the prosecution goes a great way to point his culpability.

Summed up : Circumstances against appellant Sk. Asif Alli

@ Md. Asif Iqbal:

19. All the sixth circumstances which are appearing

against the appellant Sk. Asif Alli as discussed above, are of a

conclusive nature and have been fully established by the

prosecution. The facts established are consistent with the

hypothesis of guilt of the appellant and it is not explainable

under any of the hypothesis except that the appellant is guilty.

The chain of evidence is so complete that it does not leave any

reasonable ground for the conclusion consistent with innocence

of the appellant rather when the circumstances are collectively

considered, the same lead only to the irresistible conclusion that

the appellant is the perpetrator of the crime in question.

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Charges proved against appellant Sk. Asif Alli @ Md. Asif

Iqbal:

20. In my humble view, the prosecution has established

the charge under
section 302
of the I.P.C. against the appellant

Sk. Asif Alli particularly in view of the oral evidence adduced by

the witnesses relating to the manner in which the body of the

deceased was found in the Taza of the house of Sk. Khairuddin,

the inquest report so also the post mortem report findings.

The prosecution has also proved through the

evidence of the doctor (P.W.25) who conducted post mortem

examination and the oral evidence of the witnesses regarding the

manner in which the body of the deceased was found in a naked

condition with multiple injuries on different parts of the body

including genital area that the appellant has not only committed

an offence of rape on the deceased but in course of such

commission, he inflicted the injuries which resulted in the death

of the deceased and therefore, the learned trial Court has rightly

found the appellant guilty under
section 376-A
of the I.P.C.

So far as the charge under
section 376-D
of the

I.P.C. which relates to commission of gang rape is concerned,

since one of the accused, who faced trial, namely, Sk. Abid Alli

has been acquitted by the learned trial Court and appellant Sk.

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Akil Alli has been acquitted by virtue of this judgment, it would

not be proper to convict the appellant under
section 376-D
of the

I.P.C.

Coming to the charge under
section 6
of the POCSO

Act which deals with punishment for aggravated penetrative

sexual assault defined under
section 5
of the said Act, the

ingredients of the offence can be satisfied if someone, inter alia,

commits penetrative sexual assault on a child below twelve

years. 'Penetrative sexual assault' has been defined under

section 3
of the said Act and in view of the evidence of the

doctor (P.W.25), I am of the view that the necessary ingredients

are satisfied. So far as the age of the deceased is concerned, the

evidence of P.W.14, the Principal of Kalinga Public School,

Krishnanandapur where the deceased was prosecuting her

studies as a student of L.K.G. indicates that her date of birth was

16.03.2008 as per the school admission register which was

seized by the police during investigation and left in the zima of

P.W.14. The original birth certificate of the deceased was seized

by the I.O. as per seizure list Ext.10 on 09.09.2014 on being

produced by the uncle of the deceased and it also reflects the

date of birth of the deceased to be 16.03.2008. Since the

occurrence in question took place on 21.08.2014, the

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prosecution has proved that the deceased was a child below

twelve years. The learned counsel for the appellant has not

challenged the evidence relating to the age of the deceased.

Therefore, the prosecution has successfully established the

charge under
section 6
of the POCSO Act against the appellant

Sk. Asif Alli.

21. In view of the foregoing discussion, I am of the view

that the prosecution has failed to establish the charge under

section 376-D
of the I.P.C. against the appellant Sk. Asif Alli and

accordingly, he is acquitted of such charge, however he is found

guilty under
sections 302
/
376-A
of the I.P.C. and
section 6
of the

POCSO Act.

Sentence:

22. The learned trial Court has awarded life

imprisonment for the offence under
section 376-A
of the I.P.C.,

which shall mean imprisonment for the remainder of his natural

life. This section gives a discretion to the Court to impose

punishment with rigorous imprisonment for a term which shall

not be less than twenty years, but which may extend to

imprisonment for life, which shall mean for imprisonment for the

remainder of that person's natural life, and with fine or with

death. In view of the age of the deceased at the time of

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occurrence and the manner in which rape has been committed

which ultimately caused the death of the deceased, I am of the

view that the sentence awarded by the learned trial Court for

such offence is perfectly justified and no interference is called for

with the same.

The learned trial Court has rightly not imposed any

sentence for the conviction of the appellant Sk. Asif Alli for the

charge under
section 6
of the POCSO Act in view of
section 42
of

the said Act.

23. So far as the the offence under
section 302
of the

I.P.C. is concerned, the learned trial Court has awarded death

sentence to the appellant Sk. Asif Alli and ordered that he be

hanged by neck till he is dead.

The only question that now remains to be decided is

whether this case falls in the category of rarest of rare case,

justifying capital punishment. The learned Hon'ble Supreme

Court in several judgments has awarded capital punishment,

where rape and murder have been committed on a minor girl,

after striking a balance between the aggravating and mitigating

circumstances. Several other factors like the young age of the

accused, the possibility of reformation, lack of intention to

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murder consequent to rape etc. have also gone into judicial

mind.

It seems that on the date of pronouncement of order

of conviction i.e. on 29.11.2022, hearing on the question of

sentence was made and death sentence was awarded. The

learned trial Court after noting down the principles rendered by

the Hon'ble Supreme Court in different cases relating to

awarding of death sentence, has been pleased to hold that the

deceased was a minor victim aged about six years and the

offences are serious and heinous in nature and against the

norms of a healthy society. The act reveals a dirty and perverted

mind of human being who has no control over his carnal desires.

The number of injuries found on the deceased show that she was

mercilessly ravished and killed to satisfy the carnal desires. The

learned trial Court also took into account the criminal

background of the appellant as he was involved previously not

only in a case under
section 302
of the I.P.C. but also in another

case under
section 307
of the I.P.C. and was released on bail on

20.08.2014 and committed the offence in the present case on

the very next day. The learned trial Court held that there was no

chance of reformation of the appellant in the near future. The

deceased was well known to the appellant as he was a co-

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villager and the deceased was taken away with deliberate

intention in an ill mind in order to commit rape and murder,

which comes within the category of rarest of rare case

warranting capital punishment to meet the ends of justice. The

learned trial Court further held that imposition of capital

punishment on the appellant would be an example for other

wrongdoers of similar nature in the society, which is necessitated

in order to protect and safeguard the female children's interest in

the country and accordingly, imposed death sentence on the

appellant.

During course of argument, on 30.04.2024 learned

counsel for the appellants argued that passing of death sentence

on the date of conviction by the learned trial Court was not

justified. The learned counsel for the State brought to the notice

of the Court the decision of the Hon'ble Supreme Court rendered

in the case of Sundar @ Sundarrajan -Vrs.- State by

Inspector of Police reported in 2023 LiveLaw (SC) 217.

After going through the ratio laid down in the said decision, we

deemed it proper to call for a report to the Superintendent of

Circle Jail, Choudwar, Cuttack regarding (i) conduct of the

appellants in jail; (ii) information on appellants' involvement in

any other case; (iii) details of the appellants acquiring education

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in jail and (iv) details of appellants' medical records. On

02.05.2024, after considering the submission of the learned

counsel for the appellants so also the learned counsel for the

State, this Court took suo motu cognizance of the fact regarding

the procedure followed by the trial Court at the time of hearing

on sentence. Taking into account various decisions of the Hon'ble

Supreme Court on the point, we were of the view that there was

no proper and meaningful hearing on the question of sentence

which was necessary in order to do complete justice. We also

held that no opportunity was afforded to the appellants to submit

any material in support of mitigating circumstances during

course of hearing on the question of sentence. After observing

that hearing on the question of sentence has to be real and

effective and not a mere formality and that if a meaningful

hearing was not taken up by a Court while considering the

sentence imposed and inflicted upon the convict, it would cause

serious prejudice to him, we afforded an opportunity to the

appellants inviting from them such data to be furnished in the

shape of affidavits and also directed the Jail Authority to do the

needful in that regard. We directed the Senior Superintendent,

Circle Jail, Cuttack at Choudwar to collect all the information on

the past life of the convicts, psychological conditions and their

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conduct post- conviction obtaining reports accordingly by taking

service and necessary assistance from the Probation Officer and

such other officers including a Psychologist or Jail Doctor or any

Medical Officer attending the prison.

In pursuance of such order, the mother of the

appellant filed an affidavit dated 09.05.2024 indicating therein

that at the time of occurrence, his son was working in an auto

garage as a colour mistri and the entire family depended on the

income of the appellant, who was a young boy aged about

twenty five years at the time of occurrence and though he has

got previous criminal antecedents but he has no previous

conviction. It is further stated in the affidavit that during

incarceration, her son had reformed and he should be

rehabilitated to the extent that he could live in the society.

As per the order dated 02.05.2024, the learned

Additional Government Advocate also produced the social reports

of both the appellants submitted by the Regional Probation

Officer, Cuttack, Psychological condition reports of both the

appellants submitted by Psychiatrist, Circle Jail, Cuttack at

Choudwar and present conduct and behaviour inside the Circle

Jail, Cuttack at Choudwar from Senior Superintendent, Circle

Jail, Cuttack at Choudwar. The Regional Probation Officer in his

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report dated 08.05.2024 has stated that he met the mother of

the appellant Sk. Asif Alli, who was aged about sixty three years

and ascertained from her that the appellant was the eldest son of

the family and was working as a labourer in a private shop

(radium work), Mumbai for his livelihood to maintain the family.

The family of the appellant has got no landed property and the

mother of the appellant was suffering from eye sight problem

and psychological imbalance after the death of her husband. The

two sisters of the appellant are unmarried and stated that their

marriage proposal could not be settled due to non-acceptance of

their family in the society. It is observed that the family have no

means to face the situation in the village and the family is

struggling for the livelihood as there is no earning member in the

family and they are remaining in fear psychosis and the mother

of the appellant is behaving irrationally with unsettled mind. So

far as education background of the appellant is concerned, he

passed matriculation in third division in the year 2010 and the

school leaving certificate reflects good in character/conduct

during his school days and he had no adverse report as per the

school report. The appellant was a good cricket and football

player and after matriculation, he discontinued his higher studies

due to financial problems as reported by his family members. So

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far as social life and past life of the appellant is concerned, it

appears that prior to the offence in question, the appellant was

involved in seven cases, out of which in three cases, he has been

acquitted. The villagers and village committee members

expressed their displeasure against the appellant for his criminal

act and they were very disgusted, aggravated and grudged

towards the appellant and therefore, the life of the appellant is in

danger in his village. The villagers are not providing any support

to the family of the appellant for which the family members are

suffering a lot. The Senior Superintendent, Circle Jail, Cuttack at

Choudwar has submitted a report wherein it is mentioned that

the conduct and behaviour of the appellant inside prison at

present is normal, his behaviour and attitude towards other co-

prisoners as well as the staff is cordial. He is maintaining every

discipline of jail administration and there is no adverse report

against him during his entire period of confinement in prison. No

prison offence was committed by the appellant inside the jail

during the period of his imprisonment. The Psychiatrist, Circle

Jail, Cuttack at Choudwar has given a report relating to the

psychological condition of the appellant wherein it is mentioned

that the appellant is doing his daily routine activities properly,

offering prayer to God many times in a day and coping with the

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co-inmates well and regarding the sentence, the appellant is

ready to accept his punishment as he has surrendered before the

God. On mental status examination, mild degree of anxiety was

noticed and no other mental abnormality was detected and on

surrendering before the God, the appellant was able to keep the

mental state in balance. The Senior Superintendent, Circle Jail,

Cuttack at Choudwar has also reported that the conduct of the

appellant inside the jail is normal and he has not acquired any

further education in jail after his admission to jail.

The learned counsel for the appellants placed reliance

in the case of Shankar Kisanrao Khade (supra), wherein

Hon'ble Justice K.S. Radhakrishnan (as His Lordship then was)

held as follows:

"28......In my considered view that the tests that
we have to apply, while awarding death
sentence, are "crime test", "criminal test" and
the R-R Test and not "balancing test". To award
death sentence, the "crime test" has to be fully
satisfied, that is 100% and "criminal test" 0%,
that is no mitigating circumstance favouring the
accused. If there is any circumstance favouring
the accused, like lack of intention to commit the
crime, possibility of reformation, young age of
the accused, not a menace to the society no
previous track record etc., the "criminal test"

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may favour the accused to avoid the capital
punishment. Even, if both the tests are satisfied
that is the aggravating circumstances to the
fullest extent and no mitigating circumstances
favouring the accused, still we have to apply
finally the Rarest of Rare Case test (R-R lest). R-
R Test depends upon the perception of the
society that is "society centric" and not "Judge
centric" that is, whether the society will approve
the awarding of death sentence to certain types
of crimes or not. While applying that test, the
Court has to look into variety of factors like
society's abhorrence, extreme indignation and
antipathy to certain types of crimes like sexual
assault and murder of minor girls intellectually
challenged, suffering from physical disability, old
and infirm women with those disabilities etc.
Examples are only illustrative and not
exhaustive. Courts award death sentence since
situation demands so, due to constitutional
compulsion, reflected by the will of the people
and not the will of the Judges.
xx xx xx xx xx

38. Therefore, the mere pendency of few
criminal cases as such is not an aggravating
circumstance to be taken note of while awarding
death sentence unless the accused is found
guilty and convicted in those cases. High Court
was, therefore, in error in holding that those are

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relevant factors to be considered in awarding
appropriate sentence."

In the said case, even though the victim was a minor

girl aged about 11 years, intellectually challenged and the

accused repeatedly raped the girl for few days, ultimately

strangulated her to death and the Hon'ble Justice K.S.

Radhakrishnan held that both 'crime test' and 'criminal test' are

independently satisfied against the accused, but considering the

entire facts and circumstances of the case, the death sentence

awarded to the accused was converted to rigorous imprisonment

for life. Hon'ble Justice Madan B. Lokur (as His Lordship then

was) also agreed with such view.

Now the decisions cited by the learned counsel for

the State on death penalty are to be discussed. In the case of

Ravi (supra), Hon'ble Justice Surya Kant speaking for himself

and for Justice R.F. Nariman (as His Lordship then was) held as

follows:-

"62. In the light of above discussion, we are of
the considered opinion that sentencing in this
case has to be judged keeping in view the
parameters originating from Bachan Singh and
Machhi Singh cases and which have since been
strengthened, explained, distinguished or
followed in a catena of subsequent decisions,

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some of which have been cited above. Having
said that, it may be seen that the victim was
barely a two-year old baby whom the appellant
kidnapped and apparently kept on assaulting
over 4-5 hours till she breathed her last. The
appellant who had no control over his carnal
desires surpassed all natural, social and legal
limits just to satiate his sexual hunger. He
ruthlessly finished a life which was yet to bloom.
The appellant instead of showing fatherly love,
affection and protection to the child against the
evils of the society, rather made her the victim
of lust. It is a case where trust has been
betrayed and social values are impaired. The
unnatural sex with a two-year old toddler
exhibits a dirty and perverted mind, showcasing
a horrifying tale of brutality. The appellant
meticulously executed his nefarious design by
locking one door of his house from the outside
and bolting the other one from the inside so as
to deceive people into believing that nobody was
inside. The appellant was thus in his full senses
while he indulged in this senseless act. The
appellant has not shown any remorse or
repentance for the gory crime, rather he opted
to remain silent in his 313
Cr.P.C
. statement. His
deliberate, well-designed silence with a standard
defence of 'false' accusation reveals his lack of
kindness or compassion and leads to believe

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that he can never be reformed. That being so,
this Court cannot write of the capital punishment
so long as it is inscribed in the statute book."

Hon'ble Justice R. Subhash Reddy (as His Lordship

then was) dissented on the question of sentence and held as

follows:-

"76. In this case, learned counsel for the
appellant has contended that the trial Court as
well as the High Court, fell in error in confining
nature and brutality of crime alone, to award the
sentence of death. It is submitted that nature of
crime alone is not sufficient to impose the
sentence of death, unless State proves by
leading cogent evidence that the convict is
beyond reform and rehabilitation. It is submitted
that the socio-economic conditions of the convict
and the circumstances under which crime is
committed are equally relevant for the purpose
of considering whether a death penalty is to be
imposed or not. It is submitted that as the case
on hand, rests on circumstantial evidence, same
is also the ground not to impose capital
punishment, of death.
xx xx xx xx xx

98. I am clear in my mind that in this case on
hand, the mitigating circumstances of the
appellant, dominate over the aggravating

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circumstances, to modify the death sentence to
that of life imprisonment. Even as per the case
of prosecution, the appellant was under
influence of liquor at the time of committing the
offence, and there is no evidence on record from
the side of prosecution, to show that there is no
possibility of reformation and rehabilitation of
the Appellant. Further, age of the appellant was
25 years at the relevant time and conviction is
solely based on circumstantial evidence. Taking
all such aspects into consideration, the death
penalty imposed on the appellant is to be
modified to that of life imprisonment, for the
offence under
section 302
Indian Penal Code."
In the case of Manoharan (supra), Hon'ble Justice

R.F. Nariman (as His Lordship then was) speaking for himself

and for Justice Surya Kant held as follows:-

"34. In the circumstances, we have no doubt
that the trial Court and High Court have
correctly applied and balanced aggravating
circumstances with mitigating circumstances to
find that the crime committed was cold-blooded
and involves the rape of a minor girl and murder
of two children in the most heinous fashion
possible. No remorse has been shown by the
appellant at all and given the nature of the crime
as stated in paragraph 84 of the High Court's
judgment it is unlikely that the appellant, if set

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free, would not be capable of committing such a
crime yet again. The fact that the appellant
made a confessional statement would not, on
the facts of this case, mean that he showed
remorse for committing such a heinous crime.
He did not stand by this confessional statement,
but falsely retracted only those parts of the
statement which implicated him of both the rape
of the young girl and the murder of both her and
her little brother. Consequently, we confirm the
death sentence and dismiss the appeals."

Hon'ble Justice Sanjiv Khanna dissented on the

question of sentence and held as follows:-

"44. The expression 'rarest of rare' literally
means rarest even in the rare, i.e. a rarest case
of an extreme nature. The expression and the
choice of words, means that punishment by
death is an extremely narrow and confined rare
exception. The normal, if not an unexceptional
rule, is punishment for life, which rule can be
trimmed and upended only when the award of
sentence for life is unquestionably foreclosed.
Thus, capital punishment is awarded and
invoked only if the facts and material produced
by the prosecution disdainfully and fully
establish that the option of imprisonment for life
will not suffice and is wholly disproportionate

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and therefore the case belongs to the 'rarest of
rare' category.
xx xx xx xx xx
55. When we come to the facts of the present
case, one has to but agree that the offence or
the crime was brutal, ruthless and cruel as two
innocent children aged 7 to 10 lost their lives,
and there is substantial medical and other
evidence to show that the young girl was
mercilessly sexually abused and raped by the
Appellant and Mohanakrishnan (since deceased).
Thereafter the children were administered
poison and thrown into a canal to die. The pain
and trauma suffered by the small children who
were not at fault and the agony of the parents
and grandmother are immense, incalculable and
would remain forever. The punishment must be
severe. Yet to award death penalty we must
examine and answer the second question, i.e.
balance out the aggravating circumstances by
giving weightage to the mitigating circumstances
and decide whether punishment of life
imprisonment is foreclosed. Then and then alone
the case would fall under the 'rarest of rare'
category. While doing so, we should account for
the majority dictum in V. Sriharan (supra) that
where life imprisonment is considered to be
disproportionate or inadequate, then the Court
may direct sentence for life imprisonment,

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without any right to remission i.e. imprisonment
for the entire course of life with no recourse to
remission, subject to the power that may be
exercised under
Articles 72
and
of the
Constitution.
xx xx xx xx xx
73. The appellant's partial retraction has been
rightly disbelieved for good reasons, including
the statement of the appellant under
Section
Cr.P.C. in the Court accepting and admitting
that his confession was recorded by the
Magistrate. The retraction by itself, I would
observe, should not be treated as absence of
remorse or repentance, albeit an afterthought or
on advice propelled by fear that the appellant in
view of his admission may face the gallows, and
that the earlier confession made seeking
forgiveness would be the cause of his death. A
thought of doubt and attempt to retract had
surfaced on account of belief that the sense of
remorse, repentance and forgiveness would not
be appreciated and given due regard, cannot be
ruled out. Benefit in this regard must go to the
Appellant.

74. The other mitigating factors in favour of the
appellant are his young age, he was 23 years of
age at the time of occurrence and he belongs to
a poor family. He has aged parents and is a
first-time offender as recorded in the

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judgment/order of the trial court. Further, the
appellant Manoharan was not initially involved in
the abduction and kidnapping of the children. He
was not the mastermind. Mohanakrishnan (since
deceased) had thought, conceived and had
single-handedly executed the plan to abduct the
children. The appellant did join him thereafter
and was with Mohanakrishnan (since deceased).
Subsequently the devil in Mohanakrishnan (since
deceased) took over and he sexually assaulted
and raped the small girl, while the appellant
kept quiet. Later the appellant too sexually
assaulted and committed rape. Thereupon,
poison was administered to the children before
throwing them into the canal. The offence
committed was heinous and deplorable.

75.......In view of the aforesaid discussion and on
balancing aggravating and mitigating
circumstances, in my opinion, the present case
does not fall under the category of 'rarest of
rare' case i.e. there is no alternative but to
impose death sentence. It would fall within the
special category of cases, where the appellant
should be directed to suffer sentence for life i.e.
till his natural death, without
remission/commutation under
sections 432
and
Code of Criminal Procedure. To this extent, I
would allow the appeal."

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In the case of Laxman Naik (supra), the Hon'ble

Supreme Court held that the extreme penalty can be inflicted

only in gravest cases of the extreme culpability and in making

choice of the sentence, in addition to the circumstances of the

offender also. Having regard to these principles with regard to

the imposition of the extreme penalty, it may be noticed that

there are absolutely no mitigating circumstances in the case. The

appellant seems to have acted in a beastly manner as after

satisfying his lust, he thought that the victim might expose him

for the commission of the offence of forcible rape on her to the

family members and other, the appellant with a view to screen

the evidence of his crime also put an end to the life of innocent

girl who had seen only seven summers. The evidence on record

is indicative of the fact as to how diabolically the appellant had

conceived of his plan and brutally executed it and such a

calculated, cold blooded and brutal murder of a girl of a very

tender age after committing rape on her would undoubtedly fall

in the category of rarest of the rare case attracting no

punishment other than the capital punishment.

In the case of Dhananjoy Chatterjee (supra), the

Hon'ble Supreme Court held that the object of sentencing should

be to see that the crime does not go unpunished and the victim

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of crime as also the society has the satisfaction that justice has

been done to it. In imposing sentences, in the absence of specific

legislation, Judges must consider variety of factors and after

considering all those factors and taking an overall view of the

situation, impose sentence which they consider to be an

appropriate one. Aggravating factors cannot be ignored and

similarly mitigating circumstances have also to be taken into

consideration. It is further held that the measure of punishment

in a given case must depend upon the atrocity of the crime; the

conduct of the criminal and the defenceless and unprotected

state of the victim. Imposition of appropriate punishment is the

manner in which the courts respond to the society's cry for

justice against the criminals. Justice demands that courts should

impose punishment fitting to the crime so that the courts reflect

public abhorrence of the crime. The courts must not only keep in

view the rights of the criminal but also the rights of the victim of

crime and the society at large while considering imposition of

appropriate punishment.

In the case of Santosh Kumar Satishbhushan

Bariyar -Vrs.- State of Maharashtra reported in (2009) 6

Supreme Court Cases 498, it is held that life imprisonment

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can be said to be completely futile, only when the sentencing

aim of reformation can be said to be unachievable.

Keeping in view the ratio laid down in the decisions

discussed above, it is borne out of record that the offence was

committed against a girl child aged about six years in a most

horrendous, devilish and barbaric manner, but the case is based

on circumstantial evidence and there is no material on record

that the crime was committed in a pre-planned manner. It

seems that both the appellants noticed the deceased in the

company of his cousin brother (P.W.17) while they were

returning after purchasing chocolates and then the deceased was

lifted away and she was subjected to rape during course of which

she sustained injuries on different parts of her body and her

death was due to shock and haemorrhage as a result of injuries

to genital track which were fatal in ordinary course of nature. No

harm has been caused to P.W.17 while lifting away the deceased

even though the appellants must have been aware that P.W.17 is

likely to disclose about their misdeeds before the family

members and others. The post mortem report (Ext.19) does not

indicate any specific method was applied by the culprit for

committing the death of the deceased. Though the appellant has

got criminal antecedents but he has not been found guilty in

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those cases rather he has been acquitted in three cases as would

be evident from the social report submitted by Regional

Probation Officer, Cuttack. Therefore, the mere pendency of

criminal cases cannot be considered as relevant factors for

awarding death sentence in view of the ratio laid down by the

Hon'ble Supreme Court in the case of Shankar Kisanrao Khade

(supra). The date of birth of the appellant as per the report

submitted by Regional Probation Officer, Cuttack is 13.03.1989

and therefore, he was aged about 26 years as on the date of

occurrence. He is a family man and having old mother aged

about 63 years and two unmarried sisters and he was the sole

bread earner of his family and working as a colour mistri in

Mumbai and the financial condition of the family is not good. His

character and conduct was good in school and he has passed

matriculation in the year 2010. He could not continue his higher

studies due to financial problems in the family. He was a good

cricket and football player during his teen age. Even though he is

in judicial custody for about ten years, but the reports submitted

by Jail Superintendent and the Psychiatrist indicate that his

conduct and behaviour inside prison is normal, his behaviour

towards co-prisoners as well as staff is cordial and he is

maintaining every discipline of the jail administration. Neither

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there is any adverse report against him during the entire period

of confinement nor he has committed any prison offence. He is

offering prayer to God many times in a day and he is ready to

accept the punishment as he has surrendered before God.

The punishment should not be disproportionately

great is a corollary of just deserts and it is dictated by the same

principle that does not allow punishment of the innocent, for any

punishment in excess of what is deserved for the criminal

conduct is punishment without guilt. There is no cogent evidence

that the appellant is beyond reform and rehabilitation.

Considering the entire facts and circumstances, the aggravating

circumstances and mitigating circumstances, it cannot be said

that capital punishment is the only option for the appellant and

that the option of imprisonment for life will not suffice and is

wholly disproportionate.

In view of the foregoing discussions, I am inclined to

commute the death sentence awarded to the appellant for the

offence under
section 302
of the I.P.C. to life imprisonment,

which shall mean the remainder of his natural death, without

remission/commutation under
sections 432
and
Code of

Criminal Procedure.

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Victim Compensation:

24. The learned trial Court has awarded compensation of

Rs.1,50,000/- (rupees one lakh fifty thousand) to be paid to the

parents of the deceased. The State Government of Odisha in

exercise of powers conferred by the provisions of
section 357-A

of Cr.P.C. has formulated the Odisha Victim Compensation

Scheme, 2017. Schedule-II of the scheme deals with

compensation scheme for woman victims or survivors of sexual

assault or other crimes. In case of death (loss of life), the

minimum limit of compensation is Rs. 5 Lakh and the upper limit

of compensation is Rs.10 Lakh. In the factual scenario and

particularly taking into account the age of the deceased, the

maximum compensation amount i.e. Rs. 10,000,00/- (rupees ten

lakh) as provided under Schedule-II is awarded which is to be

paid to the father and mother of the deceased. If any

compensation amount has already been disbursed to the parents

of the deceased as per the order of the learned trial Court, the

same shall be adjusted and District Legal Services Authority,

Jagatsinghpur shall take immediate steps to pay the balance

amount of compensation within four weeks from today.

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Conclusion:

25. In view of the discussions, CRLA No.121 of 2023 filed

by the appellant Sk. Akil Alli is allowed. The conviction of the

appellant Sk. Akil Alli under
sections 302
/
376-A
/
376-D
of the

I.P.C. and
section 6
of the POCSO Act is hereby set aside and the

appellant is acquitted of all the charges. He shall be set at liberty

forthwith if his detention is not required in any other case.

CRLA No.120 of 2023 filed by appellant Sk. Asif Alli

@ Md. Asif Iqbal is allowed in part. The conviction of the

appellant Sk. Asif Alli @ Md. Asif Iqbal under
section 376-D
of

the I.P.C. is hereby set aside, however his conviction under

sections 302
/
376-A
of the I.P.C. and
section 6
of the POCSO Act

is upheld. The sentence of life imprisonment awarded by the

learned trial Court to the appellant Sk. Asif Alli @ Md. Asif Iqbal

for the offence under
section 376-A
of the I.P.C., which shall

mean imprisonment for the remainder of his natural life, stands

confirmed. No separate sentence is awarded to the appellant Sk.

Asif Alli @ Md. Asif Iqbal for his conviction under
section 6
of the

POCSO Act. The death sentence awarded to the appellant Sk.

Asif Alli @ Md. Asif Iqbal for the offence under
section 302
of the

I.P.C. is commuted to life imprisonment, which shall mean till his

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natural death, without remission/commutation under
sections
and
Code of Criminal Procedure.

Accordingly, Death Sentence Reference is answered

in negative.

Before parting with the case, I would like to put on

record my deep appreciation to Sk. Zafarulla, learned counsel for

the appellants for the preparation and presentation of the case

and assisting the Court in arriving at the decision above

mentioned. This Court also appreciates the extremely valuable

assistance provided by Mr. Bibhu Prasad Tripathy, learned Addl.

Govt. Advocate.

........................................
S.K. Sahoo, J.

R.K. Pattanaik, J. I agree.

....................................
R.K. Pattanaik, J.

Orissa High Court, Cuttack
The 20th June 2024/M.K.Rout/RKMishra/Sipun

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