The High Court · 2022

Judgment

-23.12.2022 Dr. S.K. Panigrahi, J.

1. The Appellant has preferred this appeal, challenging the judgment of conviction and order of sentence dated

18.12.2010 passed by the Learned Additional Sessions JCRLA No.2 of 2011 Page 1 of 29 Judge, Bhadrak in S.T Case No. 37/18 of 2010 arising out of G.R Case No. 940/09 of the court of the learned S.D.J.M., Bhadrak; convicting and sentencing him to undergo imprisonment for life under Sections 363/ 364/ 376(2)(f)/ 302/ 201 of the Indian Penal Code. I. FACTS OF THE CASE

2. The case of the prosecution, in brief, is that on 17.06.2009, there was a lagnadhar (ceremony before marriage) of the daughter of co-accused-Golak Jena. On that day, Sebati Jena (the wife of the informant-Panchanana Jena) had visited the house of co-accused Golak Jena along with her three daughters. While Jhuma was playing in front of the house of Golak Jena, Sebati Jena returned to her house along with two other daughters. On that day at about 4 P.M, the Informant-Panchanana Jena searched for Jhuma in front of the house of co-accused Golak Jena but Jhuma was not present there.

3. The Informant informed the villagers that Jhuma was missing and had not returned home. On the same day, Babaji Rout and Nrusingha Rout informed the Informant that they had seen the accused Kalia taking Jhuma towards the pump house of Ramakanta Pati near river Reba at about 5pm. After getting the said information, the Informant and the villagers searched for Jhuma and found her underwear JCRLA No.2 of 2011 Page 2 of 29 (“Chadi”) inside the pump house of Ramakanta Pati. However, the whereabouts of Jhuma could not be traced and the accused Kalia had absconded.

4. In the morning of 18.06.2009, Smt. Thaki Jena, the sister of the Informant informed over telephone that the accused Kalia had gone to her house and on being enquired, Kalia disclosed that he had committed rape and murder of Jhuma and had thrown her dead body in river Reba. Thaki Jena further informed that the accused Kalia was detained at her house. One Ranjan Panda and Anadi Nayak went to village Anderi and returned back with accused Kalia.

5. The accused Kalia confessed in presence of the villagers that on 17.06.2009, at about 5 P.M, he committed rape on deceased Jhuma at the pump house and committed her murder and threw her dead body at Baghuakona of river Reba with the help of co-accused Golak Jena and Patan Jena. Thereafter, the accused Kalia took the villagers to River reba and showed the dead body of Jhuma. At about 11 A.M, the Informant lodged the written report at the Police Station.

6. Based on such report, the IIC, Dhusuri P.S registered the case as Dhusuri P. S Case No.77 of 2009 dated 18.06.2009 and started the investigation. The Appellant was arrested on 18.06.2009 and after completion of investigation, he was JCRLA No.2 of 2011 Page 3 of 29 charge sheeted under Sections 363/364/376(2)(f)/302/201 of the Indian Penal Code. After the charge was framed, the trial was completed by the Learned Additional District & Sessions Judge, Bhadrak and the Appellant was convicted under Sections 363/364/376(2)(f)/302/201 of the Indian Penal Code and sentenced to undergo imprisonment for life. Hence, this appeal. II. SUBMISSION ON BEHALF OF THE APPELLANT

7. It is submitted by Learned Counsel for the Appellant that eyewitnesses’ account of P.W.9 & P.W.10 cannot be relied on up as they have been declared as hostile witnesses following material discrepancies in their deposition and testimony. Since, the genesis of last seen theory of the accused appellant with the deceased emanates from the evidence of P.W.9, the same is liable to be discredited as a result of him turning hostile.

8. The evidence of P.W.14, P.W.15, P.W.16 that the appellant confessed before them about committing the rape and

Legal Reasoning

murder of the deceased, suffers from major infirmities as P.W.15 had not deposed before the police that the accused appellant told her about committing the rape and death of the deceased “on her query “and P.W.16 had not stated before the Police the accused appellant made confession of having thrown the dead body in the river JCRLA No.2 of 2011 Page 4 of 29 Reba. Moreover, P.W.15 & 16 are the relatives of the informant and thus, are interested witnesses; hence, they are bound to depose against the accused appellant.

9. The extra-judicial confession made by the accused appellant was not made before the magistrate as required under Section 26 of the Evidence Act. Moreover, the evidence surrounding the extra-judicial confession of the accused suffers from material discrepancies as there is no similarity in the depositions and testimonies of prosecution witnesses and thus, the same cannot be attributed to the accused appellant. III. SUBMISSION ON BEHALF OF THE STATE

Legal Reasoning

10. Per Contra, it is contended by Learned Counsel for the State that the dead body of the deceased was recovered at the instance of the accused appellant from river Reba and this proves that the accused appellant had knowledge about the whereabouts of the deceased from the time she went missing.

11. It has been categorically deposed on behalf of P.W.9 that the deceased was last seen with the accused appellant on

17.06.2009 at about 5.00 P.M and the deceased was accompanying the accused appellant to the pump house of Ramakanta Pati. Subsequently, after the disappearance of the deceased, her underwear was seized from the exact JCRLA No.2 of 2011 Page 5 of 29 same spot where the deceased and the accused were last seen together. Moreover, the extra-judicial confession of the accused towards committing the rape and murder of the deceased in front of various villagers, in both Anderi and Hetampur, highlights his guilty intention and conduct. IV. COURT’S ANALYSIS AND REASONING

12. In order to prove the charges, the prosecution has examined as many as nineteen (19) witnesses. Out of them P.W 2, Panchanan Jena is the Informant and father of the deceased and P.W 13-Sebati Jena is the mother of the deceased. P.W 3-Anadi Nayak, P.W 11-Ranjan Panda, P.W 12-Batakrushna Jena, P.W 14-Smt. Thaki Jena, P.W 15-Smt. Basanti Jena and P.W16-Suka Jena are the witnesses to Extra Judicial confession made by the accused Kalia. P.W.8-Hrusikesh Rout, is witness to the inquest over the dead body of the deceased. P.W 9-Babaji Rout is the witness to have last seen the deceased alive along with the accused Kalia. P.W 10- Nrusingha Charan Rout had seen the deceased alive along with accused Kalia, but he did not support the prosecution case and turned hostile. P.W 1-Pagal Rout is the witness to the extra judicial confession made by the accused, but he did not support the prosecution case and turned hostile. P.W 5-Gadhadhara Khatua, is the scribe of the F.I.R, but he did not fully support the prosecution case and turned JCRLA No.2 of 2011 Page 6 of 29 hostile. P.W 7-Umakanta Tripathy, is the witness to the seizure of wearing apparel of accused Kalia but he did not fully support the prosecution case and turned hostile. P.W 4-Umakanta Jena is the witness to the extra judicial confession made by accused Kalia but he did not support the prosecution case and turned hostile. P.W 6-Kalandi Pati is the witness to the seizure of the wearing apparel of deceased Jhuma but he did not support the prosecution case and turned hostile. P.W 18-Dr. Dilip Kumar Samantaray conducted autopsy on the dead body of Jhuma. P.W 17-Narayan Chandra Nayak and P.W 19-Jagamohan Mohanty were the Investigating Officer in this case.

13. In a case involving murder, the primary point that arises for consideration is whether the death of the deceased was homicidal in nature. P.W.18 (the doctor) who conducted autopsy on the dead body of the deceased opined that the death was caused by Asphyxia and the time of death was within 48 hours of Post-mortem examination. He also opined that the death might be homicidal in nature though the lacerated injury found on the dead body was possible due to fall on hard and blunt surface and the type of Asphyxia was not specified. Even though nothing has been placed on record on behalf of P.W.18 to confirm that the death was homicidal in nature, the same cannot be JCRLA No.2 of 2011 Page 7 of 29 discarded as the time since death as opined by P.W.18 was duly corroborated with the time mentioned in the F.I.R. Moreover, the dead body of the deceased was recovered in a naked state from the river Reba and her undergarments were found nearby in the pump house of Ramakanta Pati. Since, Jhuma was a minor girl, it cannot be said that the reason surrounding her death could have been a result of accident where she drowned in the river and died due to Asphyxia. This possibility is highly improbable because the accused appellant had knowledge about the exact location of the dead body of the deceased and he even accompanied the villagers to the said location where they retrieved the body of the deceased. It is pertinent to mention that the deceased was 4 years old, and it cannot be reasonably expected of her to visit the riverbank in absence of her parents or any guardian. Therefore, it can be construed that the deceased was escorted to the riverbank and was taken away from the lawful guardianship of her parents and it is the only possible way through which the deceased reached the said location. The chemical examination report coupled the circumstantial evidence, and the mystery surrounding the sudden disappearance of the deceased from the courtyard of the co-accused Golak Jena points to the fact that the death of the deceased could not have been JCRLA No.2 of 2011 Page 8 of 29 possible due to accident. Rather, there is an extreme possibility that the death of the deceased could have been a result of homicide as it yields an additional link to the chain of circumstances and makes it more believable from an overview.

14. The second issue that needs to be considered is whether the accused appellant was the perpetrator or the author of the homicide. In the instant case, there are no eyewitnesses to the occurrence and therefore, the entire case of the prosecution is based upon circumstantial evidence. P.W.9 has categorically deposed that on the relevant day, at about 5 P.M, while returning to the village, he had seen the deceased accompanying the accused appellant towards the pump house of Ramakanta Pati. He further stated that he came to know about the missing of the deceased during the evening hour from P.W.10. After receiving information about the missing of the deceased, P.W.9 informed P.W.10 that he had seen the deceased accompanying the accused appellant at about 5 p.m, towards an agricultural land which was about 200 metres from the house of P.W.2(the father of the deceased). P.W.10 has categorically stated in his deposition that he heard halla and came to know about the missing of the deceased following which he informed the same to P.W.9. It is clear from the deposition of P.W.9 & JCRLA No.2 of 2011 Page 9 of 29 P.W.10 that P.W.10 had not witnessed the deceased accompanying the accused appellant to the pump house and he came to know about the said fact from P.W.9. Similarly, P.W.9 didn’t have knowledge about the missing of the deceased and came to know about this fact from P.W.10. Therefore, it can be ascertained that P.W.9 was only person who had seen the deceased with the accused appellant while they were going to the pump house of Ramakanta Pati. The ocular evidence rendered by P.W.9 that the deceased was last seen with the accused appellant while on their way to the pump house, is duly corroborated by the seizure of underwear of the deceased in the pump house of Ramakanta Pati. P.W.10 was declared hostile as he didn’t support the last seen theory of the prosecution. However, the hostility of P.W.10 doesn’t discredit the ocular evidence and last seen theory rendered by P.W.9 as in reality, P.W.10 had not seen the deceased in the company of the accused appellant; rather, he was informed about the same by P.W.9. Even though, P.W.9 was declared as hostile by the Learned Defence Counsel, he has fully supported the case of the prosecution regarding the last seen theory.

15. In the case of Khujji @ Surendra Tewari v State of MP1, the Supreme Court observed that: 1 AIR 1991 SC 1853 JCRLA No.2 of 2011 Page 10 of 29 "The evidence of a witness, declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana2; Rabinder Kumar Dey v. State of Orissa3 and Syed lqbal v. State of Karnataka4 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

16. In the case of Gura Singh, Appellant v. State of Rajasthan5, the Supreme Court observed as follows:- should be excluded or "11. There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire rendered evidence unworthy of consideration. This Court Bhagwan Singh v. State of Haryana6 held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State