The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.46 of 2012 (From the judgment of conviction and order of sentence dated 20.03.2012 passed by the learned 1st Additional Sessions Judge, Puri in S.T. Case No.20/86 of 2009) Sidheswar Mallik …. Appellant -versus- State of Orissa …. Respondent Advocates appeared in the case: For Appellant : Mr. Niranjan Panda, Adv. Mr. Rajib Bihari Mishra, Adv. -versus- For Respondent : Mr. S.K. Nayak, AGA CORAM: MR. JUSTICE D. DASH DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-05.07.2023 DATE OF JUDGMENT:-24.07.2023 Dr. S.K. Panigrahi, J. 1. In this JCRLA, the convict/ Appellant (Sidheswar Mallik) challenges the judgment of conviction and order of sentence dated 20.03.2012 passed by the learned 1st Addl. Sessions Judge, Puri in Sessions Trial Case No.20/86 of 2009, whereby the Appellant was convicted under Section 366-A/342/376/302/506 of Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 1 the I.P.C. and sentenced to undergo R.1 for life, to pay a fine of Rs.10,000/- in default to R.I. for 6 months for the offence under Section 302 of the I.P.C., R.I. for 10 years and to pay a fine of Rs.10,000/- in default to R.I. for 6 months for the offence under Section 376 of the I.P.C., to undergo R.I. for 5 years and to pay a fine of Rs.5,000/- in default to R.I. for 6 months for the offence under Section 366-A of the I.P.C., to undergo R.I. for 6 months and to pay a fine of Rs.1000/- in default to undergo R.L. for 2 months for the offence under Section 342 of the I.P.C., and to undergo R.I. for one year and to pay a fine of Rs.2000/- in default to R.I. for 4 months for the offence under Section 506 of the I.P.C. I. CASE OF THE PROSECUTION: 2. The accused person stands charged for the offences under Sections 366/342/376/302/506/201 of the I.P.C for abducting the victim with an intention to force her for illicit intercourse, wrongfully confining the victim, committing rape on her and killing her mother (deceased).
Facts
3. The brief facts of the case, in a nutshell, are that the deceased was residing with the informant. The accused brought the daughter of elder brother of the informant since Dipabali from his maternal uncle’s house. On 21.10.2008 the accused came to the house of the informant at about 2.00 p.m. along with the victim. When the informant, the deceased and the husband of the informant Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 2 protested, the accused got annoyed. On 01.10.2008, the deceased, the accused and the victim resided in the house of the father of the victim. On 02.11.2008, the informant saw that the house where he mother and others had slept was bolted from outside. When she opened the door, she found victim alone. On query the victim disclosed that at about 2.00 a.m. in the last night the accused quarreled with the deceased and committed rape on her by gagging her mouth on cloth and tying the hands and legs with the napkin. When she protested the accused threatened her to kill and instructed her to remain silent. Thereafter the accused took the deceased to the outside, bolted the door from the outside and fled away. Having heard it, the informant & her husband searched for the deceased. But they did not find her. They remained silent suspecting that the accused could have taken the deceased to his place of residing. On dated 08.11.2008 at about 5.00 P.M. when the son of the informant, namely Sunil had been to the pond to attend the call of nature, he found foul smell from Kharakhari Pokhari Dalagadia and found the dead body of the deceased. He informed about the dead body of the deceased to his mother. Having seen the dead body the informant became sure that the accused had concealed the dead body of the deceased in the Dalagadia after killing her. After appearance of the accused person he was committed to the Court of Sessions by the learned J.M.F.C., Nimapara. Hence, this appeal. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 3 II. SUBMISSION OF THE APPELLANT: 4. Learned Counsel for the Appellant strenuously argued that the Appellant is innocent. The plea of the defence is one of complete denial and false implication. The specific case/plea of the defence as it borne out from the statement of the accused under Section 313 of the Cr.P.C is that he (accused) is in no way connected or concerned with the death of the deceased. He had further deposed that he cannot say who has killed the deceased. However, he was not involved in the incident. 5. Learned defence counsel in course of advancing his argument in the case contended that most of these witnesses during their cross-examination admitted to have not seen the actual assault on the deceased by the accused. Therefore, there remains a doubt regarding the identity of actual assailant as none of the above witnesses had seen the accused killing the deceased at that relevant time. 6. He has contended that the evidences adduced against him are brought forward by a child witness and therefore should not be relied on. Moreover, he has claimed that the case of the prosecution under Section 302 of the I.P.C. is based on circumstantial evidence which has not been proved beyond reasonable doubt. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 4 III. SUBMISSIONS OF THE STATE/ RESPONDENT: 7. Learned Additional Standing Counsel for the State submitted that the prosecution has examined P.W.23 who is the informant of this case and elder sister of the accused. P.W.21 is the scribe of Ext.13. P.W.18 is the victim herself. P.W.3 is the Sebayat of Tilikana Matha where the accused had slept in the night along with the victim. P.W.4 is the mother of the victim. P.Ws.5, 6, 7, 12 and 16 are the witnesses to the seizure. P.Ws. 1, 2, 20 are the witnesses who have been hostile to the prosecution. P.W.25 is the doctor who had conducted post mortem. P.W.15 is the scientific officer D.F.S.L., Puri. P.W.26 is the Doctor who had examined the accused. P.W.13 is the doctor who had examined the victim. P.W.14 is another doctor who had collected the sample of blood and swab of the victim. P.W.9 is the Havildar who had taken the victim to the medical for collection of sample. P.Ws.10 and 11 are the constables who had accompanied P.W.9. P.W.8 is the constable who is a witness to the seizure.
Legal Reasoning
witness. However, we are of the opinion that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, 3 (1974) (3) SCC 767 4 (1981) SCC (Crl.) 676 5 (1981) (2) SCC 752 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 9 weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. In the case at hand, even though the dying declaration of the deceased was not recorded, the evidentiary value of the deposition of P.W.21 & P.W.23 combined with the circumstantial evidence and Chemical Examination Report, affirms the guilt of the Appellant. 14. In the case of Shivaji Sahebrao Bobade v. State of Maharashtra6, the Supreme Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. The apex Court observed: “It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." 15. In Anil Phukan v. State of Assam7, the Supreme Court observed; “Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However,
Arguments
8. Learned Counsel for the State submitted that from the unassailed testimony of the eye witness i.e. P.W.18 which finds ample corroboration with each other coupled with the deposition of the post occurrence witnesses P.Ws.23 and 21 as well as the medical evidence i.e. the evidence of the doctor (P.W.13 and 14), it can be safely concluded that, none else but the accused is the author of the injuries found on the body of the deceased. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 5 IV. COURT’S REASONING AND ANALYSIS: 9. On the question for offence under section 302 I.P.C., admittedly, there is no eye witness to the occurrence that the accused had committed murder of the deceased except the sole witness P.W.18 the victim. Therefore, this issue is based on circumstantial evidence. P.W.23 the informant adduced evidence that the victim, the deceased and the accused were sleeping in her house and found the door bolted from outside on the next day morning. She further adduced that when she unlocked the door, she found the victim alone. The victim P.W.18. disclosed before her and others that the accused gagged the mouth of the deceased and took away by tying the legs and hands. She arrived at the pond and identified the deceased to be her mother. It was elicited by the prosecution from the mouth of P.W.23 after declaring her as hostile and where she admitted that the victim P.W.18 has disclosed before her that when the deceased protested while the accused was committing rape on victim, the accused gagged her mouth with the cloth and she died. The defense has objected that the victim only told that the accused had taken away the deceased. P.W 18, the victim corroborated the evidence of P.W.23. She had disclosed on quarry by P.W.23 the accused had taken away the deceased in that night. P.W.17, husband of P.W.23 corroborated the evidence of the informant that P.W.18 had disclosed before P.W.23 that the accused took away the deceased Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 6 by gagging her mouth. The evidence of P.W.23, P.W.17 & P.W.18 leads to an irresistible conclusion that the accused was last seen with the deceased when he took away the deceased by gagging her mouth with cloth and tying her hands and legs. Soon after the occurrence the accused was absconded. The dead body of the deceased was recovered from the pond. 10. P.W.19 a child witness found the dead body of the deceased from the pond. P.W.23 also identified the dead body of the deceased. P.W.25 the doctor who conducted the P.M over the dead body opined the cause of death is due to asphyxia resulting from pressure over the neck & chest. Ext. 15 the post mortem report shows that the time of death is more than 72 hours before the post mortem. PW.18 is the sole witness has seen the occurrence in the night. The learned defense counsel has argued that her version is not trust worthy as she has not disclosed the fact immediately before P.W.23 while the accused was committing rape on her the deceased protested, the accused killed the deceased by gagging cloth on her mouth. It was elicited by the prosecution from the mouth of P.W.23 after declaring her as hostile and where she admitted that the victim P.W.18 has disclosed before her that when the deceased protested while the accused was committing rape on victim, the accused gagged her mouth with the cloth and she died. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 7 11. In the case of Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra1, the Supreme Court observed: such omissions which amount “Only to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person.” 12. In State of Himachal Pradesh v. Lekh Raj & Anr2, dealing with discrepancies, contradictions and omissions, the Supreme Court held: in from "Discrepancy has to be distinguished contradiction. Whereas contradiction the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there such may discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is occur minor discrepancies, 1(2000) 8 SCC 457 2 1999 Supp(4) SCR 286 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Sep-2023 13:43:11 pg. 8 required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala3 held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish vs. State of Madhya Pradesh4 this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan vs. Kalki & Anr.5 held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.” 13. Further, it has been submitted that evidence advanced by P.W.18 cannot act as the sole basis for conviction as P.W.18 is the child