The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.76 of 2011 (From the judgment of conviction and order of sentence dated 21.02.2011 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No.09 of 2007) Simanchal Nahak …. Appellant -versus- State of Orissa …. Respondent Advocates appeared in the case: For Appellant : Mr.Nrusingha Nanda Mahapatra, 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. The Appellant has preferred this Jail Criminal Appeal challenging the judgment of conviction and order of sentence 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 dated 21.02.2011 passed by the Learned Additional Sessions Judge, Jharsuguda in S.T Case No.09 of 2007, arising out of G.R Case No.1515 of 2006, corresponding to Brajrajnagar P.S. Case No.234 of 2006; wherein the Learned Additional Sessions Judge, Jharsuguda has convicted the Appellant for commission of offences punishable under section 302/376(2)(f)/201 of the I.P.C and sentenced to undergo imprisonment for life for the offence under Section 302 of the I.P.C. The Appellant was also sentenced to undergo R.I for ten years and to pay a fine of Rs.3000/- in default to undergo further R.I for a period of six months for the offence under section 376(2)(f) of the I.P.C. As regards the offence under Section 201 of the I.P.C., the Appellant was sentenced to undergo R.I for three years and to pay a fine of Rs.1000/- in default to further undergo R.I for a period of two months. I. CASE OF THE PROSECUTION 2. The case of the prosecution, in brief, is that the occurrence took place on 15.09.2006 during the evening hours, at the house of the accused situated at village Khaparpada under Brajrajnagar P.S. It was alleged by the brother of the deceased that on the day of occurrence, during the evening hours, his
Legal Reasoning
sister aged 12 years went to the house of his grandfather Sri Bhaskar Naik who is the father of the accused to fetch milk 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 and did not return to the house till 8.30.PM. On getting information, the entire family searched for the deceased at different places. It was also ascertained that Bhaskar Naik and his wife Maya were not available in their house as they had left for their native village in the district of Ganjam four days prior to the occurrence. 3. When the accused was questioned about the deceased, he informed that the deceased came to his house in the evening and after fetching milk, she left. Again, the family members searched for the deceased and at about 2.00 AM in the night, a missing report was filed at the Brajrajnagar P.S. On the very next day at the morning, the grandfather of the deceased-Sri Hatia Singh found the dead body of the deceased at the ’Kukarkani Nala’ with injuries all over the body. The dead body was brought out and the police was informed and the informant lodged a report at the PS. It was suspected by the family members that the accused Simanchal who was alone in the house in that evening might have killed the deceased while she went there to fetch milk. Based on the report of the informant, Brajrajnagar P.S. Case No.234 of 2006 was registered. The Investigating Officer after completion of investigation submitted the charge-sheet under Section 376(f)/302/201 of the I.P.C. against the accused Simanchal Nahak. 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. SUBMISSIONS ON BEHALF OF THE APPELLANT: 4. It is submitted by Learned Counsel for the Appellant that the R.F.S.L report clearly stated about the absence of semen from the vaginal swab of victim /deceased. Further, the wearing apparels and nail clippings of accused also did not contain blood and semen. Moreover, P.W.2 deposed that he saw a black spot on the throat of victim, whereas, according to P.W.9, there were 3-4 ligature mark injuries over ventral side of neck but, no black spot was found on the neck as deposed by P.W.2. 5. It is further contended by Learned Counsel for the Appellant that the Scientific Officer and the R.F.S.L Officer were not produced in court as witnesses, therefore their suggestions and reports are not to be taken into account and it is ought to be rejected .Without examining the experts as a witness in court no reliance can be placed on the opinion of the experts alone. Further, the seized articles were improperly sealed before sending them for chemical examination. Therefore, it is a relevant factor against the prosecution and no support can be taken from the Chemical Examination report. 6. The Learned Counsel for the Appellant also stressed that the expert opinion and evidence by its very nature is a weak piece of evidence and cannot be solely relied upon to form the basis 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 for conviction. The accused is an innocent boy as he hadno fingerprint marks on the milk cane and there is no specific mention as to whether the articles that were sent for chemical examination had blood stains that belonged to either the accused or the deceased. III. SUBMISSIONS ON BEHALF OF THE RESPONDENT/(STATE: 7. Per Contra, it was contended by Learned Additional Government Advocate that the accused was alone in the house at the evening hour when the deceased went there to fetch milk. The recovery of milk cane with decomposed milk from the house of the accused is the proof that the accused gave false information at 10.00 p.m. in the night to the mother and the grandmother of the deceased that the deceased left his house after fetching milk. 8. Moreover, during the course of investigation, on arrival of police dog-squad, the accused disappeared from the house and was apprehended by the I.O. on the next day i.e. 17.09.2006 at Gangapada. Further, incriminating materials like blood-stained plastic mat, wearing apparels of the accused and a ’Belana-badi’ by which the accused pressed the neck of the deceased were seized from the house of the accused after breaking open the lock. 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 9. It was submitted by the Learned Counsel for the Respondent that the Scientific Team recovered pubic hair from the vaginal area of the deceased and it tallied with the pubic hair sample of the accused collected by the doctor-P.W.14 as per Chemical Examination report. Since, it has been stated in the PM Examination report that the the injuries on the private part of the deceased were due to forcible sexual intercourse, it is proved beyond reasonable doubt that the accused committed rape and subsequently, murdered the deceased. P.W.9 (the medical officer) also opined that the ‘Belana Badi’ produced before him were capable of causing injuries available on the face and the neck of the deceased IV. COURT’S ANALYSIS AND REASONING: 10. Heard both the parties and went through the judgment of the Trial Court. After extensively perusing the documents adduced by the prosecution and the depositions of the witnesses, this Court is of the view that there is one point of determination in the present case: V. Whether accused has committed rape and murder of the deceased? 11. In order to establish the above charges, the prosecution has examined altogether 15 witnesses including the informant who is the brother of the deceased as P.W.1. P.W.2 was a post 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 occurrence witness and also a witness to seizure and inquest. P.Ws. 8, 11, 12 & 13 are the witnesses to seizure. P.W.3 and 4 are the adjacent house owners and witnesses to seizures. P.W.5 is the grandfather, P.W.6 & 10 are the uncles, P.W.7 is the father of the deceased, P.W.9 & 14 are the doctors and PW.15 is the investigation officer of this case. On the other hand, the accused did not examine any witness on his behalf to substantiate his plea. The prosecution exhibited certain documents during the course of trial and also produced the material objects marked as MO-I to MO-V. 12. PW.1 is the brother of the deceased and he has stated in his evidence that the accused is his maternal uncle by relation and his deceased sister used to fetch milk every day in the house of Bhaskar Nahak who is their grandfather and also the father of the accused. On the occurrence day evening, the deceased who was aged about 12 years went to the house of accused to fetch milk but did not return till 8.30 PM. At that time, the accused was residing alone in the house and four days prior to the occurrence, his parents left for their native village in Ganjam district. As his sister did not return till 8.30 P.M., the entire family searched for her at different places including the house of accused and when the accused was questioned about the where about of the deceased, the accused informed them that, deceased left his house after giving the milk. During the entire 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 night the family members searched for the deceased but could not trace her out and at about 2 A.M.in that night police was informed about the deceased. On the very next day morning, Hatia Singh found the dead body of the deceased at the Kukarkani Nala and brought out the body and informed the family members and others and police. Police came to the spot and verified the dead body and found injuries all over the body including face, chest and private parts. The IO sought the help of the scientific team and the dog squad and he lodged the report at the PS vide Ext.1. 13. P.W.2 one of the neighbouring witness and also a post occurrence witness stated in his evidence that on hearing the murder of the deceased, he went to the spot i.e. Kukarkani Nala and found the dead body of deceased and the family members, accused and the police were present at the spot. He found injuries on the person of the deceased and a black spot on her throat. The scientific officer was also present at the spot and a hair was found in the vagina of the deceased and police seized the same as per Ext.2 14. P.W.3 named Babulal Yadav is the landlord who let out the house to Bhaskar Nahak who is none other than the father of the accused and his house is adjacent to the house of accused. This witness stated in his evidence that on 16.09.06 the police 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 seized the articles like ’belnabadi’ stained with blood, hair, plastic mat, blood-stained earth, steel cane and prepared two seizure lists vide Ext.6 &7 and his signatures are marked as Ext.6/1 &7/1. Further he has stated that four days prior to the occurrence, the parents of the accused left for their native village. The deceased used to fetch milk in the house of the accused. On the occurrence night at about 10 pm, the grandfather of the deceased named Hatia Singh and his wife came to the house of the accused to enquire about deceased. On the next day morning, the said Hatia found the dead body of the deceased at the nala and informed others. On his way to the school he saw the dead body of the deceased and found the accused sitting by its side. The police team from Sambalpur came with dog squad and the said tracking dog from the nala went to the house of the accused and found blood on the floor, blood stained mat, blood stained ’belna Badi’ and hair and a milk cane. Therefore, he has corroborated the deposition of PW.1. 15. PW.5, the grandfather of the deceased stated in his evidence that the deceased is the daughter of his daughter and the accused is the son of his sister-in-law. His two sons Pabana& Bansi have got a hotel and also got some cows and are during milk business. According to him, the deceased used to fetch milk at the house of the accused and on the occurrence day she 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 went to the house of the accused but did not return till 8.30 pm. Hence, he along with his wife and daughter Smt. Bangali Sahu searched for the deceased at different places and enquired from the accused and the accused told them that the deceased went away from his house after giving the milk in that evening. In that entire night the family searched for the deceased but in vain. Further he has stated that on the very next day morning he went towards the Kukarkani nala and found the dead body of deceased and the said nala is near the house of the accused. He brought out the dead body from the muddy water and raised alarm. Many persons including his family members assembled at the nala. His son Bansi and others went to the Police Station and lodged the report and the police came to the spot. On cleaning the mud from the body of the deceased, he found injuries all over her body and also on her private parts and a hair in her vagina which was seized by the police as per Ext.2 and he was also a witness to the inquest. 16. P.W.6 who is the uncle of the deceased and this witness stated in his evidence that he along with his brother Bansi has got a hotel in that area and have got some cows. While he was at the hotel, got information that the deceased is missing as she did not return to the house after she left for the house of accused to fetch milk. His mother and elder sister went to the house of the accused and found that the accused standing outside of his 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. 10 house and his house is locked. The entire family searched for the deceased at different places in that night but the deceased could not be traced out. On the very next day morning his father (PW.5) found the dead body of the deceased at Kukarkani Nala and raised halla. On hearing the halla many persons gathered at the spot and the police was informed and the dead body was brought out. He also found multiple injuries all over the dead body of the deceased including her private part and a pubic hair was found in her vagina. 17. P.W.7 is none other than the father of the deceased. He has stated in his evidence that while he was working in the hotel of Bansi who is his brother-in-law, the accused came there and all of them went to their house. According to him on the occurrence day his deceased daughter went to the house of accused to fetch milk but did not return. By that time, the parents of the accused were not present in the house as they left for their native village four days prior to the occurrence. The three brothers of accused Simanchal were staying in the hotel of Bansi and the accused was residing alone in that rented house of Bhaskar Nahak. Further in that night the accused took his food and left for his house. In that night, his wife and mother-in-law went to the house of the accused in search of the deceased and found the accused standing in front of his house and the house was under lock and key. The 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. 11 accused told them that the deceased left his house after giving the milk. The deceased was searched in that entire night and the accused also accompanied them. But on the very next day morning, his father-in-law found the dead body of the deceased at the ’Nala’ and brought out the same and police was informed. 18. P.W.9 the then Medical Officer of DHH, Jharsuguda stated in his evidence that, on police requisition he conducted post mortem on the dead body of the deceased on 16.09.2006 at about 4.45 PM. The doctor opined that the cause of the death was due to asphyxia due to strangulation. He also stated that injury available on the private part of the deceased is due to forcible sexual intercourse. He further opined that the Belna Badi which was produced before him can cause the injuries available on the face and neck of the deceased. Ext.9 is the post mortem report and Ext.10 is the query report. 19. P.W.14 the then doctor who examined the accused on police requisition stated in his evidence that on 17.09.2006 at about 11.20 AM he examined him and found two bruises with abrasion on his right side thigh posterior laterally with scab formation radish black in colour. He also collected urethral swab, blood samples, loose pubic hair & nail clipping and handed over to police. His report suggests no evidence 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. 12 intercourse but suggestive of attempt. He has submitted his report vide Ext.13. During his cross examination, he has stated that he has not mentioned the age of the injury & there is no recent sign of sexual intercourse by the accused. 20. PW.15 is the I.O. of this case. During that time he was the IIC of Brajrajnagar Police Station. After receipt of the written report at 8.15 AM of 16.09.2006, he registered the case and took up the investigation. He examined the informant and other witnesses and made arrangements for the services of the scientific team and the dog squad. Prior to filing of the report at the P.S. vide Ext-1, one Bansidhar Singh who is the uncle of the deceased reported at the P.S. about the missing of the deceased and he reflected the same in SD entry No.428 dated 15.09.2006. He went to the spot and the scientific team arrived at the spot at 11.30 AM and thereafter he conducted the inquest over the dead body and prepared the inquest report vide Ext.3. The scientific officer detected a pubic hair in the private part of the deceased and sealed the same in presence of witnesses and handed over the same to him and he seized the same as per Ext.2 in presence of witnesses. He examined the other nearby witnesses and along with the scientific team went to the house of the accused and the said house was locked from outside. One of the brothers of accused named Karuna break upon the lock of the house and on verification blood was 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. 13 found on the floor. The steel milk cane found with decomposed milk on the veranda of the house. He seized the milk cane in presence of the witnesses vide Ext.7. The scientific officer collected blood stains, one plastic mat stained with blood, one wooden rolling pin (belnabadi), and three pieces of hair. The scientific officer sealed the same and handed over the same to him and he seized the same in presence of the witnesses vide Ext.6. He also prepared the spot map vide Ext.15. On that day he searched for the accused. He also seized the wearing apparels of the deceased on the production of the constable vide Ext.4. On 18.09.2006 at 1.00 P.M. he arrested the accused Simanchal Nahak after detecting him on 17.09.2006 at Gangapada and seized his wearing apparels as per Ext.5. He sent the accused for medical examination. He also seized the articles collected by the doctor on examination of the accused as Ext.11. The accused was also sent to DHH for ossification test. He seized the school admission register of NAC Girls High School as per Ext.8 and the date of birth is 16.7.1995. He also received the scientific officers’ report as Ext.17 and the Dog squad report as Ext.18. He forwarded the accused to court and again prayed before the court for medical examination of the accused for collection of semen and saliva as the accused did not co-operate him at the first instance. 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. 14 21. His investigation discloses that the accused was with the family of the deceased after 8.30 P.M. in that night. The dog which was pressed in to service, led the police party from the house of the accused to the ’nala’ where the dead body was found. The dead body was recovered at the "nala’ after 5 to 6 hours of receipt of the missing report. At the first instance he did not search the house of the accused as the informant’s party told him that the victim was not in the house of the accused. It was brought out from the mouth of this witness that the Bermunda half pant stained with blood was seized as per Ext.6 (marked) from the spot house. The said half pant was stained with blood and semen and was sent for chemical examination. The chemical report suggests that the blood available on the pant is of human blood but grouping was not done. 22. There is no eye-witness to the occurrence and the entire case of the prosecution rests on the circumstantial evidence placed before this Court from the side of the prosecution. The brother of the deceased examined as P.W.I has stated that his deceased sister used to fetch milk in the house of Bhaskar Nahak every day. Said Bhaskar Nahak is the father of the accused. After leaving the house to fetch milk in the house of the accused, the deceased did not return to the house for which the entire family searched for her till 2.00 AM in that night and they filed 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. 15 a missing report at the P.S. The accused was also asked about the where about of the deceased by the family members of the deceased, but he informed them that the deceased left his house after delivering the milk cane. By that time the house of the accused was locked from outside and the accused gave the reply to the family members of the deceased by standing outside of his house. Evidence is also coming forward that the accused was all along with the family members of the deceased till the arrival of Dog-Squad from Sambalpur when the dead body of the deceased was retrieved from the Nala by the grandfather of the deceased on the very next day. The dead body of the deceased was having external injury on face, chest and also on the private parts. Further, this witness has stated that in that night police also came to the house of the accused; but could not find anything and he lodged report at the P.S. it is crystal clear from the evidence of P.Ws.5, 6, 7 and 10 that the deceased went to the house of the accused on the occurrence day evening to fetch milk and thereafter she was missing. The witnesses P.Ws.2, 3 and 4 have stated in their evidence that there was strangulation and external injuries found on the body of the deceased. P.W.2 one of the witnesses to the seizure of a hair found in the vagina of the deceased. He was also a witness to the inquest. 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. 16 23. Regarding the availability of the hair in the vagina of the deceased, the evidence of P.W.2 has got support from the evidence of P.W.5, the grandfather of the deceased. That hair was seized by the IO-P.W.15. The wearing apparels of the deceased was seized as per Ext.4 and the wearing apparels of the accused was also seized as per Ext.5. 24. P.W.15 has stated in his evidence that after recovery of the hair from the vagina of the deceased by the Scientific Team, he seized the same as per Ext.2 in presence of P.Ws 2 and 5 and thereafter when the dog went to the house of the accused he seized the articles stained with blood as per Ext.6 and milk- cane as per Ext.7 in presence of witnesses P.Ws.3 and 4. So, the seizure part of the incriminating material by the 10 in presence of witnesses like P.Ws.2, 3, 4 and 5 has been very well established in this case. 25. As per the report of the doctor-P.W.9 there was forcible sexual intercourse committed on the deceased prior to her death and when the deceased resist the lust of the accused, she was kept silence by pressing her neck by means of Belana-kathi. The other doctor examined as P.W.14 examined the accused on police requisition on 17.9.2006 at about 11.20 am and he found two numbers of bruises on thigh in reddish black in colour. He collected the sample including the pubic hair and handed over 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. 17 the same to police. Said report is marked as Ext.13. He has not mentioned in his report about recent sexual intercourse committed by the accused. So, by going through the evidence of P.Ws.9 and 14 vide Exts.9 and 13 it is forth coming that the victim girl was ravished prior to her death and when she resisted the intercourse she was killed by strangulation So, the oral evidence adduced by witnesses like P.Ws.5, 6, 7 and 10 who are the relations of the deceased has got corroboration from the evidence of the doctors examined as P.Ws.9 and 14. 26. As rightly explained by the Trial Court, in dealing with circumstantial evidence the rules especially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be of at the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude any hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that 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. 18 within all human probability the act must have been done by the accused. 27. The burden heavily lies on the prosecution side to prove the case against the accused beyond all reasonable doubts. In the instant case, there was no such direct evidence is available on record. The entire case of the prosecution rests on the circumstantial evidence placed before this court. It is the case of the prosecution that when the deceased went to the house of the accused in the evening hours to fetch milk, the accused who was alone in the house made attempt to commit rape on her & when she resisted, the accused pressed her neck and also pressed the neck with the ’Belnabadi.’ So as per prosecution story, it is a case of strangulation of the neck and the dead body was thrown to the nala which was recovered on the very next day by the grandfather of the deceased. 28. The Learned State Defence Counsel of the accused submitted before this Court that the evidence is very well forthcoming that, the accused resides with his parents and other three brothers in the said house. There was no such eye witness to the occurrence. The chemical report vide Ext.20 is not conclusive with regard to the blood and semen available on ’barmuda’ pant. On the other hand the learned PP appearing for the state submitted before this court that the witnesses 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. 19 the prosecution very well proved the case against the accused. The counsel pointed out about the detection of a hair in the vagina of the deceased collected by the scientific officer and seizure of the same as per Ext.2 and sending the same to the chemical examiner and the C.E report vide Ext.20 is conclusive one to fasten the guilt around the accused. Further the accused could not explain before the court as to how the incriminating materials were recovered from his house. Hence there is chain of circumstances available against the accused to prove that he committed rape on a girl under the age of 12 years and when she resisted, he killed her mercilessly. The uncles of the deceased P.Ws.6 and 10 have categorically stated that on the date of occurrence evening the other brothers of the accused were in the hotel and parent of the accused left for their native village 4 to 5 days prior to the occurrence. Regarding the absence of other family members the adjoining house owner P.W.4 has also stated that the accused was alone in the house on that day. The deceased was no stranger to the accused and she was delivering the milk as usual in the house of the accused prior to the occurrence. So, the visiting of the deceased to the house of the accused with milk-cane has been deposed by the family members of the deceased and it is also not disputed by the accused, as the milk-cane with decomposed milk was recovered and seized from the house of the accused. 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. 20 Post-occurrence witnesses have categorically stated that there were external injuries available on the leg hand, pubic region and vaginal wall, bruise over the eyes, cheek and ligature mark on the neck. So, the medical evidence adduced by P.W.9 as per his report vide Ext.9 has got corroboration from the ocular evidence adduced by P.Ws.5, 6, 7 and 10. The injury available on the body of the deceased clearly speaks that prior to her death she struggled to resist the rape; but the accused pressed her neck with the ’belana-badi’ to silence her to commit rape. Regarding the commission of rape, the doctor P.W.9 opined that the injury available on the private part of the deceased was due to forcible sexual intercourse. Doctor- P.W.14 Sabita Patel and his report vide Ext.13 is silent with regard to the recent sign of sexual intercourse by the accused; but a suggestive of attempt. So, from the injuries available on the private part of the deceased coupled with the report vide Ext.9 and Ext.13 submitted by the doctor P.W.9 and P.W.14, it can be concluded that the deceased was subjected to rape prior to her death. The reports submitted by the doctors are conclusive in nature and pointing towards the guilt of the accused. 29. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and 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. 21 caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution’s witnesses. 30. The result is that this Appeal is without merit and the same is liable to be dismissed. We do so, confirming the judgment of conviction and order of sentence dated 21.02.2011 passed by the Learned Additional Sessions Judge, Jharsuguda in S.T Case No.09 of 2007, arising out of G.R Case No.1515 of 2006 corresponding to Brajrajnagar P.S. Case No. 234 of 2006. 31. Accordingly, this JCRLA is dismissed. ( Dr. S.K. Panigrahi ) Judge D. Dash, J. I agree. Judge ( D. Dash ) Orissa High Court, Cuttack, Dated the 24th July, 2023/ 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. 22