State of Orissa … v. For
Case Details
ORISSA HIGH COURT, CUTTACK DSREF NO. 2 OF 2013 & CRLA NO. 274 OF 2013 DSREF No. 2 of 2013 In the matter of a reference under section 366 of the Code of Criminal Procedure arising out of judgment dated 19.03.2013 passed by Sri S.S.Mishra, Ad hoc Additional District & Sessions Judge (FTC), Jharsuguda in S.T.Case No.38/44 of 2010. State of Orissa …… Complainant Minaketan @ Tekaru Seth …… Respondent Versus For Complainant : Mr.B.P.Pradhan, Addl. Government Advocate. For Respondent : M/s. B.K.Ragada, and L.N.Patel. CRLA No. 274 of 2013 From the Judgment dated 19.03.2013 passed by Sri S.S.Mishra, Ad hoc Additional District & Sessions Judge (FTC), Jharsuguda in S.T.Case No.38/44 of 2010. Minaketan @ Tekaru Seth …… Appellant Versus State of Orissa …… Respondent For Appellant : M/s.B.K.Ragada, and L.N.Patel. For Respondent : Mr. B.P. Pradhan, Addl. Government Advocate. 2 P R E S E N T: THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY AND THE HONOURABLE SHRI JUSTICE D.DASH -------------------------------------------------------------------------------------- Date of hearing : 04.12.2013 : Date of judgment: 20.12.2013 --------------------------------------------------------------------------------------- D.DASH,J This proceeding for confirmation of death sentence and the Criminal Appeal having arisen out of the judgment of conviction and sentence dated 19.03.2013 and 22.03.2013 respectively passed by the learned Ad hoc Additional Sessions Judge, Jharusugda in S.T. Case No. 38/44 of 2010 have been heard together and are thus disposed of by this common judgment. 2. The prosecution case is the followings : On 09.10.2009 it was around 9.00 A.M., deceased, a minor girl had been to the field carrying food for her father (P.W.1) who was working there. After her father took his food, the deceased left for home carrying steel tiffin carrier and the bucket. Father of the deceased after finishing the work in the field when returned home around 2.00 P.M. was surprised to find out that his daughter even by then had not returned. So he with his friends, namely, Hemanta (P.W.18) and Arjuna (P.W.19) went for search. At about 5.00 P.M. they found one chappal of the deceased lying in the agricultural land of Jagannath Bhoi. At Sukarmal Chhack at a little distance they further saw the tiffin carrier and the bucket which the deceased had carried and brought back with her, to be lying. Lastly the search ended when they 3 recovered the half unrobed dead body of daughter of P.W.1 with her undergarment (chadi) lying near by. While tracking the dead body, marks of dragging over the standing paddy crops on the field were also seen. The dead body was lying there with froth coming out of the lips with blood and sticking thereto. A swollen ligature mark around the neck. Father of the deceased (P.W.1), immediately lodged the written report (Ext.1) at Kandheikela Out Post, where after the investigation commenced. Police in course of investigation visited the spot, held inquest over the dead body of the deceased daughter of informant, examined witnesses and recorded their statements. The dead body was sent for post mortem examination and the incriminating articles were sent through court for chemical examination. 3. It is pertinent to state here that P.W.1 while lodging the F.I.R. had pointed the finger of suspicion at one Sudam Sha @ Sudarshan who has been examined during trial from the side of prosecution as P.W.4. So initially the case was registered against him. However, in course of investigation police arrested the accused on 13.10.2009 and he was forwarded in the custody to court. On completion of investigation, police placed charge sheet against him for facing trial in the court of law. 4. Charge sheet having been received, the learned S.D.J.M., Jharsuguda took cognizance of offence under Sections 376 and 302 IPC and 4 committed the case to the court of Session, where after it came to be tried by the Ad hoc Additional Sessions Judge (FTC), Jharsuguda who has rendered the judgment of conviction and sentence as stated above. 5. During trial prosecution in order to bring home the charges against the accused has examined in total twenty three witnesses. P.Ws. 1 and 2 are the parents of the deceased whereas P.W.3 is her paternal uncle.
Legal Reasoning
P.W.4 is the person against whom P.W.1 had first pointed the suspicious finger about his complicity in the crime. P.W.5 is the witness who claims that in his and in presence of others the accused confessed to have committed crime. P.Ws.6 and 15 have been examined to prove certain post occurrence conduct of the accused. P.Ws.7 and 8 are the other witnesses to the extra judicial confession said to have been made by the accused before them. So also before P.Ws. 8, 14, 18 and 19 who are the witnesses to prove the later conduct of accused and his confessional statement before them. P.W.9 is a formal witness, who had produced wearing apparels of the deceased after post mortem examination, and so also P.W.10 produced the sample bottle containing nail, blood sample and hair of the accused for their seizure. P.Ws. 11 and 13 are the witnesses to the seizure of the wearing chadi, chappal, steel tiffin carrier and bucket lying near the paddy field. P.W.12 is the witness to the inquest. P.W.22 is the principal investigating officer and P.W.23 took charge of the investigation later till its culmination. 5 6. The accused took the plea of denial and claimed that he has been falsely arraigned in the case without any rhyme and reason. In his statement made under section 313 Cr.P.C, he has specifically stated that for no reason the case has been falsely foisted against him. Being called upon to enter into the defence, he has examined himself. 7. The trial court on analysis of evidence of the prosecution witnesses have arrived at the conclusion that the prosecution has well proved the case against the accused through clear cogent and acceptable evidence, the circumstances which being joined together as links form a complete chain leaving no scope but to hold that it is the accused who is the perpetrator of the crime of rape and murder of minor girl. Therefore, the accused has been convicted for commission of offence under sections 376 and 302 IPC. He has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.3,000/- in default to suffer R.I. for a further period of five months for the offence under section 376 IPC, while being sentenced to death for the offence under section 302 IPC. That is how the reference made by the learned Ad hoc Additional Sessions Judge (FTC), Jharsuguda under section 366 of the Code of Criminal Procedure, 1973 for confirmation of death sentence and also the appeal preferred by the convict Mineketan Seth challenging the conviction and sentence are before this Court. 8.
Legal Reasoning
Learned counsel Mr. B.K. Ragada, appearing on behalf of the accused submits that the evidence let in by the prosecution for establishing 6 the charges against the accused during trial on their proper analysis can not lead to a conclusion that the prosecution has proved the case beyond reasonable doubt that the accused has committed the offence. According to him, the entire case of the prosecution so far as the authorship of the crime is concerned rests upon the evidence of P.Ws. 7 and 8 before whom it is stated that the accused confessed to have committed the crime. It is his submission that the place, time, manner and circumstances which these two witnesses narrated about the accused to have confessed the commission of crime is highly unbelievable and the same cannot be accepted for a moment. Furthermore, it is submitted that absolutely no evidence or circumstance is emanating there-from as to why the accused on the next date of commission of crime at that place would be plainly making such an open breast confession, when there was absolutely no point of discussion on the subject and also that as to why and how he reposed the confidence on these two witnesses all of a sudden without any such strong relationship. Further submitting that as per the settled principles of law, extra judicial confession is a very weak piece of evidence and that conviction can only be based upon it provided the court examining the evidence to that effect from all angles and on their strict scrutiny believe with certainty that the accused made confession before the witnesses, he contends that the evidence on this score is highly unbelievable and improbable. Therefore, he submits that it is a fit case where the conviction 7 and sentence are liable to be set at naught and the reference need be accordingly discharged. Mr. B.P. Pradhan, learned Additional Government Advocate in resisting the submissions of the learned counsel for the accused contends that the evidence placed in the case sufficiently proves and establishes the complicity of the accused in the crime of rape and murder of the minor daughter of P.W.1. It is his contention that the evidence of P.Ws. 7 and 8 can not be doubted in any manner and thus those pass through all the acid tests required to be pressed for the purpose of arriving at the finding that the extra judicial confession have been made by the accused before them. In this connection, he has placed reliance on certain circumstances which will be dealt in course of analysis of evidence of P.Ws. 7 and 8 for their proper appreciation hereafter. It is also his submission that the seizure of lungi and shirt at the instance of the accused was within his special knowledge and by leading the police for such recovery made in presence of the witnesses which lends corroboration to the prosecution case. Thus he contends that in view of unchallenged evidence that the death has been caused due to asphyxia on account of throttling, the learned Sessions Judge has rightly fastened the guilt upon the accused. Lastly he contends that in the facts and circumstances of the case and considering the aggravating and mitigating circumstances the case falls within the category of ‘rarest of rare cases’. Thus he urges that the 8 judgment of conviction and sentence has to get the seal of confirmation and the death reference has to be answered in the affirmative. 9. It is not disputed that the deceased met the homicidal death and also that she was sexually assaulted prior to that. The postmortem examination report, Ext.12 reveals that the doctor conducting autopsy to have found presence of 10 (semi lunar) marks in front and both sides of the neck with one bruise on the front and two on both sides of neck. On dissection extravessation of blood in the subcutaneous tissue under the bruises have been noticed; Mucosa of trachea and larynx have been found as congested and intact with throx wall distended. Both the lungs and heart are found to be congested and intact. Heart has been found to contain little amount of clotted blood in both its chambers. Hymen has been found with tears at 6 and 11 ‘O’ Clock position with the margin containing clotted blood whereas the vaginal mucosa as congested. From all these features noticed during postmortem examination the doctor is of the opinion that the death was due to asphyxia on account of throttling and the injuries were ante mortem in nature; so there remains that the possibility of sexual assault cannot be excluded. The postmortem report has been admitted in evidence without objection. Further more, the inquest report reveals about existence of swelling marks in the neck, injuries on the private parts and other portion of the 9 deceased. Thus this Court finds no difficulty in arriving at a conclusion that the deceased met the homicidal death and was also subjected to forcible sexual assault prior to death. Therefore, the findings of the trial court on this score cannot be found fault with. 10. Now comes the most important question regarding the authorship of the crime in finding out as to whether the prosecution has established its case beyond reasonable doubt against the accused that it is he, who committed sexual assault on the deceased and then has done her to death by throttling. Admittedly, the case of the prosecution in the instant case is based upon the extra judicial confession and other circumstantial evidence. Law is well settled that a conviction can be based upon circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only 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 a conclusive nature and tendency. There must be a chain of 10 evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Ref:- Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police, (2008) 15 SCC 430: (AIR 2008 SC (Supp) 2010: 2008 AIR SCW 4065) ; Wakkar & Anr. V. State of Uttar Pradesh, (2011) 3 SCC 306): (AIR 2011 SC (Cri) 518: 2011 AIR SCW 1215): and Sk. Yusud v. State of West Bengal, AIR 2011 SC 2283. 11. The occurrence has taken place during the return journey of the deceased to her house from the paddy field, where her father was working. The dead body has been recovered from the paddy field and so also the chappal, steel tiffin, bucket and the chadi of the deceased. Admittedly, there is no eye witness to the occurrence. The prosecution relies on the evidence of P.Ws. 7 and 8 who are the star witnesses and before whom it is said that the accused confessed to have sexually assaulted the deceased and done her to death by throttling. 12. Let us first scan the evidence of these two witnesses who are witnesses to the extra judicial confession to ascertain as to how far they are reliable and their evidence is acceptable. But before embarking upon that exercise, it is necessary to take note of the position of law with regard to acceptance of extra judicial confession at a circumstance. 11 The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that accused is the perpetrator of the crime. The “extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility”. (See: State of Rajasthan v. Raja