The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.83 of 2019 From judgment and order dated 27.09.2019 passed by the 1st Additional Sessions Judge, Puri in S.T. Case No.73/26/356 of 2015. ---------------------------- Jagannath Ojha @ Jaga @ Jaguni @ Jatia @ Potala @ Dhuna ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Ms. Anima Kumari Dei Amicus Curiae For Respondent: - Mr. Rajesh Tripathy Addl. Standing Counsel JCRLA No.84 of 2019 Mahavir Rana ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Biswajit Ranjan Tripathy Amicus Curiae For Respondent: - Mr. Rajesh Tripathy Addl. Standing Counsel ---------------------------- // 2 // P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 22.02.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Jagannath Ojha @ Jaga @ Jaguni @ Jatia @ Potala @ Dhuna in JCRLA No.83 of 2019 and appellant Mahavir Rana in JCRLA No.84 of 2019 faced trial in the Court of learned 1st Additional Sessions Judge, Puri in S.T. Case No.73/26/356 of 2015 for commission of offence punishable under section 376(D) of the Indian Penal Code on the accusation that on 24.06.2015 at about 4.15 a.m. in front of Lions Gate, Shyamakali Club lane, Puri, they committed gang rape on the victim. The learned trial Court vide impugned judgment and order dated 27.09.2019 found the appellants guilty of the offence charged and sentenced each of them to undergo R.I. for a period of twenty years and to pay a fine of Rs.10,000/- (rupees ten thousand) each, in default, to suffer further R.I. for two months. Since both the criminal appeals arise out of same judgment, with the consent of learned counsel for the respective parties, those were heard analogously and disposed of by this common judgment. Page 2 of 24 // 3 // 2.
Legal Reasoning
The first information report was lodged by P.W.18 Bamadev Swain, S.I. of Police, Singhadwar police station before the Inspector in-charge, Singhadwar police station (P.W.19) on 24.06.2015 wherein it is stated that on that day at about 6.00 a.m., he received information that at Shyamakali club lane, one lady was sexually assaulted by some unknown culprits. He entered the facts in S.D. Entry vide No.499 dated 24.06.2015 and informed the matter to the Inspector in-charge Krushna Chandra Sethi (P.W.19) and proceeded to the spot. On the way, he met one Biju Bhola (P.W.2), who was working in the shoe stand near Emar Math chakada and he told P.W.18 that on the same day at about 4.15 a.m., when he parked his motorcycle at Shyamakali club lane, he heard shouting coming from an under construction house and accordingly, when he proceeded to the said house, he found appellant Mahavir Rana along with two others and on seeing him (P.W.2), those three persons fled away from the spot and that he noticed one lady wearing a grey colour napkin and grey colour check shirt was sitting in the said under construction house. The lady was under tremendous fear and P.W.2 asked the said lady regarding her identity and also enquired about any kind of assault or misbehaviour towards her to which the lady did not give any reply and remained silent. However, P.W.2 presumed that the lady had been sexually Page 3 of 24 // 4 // assaulted by those three persons including the appellant Mahavir Rana. On hearing from P.W.2, P.W.18 proceeded to the spot and noticed a lady was wearing a grey colour check shirt and one napkin and he interrogated the lady regarding her address and identity, but the lady remained silent and she was highly frightened and did not disclose anything to P.W.18, who engaged the staff to guard the lady and came to the police station and drew up the plain paper F.I.R. and presented the same before the I.I.C. of Singhadwar police station. P.W.19 on receipt of the written report from P.W.18, registered Singhadwar P.S. Case No.65 dated 24.06.2015 at 7.30 a.m. against the appellant Mahavir Rana under section 376(D) of the Indian Penal Code and took up investigation. During course of investigation, P.W.19 examined the informant and recorded his statement. He issued requisition to City D.S.P., Puri to depute a lady officer to record the statement of the victim and accordingly, the City D.S.P. allowed women Sub-Inspector Nishamani Das Mohapatra (P.W.5) to record the statement of the victim girl. The Investigating Officer examined P.W.2 and recorded his statement. He visited the spot, prepared the spot map (Ext.21) and also examined other witnesses. P.W.19 sought for the assistance of an interpreter for recording the statement of the victim lady as she was unable to speak and from her Page 4 of 24 // 5 // gesture and posture, P.W.19 could not understand anything. Supriya Pattnaik (P.W.4), Assistant Counsellor of Vijaya Swadha came and made conversion with the victim and thereafter, P.W.19 recorded the statement of P.W.4. The appellant Mahavir Rana was apprehended on 24.06.2015 and he was sent for medical examination. The victim was also sent for medical examination. The Investigating Officer (P.W.19) received biological samples as well as the wearing apparels of the victim lady on production of lady constables and those were seized as per seizure list Ext.5. Similarly, the escort party produced the biological samples and wearing apparels of the appellant Mahavir Rana, which were seized as per seizure list Ext.4. Though attempt was taken for recording the 164 Cr.P.C. statement of the victim, but it could not be made successful as the victim was not able to answer anything to the questions put by the Court. The victim was kept in a short stay home i.e. Vijaya Sudhar and on 25.06.2015, the appellant Mahavir Rana was forwarded to the Court. The Investigating Officer received the medical examination report of the victim as well as of the appellant Mahavir Rana. On 05.08.2015, the Investigating Officer made a prayer before the learned S.D.J.M., Puri for forwarding the exhibits to S.F.S.L., Rasulgarh, Bhubaneswar and accordingly, the Court passed order and the exhibits were sent to Director, Page 5 of 24 // 6 // S.F.S.L., Rasulgarh, Bhubaneswar. On the prayer of the Investigating Officer, the finger prints of the victim lady were collected. The Investigating Officer produced the victim lady for medical examination on 22.08.2015 at D.H.H., Puri and the doctor on examination opined that the victim has conceived for three to four months. On the prayer made by the Investigating Officer, the victim was also examined by the Assistant Professor, S.C.B. Medical College and Hospital, Cuttack, who also found that the victim was pregnant and she had a single life intrauterine foetus of fifteen weeks and four days. The victim was left at Vijaya Sudhar Gruha, Puri. The Investigating Officer received the chemical examination report from S.F.S.L., Rasulgarh. A prayer was made to collect the blood group of the appellant Mahavir Rana and accordingly, the Medical Officer, District Jail, Puri collected the blood of appellant Mahavir Rana. On coming to know that the appellant Jagannath Ojha is in judicial custody in connection with another case, the Investigating Officer submitted a remand report against him, however, when information was received that appellant Jagannath Ojha has been released on bail, he was arrested on 03.10.2015 and thereafter, he was sent for medical examination to D.H.H., Puri and also for his blood grouping test. Steps were taken for D.N.A. profiling test of the victim and both the Page 6 of 24 // 7 // appellants generated completely from FTA cards. The Investigating Officer also received the medical examination report of the appellant Jagannath Ojha. On completion of investigation, P.W.19 submitted first charge sheet on 15.10.2015 against both the appellants under section 376(D)(2)(i) of the Indian Penal Code keeping the investigation open as per section 173(8) of Cr.P.C. and on completion of investigation after receipt of D.N.A. test report, he submitted final charge sheet on 01.11.2016. 3. After submission of charge sheet, the case of the appellant was committed to the Court of Session after observing due committal procedure and the case was made over to the learned trial Court for disposal in accordance with law where the learned trial Judge charged the appellants under sections 376(D) of the Indian Penal Code on 19.01.2017 and since the appellants refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. 4. During course of trial, in order to prove its case, the prosecution has examined as many as twenty witnesses. P.W.1 Dr. Sanat Kumar Mohapatra, who was working as Assistant Surgeon at Puri District Jail Hospital, stated that he Page 7 of 24 // 8 // collected blood sample of appellant Mahavir Rana on 01.10.2015 and proved his report marked as Ext.1. P.W.2 Biju Bhola is an independent witness and though he first informed S.I. of Police Bamadev Swain (P.W.18), Singhadwar police station regarding the incident, but did not fully support the prosecution case for which he was declared hostile by the prosecution. P.W.3 Kashinath Subudhi did not support the prosecution case for which he was declared hostile by the prosecution. P.W.4 Supriya Pattnaik was working as Assistant Counsellor of Vijaya Sudhar Gruha, Dattatota, Puri, who was counselling the victim in order to ascertain the actual fact and submitted her report and she proved her report marked as Ext.3. P.W.5 Nishamani Das Mohapatra, who was working as S.I. of Police, Singhadwar police station stated that as per direction of the I.I.C. of Singhadwar police station, she examined the victim. P.W.6 Jambeswar Choudhury and P.W.8 K.T. Satyabadi Das were the constables attached to Singhadwar police station and also the witnesses to the seizure of wearing Page 8 of 24 // 9 // apparels and biological sample of the appellant Mahavir Rana as per seizure lists Exts.4 and 5. P.W.7 Rasmita Parida was working as Sign Language Interpreter at the N.G.O., namely Shree Nrusingha Dev Anchalika Yuba Parishad, Puri and she proved her report marked as Ext.6. P.W.9 Dr. Somya Mishra, who was working as Medical Officer, D.H.H., Puri, examined the victim on 24.06.2015 and proved her report marked as Ext.7. P.W.10 Rajashree Pattnaik was working as Pathologist at D.H.H., Puri, who conducted pathological test of the appellants and the victim and proved her report marked as Exts.10, 11 and 8 respectively. P.W.11 Dr. Santosh Kumar Mishra, who was working as Medical Officer, D.H.H., Puri, examined the appellant Jagannath Ojha on 03.10.2015 and proved his report marked as Ext.13. He also proved his final opinion on the backside of the requisition marked as Ext.14.
Legal Reasoning
P.W.12 Dr. Srikanta Sahoo, who was working as Medical Officer, D.H.H., Puri, examined the appellant Mahavir Rana on 24.06.2015 and proved his report marked as Ext.15. Page 9 of 24 // 10 // P.W.13 Jhunupriya Pujapanda, who was the Assistant Superintendent of Vijaya Swadhar, an N.G.O. stated that the victim was quite abnormal in her attitude. P.W.14 Bijaya Kumar Mallik was the constable attached to Singhadwar police station and also a witness to the seizure of biological samples of the appellant Jagannath Ojha as per seizure list Ext.18. P.W.15 Alok Kumar Barik and P.W.16 Sudeshi Pradhan are the hearsay witnesses, who stated that they saw the appellants standing near the spot and also met P.W.2 and heard about the incident from him. P.W.17 Surendra Sahu did not support the prosecution case for which he was declared hostile by the prosecution. P.W.18 Bamadev Swain, who was working as S.I. of Police, Singhadwar police station, is the informant in the case and supported the prosecution case. P.W.19 Krushna Chandra Sethi was the Inspector in- charge of Singhadwar police station, who is the Investigating Officer in the case. Page 10 of 24 // 11 // P.W.20 is the victim whose deposition could not be recorded as she was found to be not mentally sound. The prosecution exhibited forty one numbers of documents. Ext.1 is the medical examination report of appellant Mahavir Rana, Ext.2 is the 164 Cr.P.C. statement of P.W.2, Ext.3 is the counseling report, Ext.4 is the seizure list of a full shirt, one green colour pant and biological materials, Ext.5 is the seizure list of one napkin and one ganjee, Ext.6 is the counseling report, Ext.7 is the medical examination report of the victim, Ext.8 is the requisition to pathology specialist, Ext.8/2 is the pathological report of the victim, Ext.9 is the forwarding report of P.W.9, Ext.10 is the seminal fluid analysis report of appellant Mahavir Rana, Ext.10/2 is the requisition issued by P.W.11, Ext.11 is the blood examination report of appellant Jagannath Ojha, Ext.11/2 is the requisition issued by P.W.11, Ext.12 is the requisition for collection of blood of the appellants, Ext.13 is the medical examination report of appellant Jagannath Ojha, Ext.14 is the final opinion of P.W.11, Ext.15 is the medical examination report of appellant Mahavir Rana, Ext.16 is the requisition issued by P.W.12 to pathology specialist, Ext.17 is the letter dated 24.06.2015 of P.W.12, Ext.18 is the seizure list of biological samples of appellant Jagannath Ojha, Ext.19 is the D.N.A. test Page 11 of 24 // 12 // report, Ext.20 is the F.I.R., Ext.20/2 is the formal F.I.R., Ext.21 is the spot map, Ext.22 is the requisition issued by P.W.19 for medical examination of the victim, Ext.23 is the requisition issued by P.W.19 for medical examination of the appellant Mahavir Rana, Ext.24 is the prayer of P.W.19, Ext.25 is the prayer of P.W.19, Ext.26 is the prayer of P.W.19, Ext.27 is the extract of order dated 25.06.2015, Ext.28 is the Court order dated 03.07.2015, Ext.29 is the forwarding report to S.F.S.L., Rasulgarh, Ext.30 is the forwarding letter no.1853 dated 05.08.2015, Ext.31 is the acknowledgement receipt, Ext.32 is the medical report of the victim, Ext.33 is the S.D. Entry dated 24.06.2015, Ext.34 is the chemical examination report of S.F.S.L., Rasulgarh, Ext.35 is the prayer of P.W.19, Ext.36 is the forwarding letter vide memo no.2513 dated 06.10.2015, Ext.37 is the acknowledgement receipt, Ext.38 is the identification form of appellant Jagannath Ojha, Ext.39 is the identification form of appellant Mahavir Rana, Ext.40 is the identification form of the victim lady and Ext.41 is the forwarding letter no.2532 dated 08.10.2015. The prosecution also proved six material objects. M.O.I is the seized napkin of victim lady, M.O.II is the seized print shirt of the victim, M.O.III is the seized maroon colour sleeveless vest of appellant Mahavir Rana, M.O.IV is the seized Page 12 of 24 // 13 // green colour full pant of appellant Mahavir Rana, M.O.V is the seized gray colour short pant and M.O.VI is the seized sky colour full shirt of appellant Jagannath Ojha. No witness was examined on behalf of the defence. 5. The defence plea of the appellants is one of denial and it is pleaded that they have been falsely implicated in the case. 6. The learned trial Court after analyzing the oral as well as documentary evidence on record has been pleased to hold that the victim (P.W.20) being mentally unsound has not stated anything against the appellants. The doctor (P.W.9), who examined the victim on 24.06.2015 stated that the victim was capable of committing sexual intercourse and she was pregnant. It was further held that the testimonies of P.W.2, P.W.15, P.W.16 and P.W.18 are credible, corroborative and reliable and the false explanation by the appellants that they have not committed the offence and that they were not present at the spot on 24.06.2015 morning at 4.30 a.m. are the circumstances proving the fact of rape, which has been proved by the medical evidence. The learned trial Court further held that in view of the oral as well as documentary evidence coupled with the D.N.A. test report, it was of the considered opinion that offence of rape has been committed on the victim by the appellants and Page 13 of 24 // 14 // accordingly, held both the appellants guilty under section 376(D) of the Indian Penal Code. 7. Miss Anima Kumari Dei, learned Amicus Curiae appearing for the appellant Jagannath Ojha in JCRLA No.83 of 2019 and Mr. Biswajit Ranjan Tripathy, learned Amicus Curiae appearing for the appellant Mahavir Rana in JCRLA No.84 of 2019 urged that when the victim (P.W.20) being examined in the learned trial Court could not able to say anything about the incident, could not identify the appellants present in the dock and her evidence could not be recorded as she was found to be not mentally sound. The medical evidence which has been adduced by P.W.9 indicates that there was no injury on the private parts on the body of the victim, there was no matting of pubic hair and no old or new injuries on the person or private parts of the victim even though the victim was examined on the date of alleged occurrence itself. P.W.2, who is a vital witness on behalf of the prosecution, has not supported the prosecution case for which he was declared hostile. It is urged that the learned trial Court should not have held the appellants guilty relying on the D.N.A. profile test report which has been marked as Ext.19. Learned Amicus Curiae for the appellants urged that the wearing apparels of the appellant Mahavir Rana was seized on 24.06.2015 so also that of the victim but it was sent for Page 14 of 24 // 15 // chemical analysis on 05.08.2015 and there is no evidence as to in what condition the wearing apparels were kept and therefore, no reliance can be placed on the D.N.A. test report as well as the chemical examination report marked as Ext.34 and it is a fit case where benefit of doubt should be extended in favour of the appellants and the impugned judgment and order of conviction of the appellants should be set aside. Mr. Rajesh Tripathy, learned Additional Standing Counsel for the State of Odisha, on the other hand, supported the impugned judgment and contended that even though the victim could not be examined on account of her mental unsoundness and the doctor (P.W.9) could not find any sign or symptom of rape on the victim but the D.N.A. profile generated from the vaginal swab of the victim matched with the D.N.A. profile generated from the blood sample of the appellant Mahavir Rana as well as from his full pant, D.N.A. profile generated from the napkin of the victim matched with sample blood of both the appellants collected on FTA card and the D.N.A. profile generated from full shirt of the victim matched with the D.N.A. profile generated from sample blood of appellant Jagannath Ojha collected on FTA card and the learned trial Court has rightly held that D.N.A. test report deserved to be accepted, unless it is absolutely dented and for non-acceptance of the same, it is to be Page 15 of 24 // 16 // established that there had been no quality control or quality assurance. It is urged that when the sampling was proper and there was no evidence of tampering with the sample, the D.N.A. test report is to be accepted. It is urged that the manner in which the crime has been committed on a mentally retarded lady and in view of the evidence adduced by the prosecution, both the Jail Criminal Appeals should be dismissed. 8. Adverting to the contentions raised by the learned counsel for the respective parties and coming to the evidence of the victim (P.W.20), it appears that when she was produced by the Investigating Officer before the learned trial Court on 15.05.2018 for recording of her evidence, on being asked, she could not tell her father’s name and address, she talked incoherently and unable to say anything about the incident, she even could not even identify the appellants, who were present in the dock and unable to say anything about the occurrence. The victim appeared to the Court to be not mentally sound for which her deposition could not be recorded and she was discharged. In a case of this nature, undoubtedly the victim is the star witness and there is no evidence from her side. The doctor (P.W.9), who examined the victim on 24.06.2015 at D.H.H., Puri on police requisition, found that there was no injury on her private parts and body, no matting of pubic Page 16 of 24 // 17 // hair, no foreign particles found and there were no old or new injuries on her person or private parts. The victim was found to be pregnant and her age was approximately eighteen to twenty five years. The doctor specifically stated that the normal examination finding neither refuted nor confirmed recent forcible sexual intercourse. Therefore, the medical evidence is no way helpful to the prosecution to prove its case. Another important witness examined on behalf of the prosecution is P.W.2 on whom the learned trial Court has placed reliance. P.W.2 has stated that on 24.06.2015 at about 4.30 a.m. (early morning), while he was coming to open his shoe stand through Shyamakali club lane, he saw one woman was lying on the ground near Shyamakali temple and two persons were sitting near her and one of them fled away seeing him and he went near the woman and saw that she had covered a towel and check shirt and when he asked her as to why she was sitting there, she did not give any reply. He further stated that the appellant Rana fled away from the spot where the victim was lying. The witness was declared hostile by the prosecution. Leading questions were put to P.W.2 about his previous statement recorded under section 164 Cr.P.C. and he admitted that he had stated before the Magistrate that at Shyamakali lane, he heard about the shout of one woman and when he Page 17 of 24 // 18 // proceeded near her, he saw in an open shop, three persons had pounced over that woman and that when they saw him, they fled away and that he knew the culprit Rana, who was working as a daily labourer at Bada Danda. P.W.2 admitted in the cross- examination by the defence counsel that he had not stated before police that two culprits fled away from the spot and that she knew one culprit Rana from them. Law is well settled that the statement recorded under section 164 of Cr.P.C. is not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under section 164 Cr.P.C. and that what he had stated there was true would not make the entire statement admissible much less than any part of it could be used as substantive evidence in the case. (Ref:- A.I.R. 1960 Supreme Court 490, (State of Delhi -Vrs. Shri Ram Lohia). Therefore, the evidence of P.W.2 is also no way helpful to prove the accusation of gang rape against the appellants. Though the learned trial Court has placed reliance on the evidence of P.W.15, P.W.16 and P.W.18, but it appears that P.W.15 has simply stated that while he was sleeping near cloth store at Laxmi Mandap Chhak and woke up, he found the appellants were standing there and that he met P.W.2 on the Page 18 of 24 // 19 // way who told him that while he was going to park his two wheeler, he heard crying sound of a lady coming out near Mangu Math side and that he found the appellants were running from that place. P.W.2 has not stated to have disclosed anything to P.W.15 and he himself has not even whispered the name of appellant Jagannath Ojha. Therefore, the evidence of P.W.15 is a hearsay one. Hearsay evidence is that evidence which a witness is merely reporting not what he himself saw or heard, not what has come under the immediate observation of his own bodily senses, but what he had learnt respecting the fact through the medium of a third person. Hearsay, therefore, properly speaking is secondary evidence of any oral statement. Thus the evidence of P.W.15 is no way helpful to the prosecution. Similar is the statement of P.W.16 who stated to have heard from P.W.2 that the appellants were running away from the spot. Since the evidence of P.W.2 is silent that he made any such disclosure before P.W.16, the evidence of P.W.16 is not admissible being a hearsay one. P.W.18, who is the S.I. of Police of Singhadwar police station has also made similar statement like P.W.15 and P.W.16 that P.W.2 has disclosed before him that on 24.06.2015 at about 4.15 a.m. that while he parked his motorcycle at Shyamakali club lane, he heard shouting and when he proceeded to an under Page 19 of 24 // 20 // construction house, the appellant Mahavir Rana along with two others who were present there fled away. P.W.2 has not stated anything to have disclosed before P.W.18. Therefore, the evidence of P.W.18 cannot be acted upon to hold the appellants guilty of the offence charged. 9. Coming to the D.N.A. test reports, it appears that the wearing apparels of the appellant Mahavir Rana was seized on 24.06.2015 so also that of the victim, but those were sent for chemical analysis on 05.08.2015 and there is no evidence as to in what condition, the wearing apparels were kept and with whom. There is absolutely no evidence that after seizure of the wearing apparels, those were kept in sealed condition in safe custody. In case of Rahul -Vrs-. State of Delhi reported in (2023) 1 Supreme Court Cases 83, the Hon’ble Supreme Court held as follows:- “37. xxx xxx xxx 18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene Page 20 of 24 // 21 // of crime matches with the DNA profile of the suspect, it can generally be concluded that both the samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory. 38. It is true that P.W.23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of Page 21 of 24 // 22 // the samples sent for examination were also not free from suspicion.” In absence of any evidence of proper preservation of the seized wearing apparels and samples, the chance of tampering with the same cannot be ruled out. The Scientific Officer has not been examined to prove the D.N.A. profiling test report vide Ext.19. Therefore, it would be very risky to convict the appellants on the basis of such report. 10. In view of the foregoing discussions and having regard to the totality of the circumstances and evidence on record, when there is no evidence from the star witness of the prosecution i.e. the victim and the medical evidence is completely silent and the other oral evidence adduced by the prosecution is not that clinching and does not point to the guilt of the appellants and in absence of any evidence in keeping the seized articles in a safe custody before those were sent for D.N.A. test as well as chemical test, it is very difficult to hold that the prosecution has successfully proved the guilt of both the appellants beyond all reasonable doubt by adducing cogent and clinching evidence and therefore, the judgment and order of conviction of the appellants is not sustainable in the eye of law. Accordingly, both the Jail Criminal Appeals are allowed. The impugned judgment and order of conviction of the Page 22 of 24 // 23 // appellants under section 376(D) of the Indian Penal Code and the sentence passed thereunder is hereby set aside and both the appellants are acquitted of such charge. They shall be set at liberty forthwith, if their detention is not otherwise required in any other case. From the impugned judgment, it appears that the learned trial Court has directed the matter to be placed before the D.L.S.A., Puri for deciding the quantum of compensation to be paid to the victim and disbursement. If no compensation has been paid to the victim in the meantime, keeping in view the Odisha Victim Compensation (Amendment) Scheme, 2018 as per the notification dated 20.10.2018 of Government of Odisha, Home Department, the District Legal Services Authority, Puri shall examine the case of the victim after conducting necessary enquiry in accordance with law for grant of compensation amount to the victim. Trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. Before parting with the case, I would like to put on record my appreciation to Miss Anima Kumari Dei, learned Amicus Curiae on behalf of the appellant Jagannath Ojha @ Jaga @ Jaguni @ Jatia @ Potala @ Dhuna in JCRLA No.83 of 2019 and Page 23 of 24 // 24 // Mr. Biswajit Ranjan Tripathy, learned Amicus Curiae on behalf of the appellant Mahavir Rana in JCRLA No.84 of 2019 for rendering their valuable help and assistance towards arriving at the decision above mentioned. Each of the learned Amicus Curiae shall be entitled to their professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only) each. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 22nd February 2023/Pravakar/RKMishra Page 24 of 24