DSREF No. 3 of 2013 and Crl. A. No. 242 of 2013. Case: State of Orissa Vs Mishra Paraja. High Court of Orissa (India)
| Case Number | DSREF No. 3 of 2013 and Crl. A. No. 242 of 2013 |
| Counsel | For Appellant: D.P. Das, Adv. and For Respondents: Bishnu Prasad Pradhan, Addl. Govt. Adv. |
| Judges | P. Mohanty and Biswajit Mohanty, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 172(2), 313; Indian Evidence Act, 1872 - Sections 106, 8; Indian Penal Code 1860, (IPC) - Sections 294, 302, 354, 376, 506 |
| Citation | 2014 CriLJ 2816 |
| Judgement Date | February 21, 2014 |
| Court | High Court of Orissa (India) |
Judgment:
Biswajit Mohanty, J.
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The present Death Reference No. 3 of 2013 arises out of Criminal Trial No. 67 of 2011 in which the learned Sessions Judge, Nabarangpur has held the accused guilty of offence under Sections 376/302 of I.P.C. and accordingly convicted him thereunder. On such conviction, the learned Sessions Judge, Nabarangpur sentenced the convict to death under Section 302 of I.P.C. read with Section 376 of I.P.C. and further directed that the convict be hanged by neck till his death. The learned Sessions Judge further directed that the proceedings be submitted to this Court for confirmation of death sentence. Challenging the aforesaid order of conviction and sentence, the convict Mishra Paraja has filed CRLA No. 242 of 2013 before this Court. In such background, the above noted death reference and criminal appeal having been heard together are being disposed of by this common judgment. Prosecution case in brief is that on 27.02.2011 at about 4.00 p.m., the deceased, Lachhandei Gond was sitting under a mango tree bordering the land of P.W.6 and P.W.8. P.W.6 is the wife of P.W.8 and at that time both of them were working in their field. The convict-appellant at that point of time came to the spot and removed the wearing saree of the deceased and committed rape on her. When the deceased cried, P.W.6 rushed to the spot and P.W.8 proceeded to the village to call the villagers. On reaching the spot, P.W.6 dragged out the convict-appellant, who was then sleeping over the deceased in naked condition and was having sex with her. P.W.6 dealt two slaps to the convict-appellant and admonished him. Being infuriated, the convict-appellant chased away P.W.6 in naked condition saying that he would also commit rape to P.W.6 and would kill her. So, P.W.6 ran away to the village out of fear to inform the villager. Thereafter, both P.W.6 and her husband, P.W.8 came to the spot along with other villagers and found the dead body of the deceased. According to P.W.8, he reached the spot about 10 minutes after the incident. P.W.1, who happens to be the informant and son of the deceased on being informed by P.W.8 also rushed to the spot along with other villagers and found that his mother was already dead and the convict-appellant was carrying the dead body of his mother in naked condition putting her on his shoulder towards 'Masanipada' burial ground. Immediately P.W.1 along with others detained the convict-appellant there and came to Umerkote P.S. to lodge the F.I.R. under Ext. 8. The said F.I.R. under Ext. 8 was scribed by P.W.16 as per the instruction of P.W.1. On the strength of the said report, the police registered Umerkote P.S. Case No. 46 of 2011 and took up the investigation. During course of investigation, the I.O. examined the informant and others, conducted the inquest over the dead body of Lachhandei Gond. The police also made requisition for post-mortem examination of the dead body of the deceased. They also seized the wearing apparels of both the accused and deceased and sent different materials for chemical examination to Regional Forensic Science Laboratory, Berhampur, Ganjam. The police arrested the convict-appellant on 27.02.2011 and forwarded him. On completion of investigation, the police submitted charge-sheet against the convict-appellant on 24.06.2011 for offences under Sections 302/376/294/506 of I.P.C. The learned J.M.F.C., Umerkote by order dated 12.08.2011 took cognizance of offence under Sections 302/376/294/506 of I.P.C. in G.R. Case No. 121 of 2011 arising out of Umerkote P.S. Case No. 46 of 2011. Subsequently, the learned J.M.F.C. committed G.R. Case to the court of learned Addl. Sessions Judge, Nabarangpur. On the basis of said commitment, Criminal Trial No. 67 of 2011 was registered in the court of learned Sessions Judge, Nabarangpur. By order dated 21.08.2012, the learned Sessions Judge, Nabarangpur framed charges under Sections 302/376 of I.P.C. against the present convict-appellant. The convict-appellant stood his trial under Sections 302/376 of I.P.C. for committing murder and rape on the deceased, Lachhandei Gond. The plea of the convict-appellant before the learned Sessions Judge was of complete denial.
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In order to establish the charges against the convict-appellant, the prosecution examined as many as 18 witnesses. P.W.1 is the informant, who is the son of the deceased. P.Ws. 1, 2, 3, 4, 5, 7, 10 and 12 are post occurrence witnesses, who have come to the spot after the alleged occurrence. P.Ws.6 and 8 claimed to have seen part of the occurrence, particularly relating to rape. P.W.9 is the doctor who conducted the post-mortem of the deceased and prepared post-mortem report under Ext.4. P.W.14 is the doctor, who examined the convict-appellant on police requisition and prepared his report under Ext.6. P.W.16 is the scribe of the F.I.R. (Ext.8). P.W.13 is a witness to the seizure. P.Ws. 11 and 15 have not deposed anything regarding occurrence. P.W.17 and P.W.18 are the Investigating officers.
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The convict-appellant did not lead any evidence in his defence. After closure of prosecution evidence, the convict-appellant was examined under Section 313 of Cr.P.C. He answered the questions in negative and took the plea that he has been falsely implicated by the villagers on account of enmity. Upon completion of trial, the learned Sessions Judge came to the conclusion that the prosecution has established its case beyond all reasonable doubt and accordingly found the convict-appellant guilty under Sections 302/376 of I.P.C. and sentenced him to death under Section 302 of I.P.C. The learned Sessions Judge did not inflict separate punishment on the convict-appellant in respect of offence of rape punishable under Section 376 of I.P.C.
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In assailing the impugned judgment, Shri D.P. Das, learned counsel for the convict-appellant submitted that as regards commission of offence of rape, there is absolutely no evidence whatsoever to sustain the charge and that the trial court has relied on conjectures and surmises to record a conviction of appellant under Section 376 of I.P.C. According to him apart from the fact that there is no oral evidence from the side of the victim since she died, the medical evidence totally rules out commission of offence of rape in the instant case. In this context, he relied on the evidence of doctors, P.W.9 and P.W. 14. P.W.9 conducted autopsy on the dead body of the deceased and P.W.14 examined the accused on police requisition. In this context, he submitted that here is a case where medical evidence is totally inconsistent with ocular evidence and this totally improbabilises the version of eye-witnesses (P.Ws 6 & 8) with regard to commission of rape. In such background, he submitted that under such circumstances medical evidence is to be preferred over the version of eye-witnesses. According to him, this is not a case of variance between oral evidence of eye-witnesses and that of medical evidence. This is a case, where medical evidence totally rules out the versions of the eye-witnesses. In this context, he relied on the decisions of Hon'ble Supreme Court as reported in AIR 2008 SC 533 (Kapildeo Mandal & others v. State of Bihar) and (2009) 11 SCC 566: (AIR 2009 SC (Supp) 272) (State of U.P. v. Dinesh). He further submitted that the decisions relied upon by the learned Sessions Judge at para-19 of the judgment for giving primacy to eye-witness are factually distinguishable. Secondly, he submitted that not only the medical evidence but also the chemical examination report and other circumstances disprove the allegation of rape. According to him as per the chemical examination report submitted under Ext.13, stains of semen, stains of blood and foreign hairs could not be detected in the exhibits supplied under Ext. 12. Thirdly, he submitted that there exists great contradiction in the evidence of P.W.6 and the statements made by P.W.17 during the cross-examination. In this context, he submitted that in the cross-examination, P.W.17 stated that P.W.6 never stated before him that at the time of commission of rape on the deceased, she was in naked condition and the accused in naked condition was sleeping on her while committing rape and that the accused was throttling the neck of deceased. Though such things as pointed out by P.W. 17 were not put to P.W.6 in her cross-examination, however, the learned trial court could have looked into the case diary and on that basis should have thrown out the version of P.W.6 relating to rape. In this context, Mr. Das relied on two decisions as reported in 1997 Criminal Law Journal 398 (Manohar v. State of Karnataka) and AIR 1989 Supreme Court 144 (Mukund Lal and another v. Union of India and another).
As regards conviction under Section 302 of I.P.C. for causing murder is concerned, according to Shri Das, evidence from the side of prosecution is equally deficient. Though the deceased is found to have died out of asphyxia due to strangulation, admittedly, nobody has seen the assault on the deceased by the convict-appellant. So far as use of last seen theory by the trial court is concerned, Mr. Das, submitted that the same cannot be the sole basis for holding a person guilty of murder. In this context, he relied on a decision reported in AIR 1979 SC 1620 (Lakhanpal v. The State of Madhya Pradesh). Secondly, he submitted that in any criminal case, motive plays an important role. But here is a case, according to him, where the prosecution has not come up with a specific reason as to why the convict-appellant would take away the life of the deceased. Since the allegation of rape is found to be false, there is no reason as to why the convict-appellant would do away with the life of the deceased. In absence of any motive and whatsoever, causing murder of an old lady does not stand to reason. Thirdly, he submitted that there exists no scientific evidence to connect the accused with the murder of the deceased. According to...
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