Pradip Kumar Mediniray vs State Of Odisha
2021 Latest Caselaw 13022 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                         CRLA No.437 of 2013


   Pradip Kumar Mediniray                      ....           Appellant
                                   -versus-
   State of Odisha                             ....         Respondent


   Appeared in this case:

   For Appellant               :          Mr. Devashis Panda, Advocate

   For Respondent              :                        Mr. J. Katikia,
                                       Additional Government Advocate

     CORAM:
     THE CHIEF JUSTICE
     JUSTICE A. K. MOHAPATRA


                              JUDGMENT

23.12.2021

Dr. S. Muralidhar, CJ.

1. This appeal is directed against the judgment dated 23rd July, 2013 passed by the Sessions Judge, Balasore in Sessions Trial No. 192(B) of 1995 whereby the Appellant was convicted apart from the offence under Section 302 IPC, to the offence under Section 376(2)(g) of the IPC as well as under Section 377/34 IPC. He was sentenced to life imprisonment for the offence under Section 302/34 IPC and to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment (RI) for a period of six months and RI for a period of 10 years and a fine of Rs.10,000/-, in default to undergo further RI

for a period of six months for the offence under Section 376(2)(g) IPC. For the offence under Section 377/34 IPC, he was sentenced to RI for 10 years and a fine of Rs.10,000/- and in default to undergo further RI for six months. These sentences were directed to run concurrently.

2. The prosecution case in brief are that, one Padmalochan Sahu, son of Chintamani Sahu of village Kadamasahi gave a written report at the Nilgiri Police Station to the Officer-in-Charge stating that his niece 'A', aged about 12 years along with her younger brother Jogeswar Sahu, aged about 8 years went to the village to have a bath. It is stated that while Jogeswar Sahu was bathing, he noticed that 'A' was going towards Rajabagicha to ease herself. When after half an hour she did not return, he informed the mother and thereafter they undertook a rigorous search. They could not trace 'A'. When it was learnt later that they found the dead body of 'A' near the place where she had been to ease out, was lying, there were injuries all over. The informant found the deceased "in a naked condition facing downward and blood was oozing out from her private parts, anus, chest, mouth and nose. There were injuries all over her body." An inquest was conducted over the dead body in the presence of an Executive Magistrate.

3. On 18th June 1995, the Circle Inspector of Police (Nilgiri Circle) took charge of investigation; during the investigation, he arrested the present Appellant along with others. The wearing apparels of the deceased were seized from the spot. One Inspector B.K. Mishra,

CRLA No.437 of 2013 CID (Crime Branch) took over the charge on 1st July, 1985 from his predecessor. The charge-sheet was filed against the accused persons under Sections 376(2)(g), 377 and 302 IPC.

4. There are certain developments which require to be taken note of as far as the present appeal is concerned. These have been set out in a note submitted to this Court by Mr. Devashis Panda, learned counsel for the present Appellant. It is stated therein that the present Appellant is one of the three accused persons charged with the aforementioned offences connected with the rape and murder of the deceased at around 10 am on 17th June, 1995. The three accused faced trial at different points in time. Sanatan Behera was the first of the accused who faced trial in S.T. Case No.192 of 1995 and was acquitted on 29th May, 1998. As far as accused Umesh Chandra Rana is concerned, he faced trial in S.T. Case No.192 (A) of 1995. He was convicted for the offences under Section 302/376(2)(g), 377 read with Section 34 of IPC by the judgment dated 3rd October, 2002 of the trial Court.

5. The present Appellant was initially arrested on 20th June, 1995 and remained in custody at the Sub-Jail in Nilagiri till 11th December, 1995. He was then shifted to District Jail, Balasore where he remained from 12th December, 1995 till 17th June, 1996. It appears that he then absconded for a period of over 13 years till 4th November, 2009. During this period the mother of the present Appellant filed OJC No.8473 of 1997 in this Court praying for a fresh investigation. By an order dated 31st July, 1997 this Court

CRLA No.437 of 2013 disposed of the said writ petition directing the Appellant's mother to file an appropriate application before the trial Court.

6. The Appellant's mother then filed a petition in the trial Court on 21st August, 1997 praying for a direction that the investigation should be handed over to the Central Bureau of Investigation (CBI). More than two years thereafter on 17th September, 1999 the learned Sessions Judge, Balasore allowed the mother's petition and directed the prosecution to handover the documents to the CBI for investigation. The Appellant claims that the proceedings against him were kept "in abeyance".

7. The Appellant further claims that because of the above order, he was under the bona fide belief that all proceedings against him had been stayed and that he had to await the conclusion of the CBI inquiry. He states that thereafter on 4th November, 2009 he was arrested i.e. more than 13 years after he had gone absconding. In the meanwhile, since there was no fresh investigation by the CBI the Appellant himself filed a writ petition criminal i.e. WPCRL No.144 of 2003 in this Court asking again for a fresh investigation. This Court disposed of the writ petition permitting the Appellant to raise all the contentions before the trial Court and the trial Court was asked to consider them uninfluenced by the judgment of this Court or by the decision of the trial Court in the trial of the other two accused Sanatan Behera and Umesh Chandra Rana.

CRLA No.437 of 2013

8. The above background facts are relevant in the context of the contention of the Appellant that the statements of the PWs in the other two trials could not be used against him. In PW 4 (Abhimanyu Nayak) who was the sole eyewitness to the incident turned hostile in the trial. The contention is that the trial Court committed a gross illegality by letting the prosecution to rely on the previous evidence of P.W.4 as Exts. 19 and 20 in spite of the judgment dated 28th June, 2004 of this Court in W.P.(Crl) No.144 of 2003.

9. Twelve prosecution witnesses (PWs) were examined. The trial Court after analysing the evidence, held the Appellant guilty of the offences charged with and sentenced him as noted hereinbefore.

10. With the help of learned counsel for the Appellant and the learned AGA, this Court has examined the entire evidence in detail. The Medical Examination Report revealed "that a girl of 13 years has sustained abrasion on upper part of both breasts, left face and injury of left shoulder. There was a large tear on anus with muscle exposed with huge blood clots (1½" x 1½"). There was a clot in the hymen and post-vaginal wall with blood clot (1½" x 1" x ¾") which was ante-mortem in nature. It is further opined that all the above injuries are ante-mortem in nature and injuries in her private parts might have been caused due to rape and cause of death was due to shock and hemorrhage due to bleeding from private parts and anus."

CRLA No.437 of 2013

11. The Medical Officer (MO) who conducted the post-mortem received a requisition from the Investigating Officer (IO) for a query for which answers read as under:

"(i) If penetration of male organ inside the vagina ruptured the hymen of deceased 'A',

(ii) Whether the deceased was raped by more than one,

(iii) The immediate cause of death,

(iv) How much time took the deceased to die after rape,

(v) Is there any other reason than rape over the death of the deceased?

12. To this, the Medical Officer submitted his report vide Ext.14 certifying that

(i) It is possible that penetration of male organ caused rupture to the hymen of deceased 'A',

(ii) it is possible that 'A' has been raped by more than one person,

(iii)Shock and haemorrhage might have been the immediate cause of death,

(iv) the girl can die due to shock within few minutes and death might have been a combined result of shock and haemorrhage,

(v) no other point regarding cause of death could be found from postmortem examination. All vital organs particularly heart stopped and all heart-chambers were empty."

13. The trial Court noted that the Post-Mortem Examination Report and the Query Report submitted by the MO were marked as exhibits without any objection by the defence. With the doctor

CRLA No.437 of 2013 opining that the death was due to shock, pain, bleeding and haemorrhage and that the girl was gang raped, it was obvious what the cause of the death was. The trial Court also discussed the evidence of PW 4 Abhimanyu Nayak. However, the said witness resiled from his earlier statement and was then cross-examined by the prosecution.

14. The accused too underwent medical examination and he was found to have had an abrasion on ventral aspect of right forearm 3" below right elbow. The length and size of the injuries were described in the report. The MO has opined "that the injuries on the body of accused might have been caused by contact with sharp pointed object in coming in contact with hard and rough surface and these injuries can be caused by Kia bush/nail."

15. The trial Court also disbelieved the plea of false implication of the present Appellant as a result of political rivalry. This was disbelieved by the trial Court particularly in view of the fact that the doctor who conducted autopsy gave an opinion that "the death of the deceased was due to shock, pain, bleeding and haemorrhage, in my considered views, prosecution has well established its case against the accused to be one of the culprits of the gang rape on the deceased girl on the alleged date and time of occurrence resulting her death."

16. In his examination-in-chief, PW 4 claimed to know both the Appellant and the deceased. He correctly stated the time and place

CRLA No.437 of 2013 of the incident, between 10 to 10.30 am on 17th June, 1995. However, he resiled from the remaining portion of his previous statement to the police, and the public prosecutor (PP) moved the trail Court to have him declared hostile. The relevant portion of the examination in chief of PW 4 reads as under:

"At that time I was going to the house of Harinath situated in our village. On the way in order to make watered I stood by the side of the road and while urinating I found at a little distance one Umesh Rana sitting wearing a Lungi and one Sanatan Behera was standing. As it was covered by bushes and as it stood at a little distance I could not see properly. Then I proceeded towards the house of Harinath for playing cards. Around 11.00 a.m. fire brigade vehicle arrived near the village tank. Previously also I was examined in connection with the case.

P.P. files a petition u/s 154 Evidence Act to confront this witness with his earlier statements. Heard. It is allowed."

17. After having been declared hostile by PP, PW 4 denied having seen the Appellant lying naked over a girl while the co-accused Umesh had caught hold of the front portion of the girl and the girl was also naked. He denied having stated before the Court that he had seen the present Appellant committing rape on the deceased. He denied that for extraneous considerations, he was resiling from the previous statement and was suppressing truth out of fear of the Appellant. He further denied as under:

"It is not a fact that even though I had stated before the I.O. about witnessing the accused committing rape on the minor girl I am suppressing such fact."

CRLA No.437 of 2013

18. In his cross-examination by the counsel for the accused, PW 4 denied that on 17th June, 1995 he had met Padmalochan Sahoo (PW

1) and Ram Chandra Sahoo.

19. The trial Court treated the evidence of PW 4 as that of a hostile eye witness, and did not discard his evidence in toto. In discussing the evidence of PW 4 the trial Court referred to the judgment in Bhagaban Dass v. State (NCT) of Delhi (2011) 49 OCR (SC) 537 where the Supreme Court held that the evidence of a hostile witness could not be totally rejected. On a careful scrutiny such "portion of the evidence which is consistent with the case of the prosecution or the defence may be accepted." Reference was also made to the decision in Sheikh Zakir v. State of Bihar AIR 1983 SC 911 where the Supreme Court has observed as under:

"It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a Court from finding an accused guilty if there is otherwise acceptable evidence in support of the conviction."

20. The trial Court also referred to the decision in Himanshu alias Chintu v. State (NCT of Delhi) (2011) 2 SCC 36 where it was observed as under:

"It is the duty of the Court to separate the grain from the chaff and the maxim "falsus in uno falsus in omnibus" has no application in India vide Nisar Ali v.

The State of Uttar Pradesh AIR 1957 SC 366. In the present case we are of the opinion that Smt. Dhillo Devi denied her earlier statement from the police because she wanted to save her son. Hence, we accepted her statement to the police and reject her statement in Court. The defence has not shown that

CRLA No.437 of 2013 the police had any enmity with the accused or had some other reason to falsely implicate him."

21. The trial Court after noticing that the same PW 4 had supported the prosecution in the trial against the co-accused and then observed that it had no hesitation in accepting his statement made before the police and rejecting his evidence in the Court.

22. Mr. Devashish Panda, learned counsel for the Appellant placed extensive reliance on the judgment of the Supreme Court in Tahsildar Singh v. State of U.P. AIR 1959 SC 1012 to urge that the statements recorded by the police under Section 162 Cr PC can be used only for contradicting the witness and not for any other purpose. Since this was the central plank of the defence of the Appellant, the Court proposes to discuss it in some detail.

23. In Tahsildar Singh (supra) the Supreme Court observed as under:

"The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all : only question to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of learned counsel based upon S. 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of S.162 of the Code of Criminal Procedure."

CRLA No.437 of 2013

24. The Supreme Court then went on to explain the legislative intent in treating the statement under Section 162 Cr PC to be of non-evidentiary value "except for the limited purpose of contradiction." The Court proceeded to explain as under:

"Section 145 of the Evidence Act deals with cross- examination in respect of a previous statement made by the witness. One of the modes of cross- examination is by contradicting the witness by referring him to those parts of the writing which are inconsistent with his present evidence. Section 162, while confining the right to the accused to cross- examine the witness in the said manner, enables the prosecution to reexamine the witness to explain the matters referred to in the cross-examination. This enables the prosecution to explain the alleged contradiction by pointing out that if a part of the statement used to contradict be read in the context of any other part, it would give a different meaning; and if so read, it would explain away the alleged contradiction. We think that the word "cross- examination" in the last line of the first proviso to s. 162 of the Code of Criminal Procedure cannot be understood to mean the entire gamut of cross- examination without reference to the limited scope of the proviso, but should be confined only to the cross- examination by contradiction allowed by the said proviso".

25. While it is arguable that the procedure adopted by the trial Court in relying on the statement made by PW 4 in the trial of the co-accused, even while ignoring his having resiled from his previous statement in the present trial, was irregular, the Court finds that the conviction of the present Appellant did not hinge only on the retracted evidence of PW 4. There was other evidence to bring home the guilt of the present Appellant beyond reasonable doubt.

CRLA No.437 of 2013

26. Janaki Mohanty (PW 6) stated in her evidence that on the fateful day while returning from the pond after bathing she found the Appellant "going towards the pond and reaching near my house". She found 'A' along with her brother going to the village pond for bathing. On that day in the evening 'A' had been murdered. Nothing much could be elicited from this witness in order to discredit her testimony. In reply to a question asked during cross examination she answered that "on that day (she) had not talked neither with the accused nor with the deceased." In other words, the fact of PW 6 having seen the Appellant at around the time of the incident and at the place where it took place, stands firmly established.

27. The younger brother who accompanied the deceased when she sent to the village pond was PW 3, Jogeswar Sahu. It was he who saw the deceased and went to the Rajabagicha to attend the call of nature. The evidence of PWs 3 and 4 provide important links in the chain of circumstances regarding the presence and identity of the Appellant at the place of occurrence.

28. Then we have the medical evidence which proves beyond doubt that the death was homicidal. Importantly the medical examination of the Appellant also pointed to his involvement. The Medical Officer on examining the Appellant found abrasion on ventral aspect of right forearm 3" below right elbow situated parallel to each other of size ¾" x ¼". Other injuries were on the left chest on the sculpture region of size ½" long, ¼" breadth and of size 1" long,

CRLA No.437 of 2013 1/8" breadth. The opinion of the medical officer was that the injuries to the Appellant might have been caused by a sharp pointed object coming in contact with a hard and rough surface "and these injuries can be caused by Kia bush/nail."

29. The failure of the defence to explain injuries on the Appellant was taken as important circumstance incriminating him. In this regard the trial court went to observe as under:

"Strong incriminating material found against the accused since the spot is inside the kewda bush and accused sustained injury which has been caused in coming in contact with the pointed edge of kewda leaves as per the unchallenged medical report. These are all positive linking circumstances and unimpeachable character."

30. The medical evidence thus placed it beyond the pale of doubt that the death was homicidal; that it was as a result of brutal rape thus attracting the offences under Sections 376 and 377; that the Appellant was himself injured and could not explain his injuries. The other evidence, of a reliable character, proved the other links in the chain of circumstances regarding his identity and presence at the scene of crime. Each of the circumstances thus formed a continuous chain and pointed unerringly to the guilt of the present Appellant.

31. Mr. Devashis Panda, learned counsel for the Appellant, then referred to what he termed as contradictions in the evidence of the mother (PW 5) when compared to that of PW 1 regarding the location of the dead body. In the considered view of the Court the

CRLA No.437 of 2013 said contradictions were not material and do not discredit either of the said witnesses.

32. Mr. Panda then sought to poke holes in the medical evidence as regards the approximate time of death as indicated in the post- mortem report. Having carefully perused the medical evidence, the Court finds that this again is not a material defect. The medical evidence in this regard was not meant to be accurate.

33. There is doubt whether the three documents Exts.-A, B and C were in fact brought on record by the defence. Be that as it may, in a case of this nature, it is indeed hard to come across direct evidence. Nevertheless, the inevitable conclusion is that prosecution succeeded in establishing the guilt of the Appellant beyond all reasonable doubt.

34. In that view of the matter, there is no merit in the present appeal and it is dismissed as such.

(S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

M. Panda

CRLA No.437 of 2013