Pradeep Dehuri vs State Of Orissa
2023 Latest Caselaw 1415 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                             CRLA No.165 of 2016
     In the matter of an Appeal under Section 374(2) of the Code of Criminal
     Procedure, 1973 and from the judgment of conviction and order of
     sentence dated 6th February, 2016 passed by the learned Sessions Judge-
     Cum-Special Judge, Mayurbhanj, Baripada, in T.C. No.44 of 2013.

                                    ----

          Pradeep Dehuri                           ....         Appellant

                                     -versus-

          State of Orissa                          ....         Respondent
                 Appeared in this case by Hybrid Arrangement
                          (Virtual/Physical Mode):
                  For Appellant      -         Mr.Sarat Chandra Mekap
                                               (Advocate)

                  For Respondent     -         Miss.Samapika Mishra
                                               Addl. Standing Counsel
     CORAM:
     MR. JUSTICE D.DASH
     DR. JUSTICE S.K. PANIGRAHI
     Date of Hearing : 17.01.2023          :     Date of Judgment:10.02.2023

D.Dash,J. The Appellant, in this Appeal, assails the judgment of conviction and order of sentence dated 6th February, 2016 passed by the learned Sessions Judge-Cum-Special Judge, Mayurbhanj, Baripada, in T.C. No.44 of 2013 arising out of G.R. Case No.68 of 2013 corresponding to Sarat P.S. Case No.3 of 2013 in the Court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Udala.

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The Appellant (accused) thereunder has been convicted for committing the offence under section 302/376(2)(f)/201 of the Indian Penal Code, 1860 (for short, 'the IPC') read with section 4 of Protection of Children from Sexual Offences Act, 2012 (in short. 'the POCSO Act'). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 302 IPC; undergo rigorous imprisonment for ten (10) years and pay fine of Rs.8,000/- (Rupees Eight Thousand) in default to undergo rigorous imprisonment for two (2) years for commission of the offence under section 376(2)(f) IPC; to undergo rigorous imprisonment for five (5) years and fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 201 IPC; and sentenced to undergo rigorous imprisonment for seven (7) years and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for one (1) year for commission of the offence under section 4 of POCSO Act with further stipulation that the substantive sentences would run concurrently.

2. Prosecution Case:-

On 18.02.2013, around 08.10 a.m., the mother of Informant (P.W.2) went to Sarat Police Station and presented a written report stating therein that her minor daughter aged about ten years (hereinafter called as 'the deceased') had been to jungle during day time on 14.02.2023 and thereafter, she did not return home. She further stated

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therein to have already submitted a missing report to that effect at the P.S. in the evening hour of 15.02.2013.

As she was suspecting the accused, who happens to be her son-in- law (husband of her another daughter), having the hand in such missing of her daughter, the villagers and the brother of the Informant (Nirakar Dehury-P.W.4) has asked the accused to tell the whereabouts of the deceased. The accused then confessed before them that he had murdered the deceased inside the jungle and concealed her dead body. He then led the villagers to the place of concealment of the dead body of the deceased.

Basing on the aforesaid report submitted by the mother of the deceased, the Officer-in-Charge (OIC) of Sarat Police Station registered Sarat P.S. Case No.3 of 2013 and took up the investigation.

During investigation, the Investigating Officer (I.O.-P.W.14) examined the Informant (P.W.2) and recorded her statement under section 161 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.') and visited the spot, prepared the spot map (Ext.10), seized the sample earth and blood stained earth from the spot and prepared the seizure list. He also recorded the statements of other witnesses. He held inquest over the dead body of the deceased and prepared the report (Ext.2). The dead body of the deceased was then sent for post mortem examination by issuing requisition. On the same day, the I.O. (P.W.14) also recorded the statement of the accused under section 27 of the Evidence Act pursuant to which the accused led the police to the place of concealment, an axe being stained with blood which was seized. The I.O. had also seized the wearing apparels of the deceased and other

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incriminating articles. The accused, being arrested, were forwarded in custody to Court.

On completion of the investigation, the Final Form was submitted placing the accused persons to face the trial for commission of offence under section 302/376(2)(f)/201 IPC and section 4 of POCSO Act.

3. The plea of the defence is that of complete denial. The accused, however, took a specific plea that as he had married to the elder sister of the deceased against the will of the parent-in-laws, he has been falsely implicated in this case.

4. The prosecution, in course of trial, has examined in total seventeen (17) witnesses. Out of them, as already stated, P.W.2 is the Informant, who happens to be the mother of the deceased. P.Ws.3, 9, 16 & 17 are the co-villagers before whom the accused is said to have confessed his guilt to have committed rape and murder of the deceased. P.W.4 is also a co-villager before whom the accused confessed his guilt and led him & others to the place of concealment in giving recovery of the dead body of the deceased. P.W.5 stated to have went inside the jungle and heard the sound of someone calling as "Nani, Nani". P.W.6 is the elder sister of the deceased and the wife of the accused. P.W.10 is a witness to the inquest. P.W.12 is the I.O. P.W.13 is the Doctor, who has conducted the autopsy over the dead body of the deceased and P.W.14 is another Doctor, who had examined the accused.

The defence, in support of its case, has examined none. Besides leading the evidence by examining the above witnesses, the prosecution has also proved the documents, which have been admitted in evidence and marked Exts.1 to 13. Out of those, the

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importants are the FIR (Ext.9), the inquest report (Ext.2), the post mortem report (Ext.7) and the statement of the accused (Ext.4). The seizure lists have been proved and marked Ext.1, Ext.3, Ext.3/1, Ext.11 and Ext.12. The spot map prepared by P.W.12 has been admitted in evidence and marked Ext.10.

5. The Trial Court upon examination of evidence of P.W.13, the Doctor, who had conducting autopsy over the dead body of the deceased-girl, aged about 10 years and his report, Ext.7 as well as the evidence of the mother of the deceased-P.W.2 and other co-villagers, P.Ws. 1, 4, 6, 16 and 17 with the inquest report (Ext.2), has arrived at a conclusion that the death of the deceased had homicidal in nature. In fact this aspect of the case was not under challenge before the trial Court and that has also been the situation before us.

6. During autopsy over the dead body of the deceased, who was ten years girl child, the Doctor (P.W.13) has noticed that she had sustained deep laceration of size of 7"X3"X2" over left side face temporal region with fracture of left temporal bone and corresponding internal injuries have been noted to be fracture of left temporal bone with blood clot of the size of 2"X2" of the left temporal lobe. The Doctor, P.W. 13 has also noticed that the genitalia of the deceased was having the bleeding and there was rapture of hymen, widening of the vaginal canal with congested wall and stool to have passed from anus. As per the evidence, all these injuries are ante-mortem in nature which he had noted in his report and it is his evidence and that the age of said injuries was 2-3 days by the time of his examination which is almost fitting into time of the missing of the deceased. One axe seized in course of investigation

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being examined by P.W.13, he has stated the same to be sufficient to cause of fatal injuries on the head of the deceased, which he has noted in his report, Ext.8 given separately. With such evidence on record, we find absolutely no difficulty in agreeing with the finding of the trial Court that the death of the deceased was homicidal in nature.

The Doctor, P.W.13 had further stated that the bleeding from the genitalia with rapture of hymen and widening on below vaginal canal being taken with congested wall when the stool had passed from the anus, are suggestive of the fact that the deceased had been raped prior to her death and his evidence is that it was a case of penetrative sexual assault. Such evidence of P.W.13, which is in consonance with his report, Ext.7 has not been shaken in any manner. The deceased to have suffered from penetrative sexual assault has well proved.

7. Learned Counsel for the Appellant (accused) submitted that the prosecution case being based on circumstantial evidence, circumstances as projected are such and even if are said to have been proved, those being cumulatively viewed, do not form a chain so complete that there is no escape from the conclusion that with all human probability the crime was so committed by the accused and none else. He further submitted that the extra-judicial confession said to have been made by the accused before the co-villagers including the informant, who is his mother-in- law and that he then had led the villagers in giving recovery of the dead body of the deceased have not at all been proved beyond reasonable doubt through the evidence of such witnesses who under the circumstances emerging from their evidence are not at all reliable. He further submitted that the statement made by the accused before police

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being not admissible is of no aid to the prosecution case in pointing out the guilt at the accused. He also submitted that the recovery of the axe at the instance of the accused while in police custody pursuant to the statement has not been proved beyond reasonable doubt by leading evidence through reliable witnesses.

8. Learned Counsel for the State on the other hand supported the findings of the Trial Court. According to him, the circumstances which have been proved by the prosecution certainly complete the chain of even leaving no escape from the conclusion that within all human probability the crime was committed by the accused and none else. He further submitted that all these circumstances being taken together, the Trial Court has rightly convicted the accused since the chain of events is complete and in capable of explanation of any other hypothesis other than guilt of the accused. He also submitted that the evidence on records are not only consistent with the guilt of the accused but wholly inconsistent that the innocence of the accused.

9. Keeping in view the submissions made; we have carefully gone through the impugned judgment of conviction passed by the trial Court. We have also extensively travelled through the depositions of the prosecution witnesses, P.Ws. 1 to 17 and have perused the documents admitted in evidence and marked Exts. 1 to 13.

10. On going through the prosecution evidence and on going through facts narrated in the F.I.R., Ext.9 which has set the criminal law into motion, by registration of the case and commencement of investigation and also the evidence let in by the prosecution both oral and

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documentary, we have been able to call out the following circumstances:-

(a) extra judicial confession of the accused before the co- villagers including the Informant, who is his mother-in-law.

(b) the accused leading the villagers in giving recovery of the dead body of the deceased pursuant to the confession made before the villagers including the Informant;

(c) the statement given by the accused while in police custody in leading the police and witnesses to give recovery of an axe from the place which was within his knowledge and where the axe had been kept concealed;

(d) the axe recovered pursuant to the statement of the accused and seized can cause the injuries on the head of the deceased.

(e) motive of the accused in eliminating the deceased after the first part of the incident.

11. In so far as the first circumstance is concerned, we must place here the settled position of law that extra judicial confession if is found to have been voluntarily made by the accused as an act of repentance of the crime committed by him without any coercion or pressure and if it is shown that the accused had some reason to repose confidence on the person, that he would not divulge before others; then such extra judicial confession itself can form the basis of conviction for the offence confessed to have committed by the accused without even any corroboration from any other source. If for some reason, the Court finds the evidence with regard to extra judicial confession to be fragile in character then it would certainly seek corroboration.

12. P.Ws.2, 3, 4, 6, 9, 11 and 16 are the witnesses in support of the said extra judicial confession. The mother of the deceased is P.W.2 and

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she is the Informant. It is her evidence that accused confessed before her and others namely Dusasan Dehury, P.W.8, Narayan Dehury, P.W.3, Budhia Dehury and others that he had killed the deceased minor daughter of P.W.2 and concealed her dead body in the jungle covered by the branches of the trees. She has further stated that so saying, the accused went to the jungle and gave recovery of the dead body of her daughter and he also brought the dead body from the jungle to his house where P.W.2 saw the dead body of her daughter P.W.3 and 4, the co- villagers have also stated that when they asked the accused, he told to have killed the deceased and kept the dead body concealed inside the jungle by covering branches and when they asked to show the dead body, the accused led them with others to the jungle and showed them the dead body kept under the branches of the trees. They have also stated that as the place was lonely, he then carried the dead body to his house. The other co-villagers i.e. P.Ws. 9, 16 and 17 have also so stated in chorus that after the deceased was not found in the house and nearby area, when they were searching for the deceased, they asked accused regarding the whereabouts of the deceased who then told them not to search for her as he had already killed her and concealed the dead body inside the jungle by covering branches. They are also stating that the accused led them in the jungle; showed them the dead body and brought the dead body from the jungle to his house. All the above witnesses have withstood the rigorous cross-examination. We find that nothing has been elicited from them either to discard their testimony with regard to the extra judicial confession as aforesaid or to raise any doubt in mind that their entire version on that score. The mother of the deceased, although had not stated anything during her examination-in-chief; it has rather

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been brought out in the cross-examination that after her daughter was found missing, she had informed Dibakar, Chakra and Purusottam regarding that fact. No such contradiction has also surfaced in her evidence. In fact what we find here that the defence has not challenged even on that aspect in particular, as to the confession made by the accused. Similar is the state of affairs in respect of all other witnesses. The cross-examination appears to have been made in general manner and nowhere there is even any attempt to bring out any such material to raise doubt in the version of the witnesses with regard to the said confession of the accused which they have asserted in their examination- in-chief nor even any surrounding circumstances have been shown to be standing to disbelieve such version of these witnesses that the accused had confessed to have committed; the crime.

13. Furthermore, P.W.2 is the mother-in-law of the accused and the deceased is the minor sister-in-law of the accused when P.W.6 is none other than the wife of this accused. Even she has gone to state about the said confession made by her husband-accused. In view of the the bitter relationship between the accused and his wife as also the mother-in-law, when they have stated that accused was assaulting P.W.6 for them to raise a suspicion at the initial stage that the accused might have kidnapped the deceased is very natural to strike to the mind and then they having divulged it before the villagers, their conduct are seen to be normal and responsive. The accused being asked by them is also very natural in this case where a ten years girl child has been murdered and that actually happens in normal day today life in the village as the common experience goes to show of which judicial notice can be taken.

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In the absence of any such material available on record that the accused was threatened or coerced being given with threat to life and when no such evidence is available on record that all these witnesses had any axe to grind against the accused, We are of the view that no such apparent reason was with those witnesses to falsely implicate this accused. The accused having committed such crime of murder of girl child of 10 years who is none other than his sister-in-law (wife's sister) it is not uncommon that repentance would come in his mind so as to boldly face the consequence for the sin committed.

We are therefore, of the view that in this case, even without considering the other circumstances whether proved beyond reasonable doubt or not, the confession of the accused before P.W.2 and other co- villagers P.Ws.2, 3, 4, 6, 9, 11 and 16 having been proved beyond reasonable doubt, that is enough to hold the accused guilty for commission of offences under section-302 of the IPC for having intentionally caused the death of the deceased.

14. Even then here we find another strong corroborative circumstance that all these above noted witnesses have stated the accused to have led them including the mother of the deceased who happens to be his mother-in-law to the jungle and showed the dead body of the deceased which himself brought to his house. All these facts find mention in the F.I.R., Ext.9 too.

15. Having noted the state of affairs in the evidence of the prosecution witnesses as discussed, even without going to ascertain as to other circumstances projected by the prosecution through evidence in pointing the finger of guilt at the accused, we are wholly satisfied that

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the prosecution has proved the charge under section 302/201 of the IPC against the accused.

16. Coming to the charge under section-376(2)(f) of the IPC and section-4 of the POCSO Act, as already discussed, the evidence of the Doctor, P.W.13 is clear that the deceased was sexually assaulted by way of penetration and he too had marked the features on the genitalia of the deceased (10 years old girl child). The evidence of prosecution witness that the accused gave recovery of the dead body, for the discussion and reasons, is wholly acceptable. There is absolutely no explanation from the side of the accused as to how the deceased has sustained injuries on her person more particularly, on the genitalia etc. which under the circumstances was within the special knowledge of the accused since the prosecution has established the fact that the dead body was in the custody of the accused and had been inflicted with the injuries on different parts including her genitalia, the onus of proof as to how the injuries were received being not at all discharged by the accused; We find that the charges under section 376(2)(f) of the IPC and section-4 of the POCSO Act too have been established beyond reasonable doubt.

On a conspectus of discussion of evidence as hereinabove, We are of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302/376(2)(f)/ 201 of the IPC and section-4 of the POCSO Act is well in order and the accused has rightly been convicted thereunder.

17. In the result, the Appeal stands dismissed. The judgment of conviction and order of sentence dated 6th February, 2016 passed by the

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learned Sessions Judge-Cum-Special Judge, Mayurbhanj, Baripada, in T.C. No.44 of 2013 are hereby confirmed.

(D. Dash) Judge.

Dr. S.K. Panigrahi I agree.

(Dr. S.K. Panigrahi) Judge.

Basu

.

CRLA No.165 of 2016