JUDGMENT
Chandramauli Kumar Pd. and Rekha Kumari, JJ.
Page 0073
1. Judgment and order dated 26.2.2005 passed by the 3rd Additional Sessions Judge, Katihar in Sessions Trial No. 224 of 2000 inflicting the sentence of death to accused Anoj Kumar Mandal alias Manoj Kumar Mandal upon his conviction under Section 302 of the Indian Penal Code has necessitated this Reference under Section 366 of the Code of Criminal Procedure. By the said judgment and order Anoj Kumar Mandal alias Manoj Kumar Mandal has been found guilty under Sections 302 and 376 of the Indian Penal Code but no separate sentence was inflicted under Section 376 of the Indian Penal Code. The said convict has also preferred appeal against the judgment and order of conviction which has been registered as Criminal Appeal No. 206 of 2005. Both the appeal and the Reference were heard together and are being disposed of by this common judgment. The convict Anoj Kumar Mandal alias Manoj Kumar Mandal shall hereinafter be referred as appellant.
2. Information given by P.W. 10 Rudal Rishi to the Officer-in-charge of Dandkhora police station on 31.12.1999 at 13 hours had set the criminal case in motion. According to the informant, on 31.12.1999 at 8.0 a.m. he gave Rs. 13.50 to his daughter Rekha Kumari, aged 14 years to purchase rice, biri, match box etc. from a shop at village Khirkhiria. At about 8.15 a.m. he heard the alarm raised by the villagers and found that a boy is being chased by the residents of village Khirkhiria. According to the informant he also joined the chase and the appellant Anoj Kumar Mandal was apprehended. The villagers chasing the boy disclosed that he had fled away committing rape on his daughter. He disclosed the names of the villagers who chased and apprehended him as Ranjeet Lal Oraon (P.W.1), Rajdeo Oraon (P.W.2), Sundar Oraon (not examined), Shaligram Oraon (P.W.6), Niranjan Oraon (P.W.7), Khudni Devi (P.W.4), Ramni Kumari (P.W.8) and Ram Chandra Oraon (not examined). According to the F.I.R. all the aforesaid persons saw the appellant fleeing away from Bansbitti (bamboo clumps) folding his Lungi and was caught at a little distance from the place of occurrence. According to the F.I.R. the appellant confessed that when his daughter Rekha Kumari was returning after purchasing the articles, he caught hold of her near a Bansbitti and committed rape on her. When she raised alarm, the appellant killed her by tying clothe around her neck. When the informant came to the Bansbitti found his daughter Rekha Kumari naked and dead. The informant alleged that the appellant had killed his daughter after committing rape on her.
3. On the basis of the aforesaid information Dandkhora P.S. Case No. 70/99 was registered under Sections 302 and 376 of the Indian Penal Code.
4. After usual investigation police submitted chargesheet against the appellant and he was ultimately committed to the court of Sessions to face the trial, where he was charged for causing death of Rekha Kumari punishable under Section 302 of the Indian Penal Code as also raping her, punishable under Section 376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case had altogether examined 11 witnesses. None of them claimed to be the eye witnesses to the occurrence but had been examined to prove the circumstances pointing towards the guilt of the appellant, excepting P.W.5 Bijay Kumar, who is a formal witness and P.W. 11 Dr. L.N. Mandal Page 0074 who had conducted post mortem examination of the dead body of Rekha Kumari. From the trend of the cross examination, the defence of the appellant seems to be that he has been falsely implicated in the case and apprehended from his wheat field only on suspicion. In support of his case, he had examined the investigating officer of the case as D.W. 1. The trial court on appraisal of the evidence, oral and documentary, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced the appellant as above.
6. P.W. 1 Ranjeet Lal Oraon is the owner of the shop where the deceased had gone to purchase articles on the instruction of her father P.W. 10 Rudal Rishi. According to him at about 8-8.15 a.m. while he was at his shop Rekha Kumari came and purchased half kg. of rice, one O.K. soap, Biri worth 8 annas and Khaini worth Re.1/-, kept all these articles in a piece of Dhoti worn by her, covered her body with the remaining portion thereof and proceeded towards her house. After five minutes, according to this witness, P.W. 2 Rajdeo Oraon came and stated that the appellant was dragging Rekha Kumari towards Bansbitti. He along with other villagers went there running and found the appellant fleeing away from there, folding his Lungi. He was chased and ultimately apprehended and brought to the place where Rekha Kumari was lying dead in naked condition. He also found bruises and blood coming out from her breast. He also saw bleeding injury on her private parts. He also found Dhoti wrapped around her neck. He had further stated that the deceased was wearing red pant which was torn and pulled down to the thigh. According to him the appellant confessed that he had killed the deceased after committing rape on her. In the cross examination he had stated that after the police arrived, the appellant was assaulted by the police personnel and the appellant confessed his guilt before the police also.
7. P.W. 2 Rajdeo Oraon was aged about 17 years on 13.6.2001, when his evidence was recorded. According to him on the date of occurrence at about 8.0 a.m. he was going towards the village from his house and when reached near Bansbitti, saw appellant dragging the deceased towards Bansbitti. He ran towards the chowk and narrated the incident to P.W.6 Shaligram Oraon and P.W. 1 Ranjit Lal Oraon. They went running towards Bansbitti, where he saw the appellant fleeing away from there folding his Lungi. The appellant was apprehended after chase and brought to the Bansbitti, where the dead body of Rekha Kumari was lying with her clothe removed and bruise mark on her breast. He saw Pant of the deceased pulled down to the thigh, blood on the private part and Dhoti wrapped on her neck. In the cross examination he had stated that when he saw appellant dragging the deceased, he thought that it was a ghost and got frightened. He had further admitted that he did not raise hulla at that very place. He has specifically stated that while the deceased was being dragged, she was crying and raising alarm.
8. P.W. 3 Sundar Oraon had stated in his evidence that P.W. 2 Rajdeo Oraon came running from his house and disclosed that the appellant was dragging the daughter of Rudal Rishi towards Bansbitti. He went there and caught hold of the appellant from the side of the river. The appellant was brought to the Bansbitti where he had committed rape and killed the deceased. He saw in the Bansbitti the dead body having mark of violence with Dhoti wrapped on her neck. He saw blood on the breast of the deceased as also on private parts. In the cross examination he had stated that 10-12 persons had surrounded the appellant and detained him. In the cross Page 0075 examination he had further said that he became suspicious and caught hold the appellant as he was fleeing.
9. P.W. 4 Khudni Devi had stated in her evidence that at about 8-9 a.m., on the date of occurrence, while she and her niece Ramni Kumari (P.W.8) were returning, saw the appellant fleeing away. He was caught hold by the villagers and brought to the Bansbitti. She went to Bansbitti and saw the deceased naked and genital organ bleeding. Further Dhoti, was wrapped on her neck. She also found rice, soap and tobacco tied in a piece of Dhoti. In the cross examination she has stated that about 100 persons were present at the place where the appellant was caught. She has also admitted that the appellant was caught in the wheat field.
10. P.W. 5 Bijay Kumar is a formal witness, who had stated that the Fardbeyan was recorded by the Officer-in-charge Amar Kant Jha, over which the informant had put his L.T.I. He had identified the signature and writing of the. Officer-in-charge and proved the same.
11. P.W. 6 Shaligram Oraon had also stated that while he was near the shop of P.W. 1 Ranjit Oraon, P.W. 2 Rajdeo Oraon came raising alarm and he along with other witnesses chased and apprehended the appellant and brought him in the Bansbitti where the dead body of Rekha Kumari was lying. He saw tobacco, Biri and rice tied in the cloth lying near the dead body. He also saw bruises on the breast of the deceased caused by nail. In the cross examination he had admitted that the appellant was caught in the wheat field belonging to his father Shyama Nand Mandal. He had also stated about the arrival of the Sub Inspector of Police at 8.0 a.m. in the village where the accused was detained.
12. Similar to P.W. 6, P.W. 7 Niranjan Oraon had stated that while he was at the shop of P.W. 1 Ranjit Lal Oraon, P.W. 2 Rajdeo Oraon came raising hulla that rape was being committed. At this he along with other witnesses went near Bansbitti, saw the appellant fleeing away folding his Lungi. He was chased and apprehended and brought to Bansbitti near the dead body. He saw Sari tied around the neck of the deceased and bruises on her breast. He also saw rice, tobacco, Biri and soap tied in the Sari.
13. P.W. 8 Ramni Kumari had stated in her evidence that while she and her aunt P.W. 4 Khudni Devi were returning, saw appellant fleeing away from west to east and on hulla the villagers apprehended him. According to her she was fleeing away after killing the deceased.
14. P.W. 9 Sudama Devi is the mother of the deceased and has stated in her evidence that at about 8.15 a.m. on the date of occurrence her husband gave Rs. 13.50 to her daughter Rekha Kumari (deceased) and asked her to purchase certain articles from the shop. Her daughter went to purchase the articles from the shop belonging to P.W. 1 Ranjit Lal Oraon but did not return. On hearing hulla that her daughter has been killed she went to Bansbitti and found her dead body there with injuries on her person. She found the appellant and other witnesses present near the dead body. She had specifically stated that she had not seen the appellant being caught.
15. P.W. 10 Rudal Rishi is the father of the deceased and informant of the case. He had stated in his evidence that at about 8.15 a.m. on the date of occurrence he gave Rs. 13.50 to her daughter to purchase rice, Biri, tobacco and one O.K. Soap from the shop of P.W. 1 Ranjit Lal Oraon. She did not return and on hulla he ran towards that direction where he was told that the appellant had killed his daughter. He saw the Page 0076 appellant concealing the dead body of his daughter by bamboo leaves in the Bansbitti. According to him he tried to apprehend him but did not succeed at that time. Ultimately the appellant was apprehended and brought by him and other witnesses near the dead body. He saw her daughter naked with clothe around her neck. He had disclosed the names of P.W. 2 Rajdeo Oraon, P.W. 6 Shaligram Oraon and other witnesses who had helped him in apprehending the accused. In the cross examination he had stated that the dead body was being concealed in a ditch in the Bansbitti and reiterated that he made such a statement before the police during the course of investigation.
16. P.W. 11 Dr. L.N. Mandal at the relevant time was posted as Orthopaedic Surgeon in Sadar Hospital, Katihar and conducted post mortem examination of the dead body of deceased Rekha Kumari on 1.1.2000 at 11.30 a.m. He found following ante mortem injuries on the person of the deceased :
i) Multiple nail marks on either side of trachea with bruises on upper portion of neck.
ii) Bruise 3″ x 2″ over left breast around nipple.
iii) Bruise 2″ x 1″ over right breast around nipple.
On dissection of neck the doctor found muscle of either side of the trachea in upper portion with blood. The doctor took swab from the vagina and sent for microscopic examination but no spermatazoa was found on the vaginal swab. The doctor also did not find any injury on her private part.
17. In the opinion of the doctor death was caused by asphyxia due to strangulation by thumb and finger. He further opined that bruises on breast suggest molestation but in absence of spermatazoa, no definite opinion in regard to rape can be given. He has further opined that the injuries found on the person of the deceased were sufficient to cause death, which had occurred within 36 hours from the time of examination. He had proved the post mortem report (Ext. 2).
18. It is relevant here to state that the I.O. of the case Amarkant Jha has not been examined as a prosecution witness but the appellant had chosen to examine him as a defence witness as D.W.1. D.W. 1 Amar Kant Jha had stated in his evidence that nothing was found on search of the person of the appellant and further neither blood nor semen was found on the Lungi. He denied the suggestion that the informant did not state before him that the appellant was covering the dead body of his daughter by leaves in Bansbitti.
19. To put the record straight, it is relevant here to state that the deposition of Rajdeo Oraon (P.W.2), Khudni Devi (P.W.4), Ramni Kumari (P.W.8), Ranjeet Lal Oraon (P.W.1), Sundar Oraon (P.W.3) and Niranjan Oraon (P.W. 7) were recorded earlier under Section 164 of the Code of Criminal Procedure.
20. Mr. Bhola Prasad, appearing on behalf of the appellant submits that he was apprehended merely on suspicion from his own field and the circumstantial evidence brought on record do not conclusively point out to his guilt. In this connection he has drawn our attention to the evidence of P.W. 6 Shaligram Oraon where he has admitted that the appellant was apprehended from the wheat field belonging to his father.
21. Mr. Lala Kailash Behari Prasad, Additional Public Prosecutor appearing on behalf of the State submits that the circumstantial evidence brought on record clearly points towards his guilt. Besides, the extra judicial confession of the appellant also conclusively prove that he had committed the crime.
Page 0077
22. In the case in hand, there is no direct evidence to prove the guilt of the appellant. The circumstantial evidence according to the prosecution conclusively points out to the guilt of the appellant. It is well settled that conviction can be based on the circumstantial evidence only if it points out to the guilt of the accused and his innocence is absolutely ruled out.
23. Bearing it in mind we proceed to consider the case of the prosecution. From the evidence of the witnesses which we have narrated hereinbefore, it is evident that P.W.2 Rajdeo Oraon saw the appellant dragging the deceased towards Bansbitti There is further consistent evidence that the said witness raised alarm, which drew the attention of other witnesses and when they came, saw the appellant fleeing from the Bansbitti folding his Lungi. There is further consistent evidence that he was apprehended and brought to the Bansbitti, where the dead body of Rekha Kumari was lying naked with bruises on her breast and blood on her private parts. The aforesaid chain clearly points out toward his guilt. Not only this, the appellant had made extra judicial confession before P.W. 1 Ranjeet Lal Oraon. In the case of Gagan Kanojia and Anr. v. State of Punjab 2007 (1) PLJR 200 (S.C.), the Supreme Court, on consideration of its earlier authorities, held that extra judicial confession can form the basis of conviction and it is only by way of abundant caution that the Court looks for some corroboration. Here in the present case not only there is extra judicial confession but chain of circumstances which point towards the guilt of the appellant. Accordingly we are of the opinion that the chain of circumstances conclusively point towards the guilt of the appellant and his plea of arrest on suspicion alone is fit to be rejected.
24. Mr. Prasad then submits that according to the prosecution witnesses the dead body of Rekha Kumari in the Bansbitti was in a naked condition but the inquest report shows that she was wearing clothe. This, according to Mr. Prasad, creates doubt to the case of the prosecution. We do not have the slightest hesitation in rejecting this submission of the learned Counsel. In fact, the aforesaid submission has been advanced on total misreading of the evidence of the prosecution witnesses. In our opinion, when the witnesses had stated that the deceased was naked, what they meant was that her private part was exposed. In fact, the witnesses have stated in their evidence that the deceased was wearing a pant which was rolled down to the level of thigh.
25. Mr. Prasad further submits that the evidence of P.W.2 Rajdeo Oraon that he saw the appellant dragging the deceased in the Bansbitti is fit to be disbelieved. In this connection he has drawn our attention to the evidence of P.W. 2 in paragraph 4 of his cross examination wherein he has admitted that when he saw appellant dragging the deceased, he thought it was a ghost. P.W. 2 at the time of occurrence was aged about 15 years and from the part of the country he belongs, his feeling at the first-instance that the deceased was being dragged by a ghost has to be understood not literally but in the background to which he belongs. It has come in evidence that the occurrence has taken place in the morning and the area was full of fog. The other witnesses examined in the case had clearly stated that P.W. 2 Rajdeo Oraon came running and informed that the deceased was raped by the appellant and when the other witnesses went there, saw the appellant fleeing away from there. Thus, the evidence of P.W. 2 Rajdeo Oraon is not fit to be rejected on the aforesaid ground.
Page 0078
26. Mr. Prasad, then submits that there is a contradiction in regard to the place where the appellant was apprehended. He points out that according to the witnesses the appellant was apprehended by the side of the river but according to P.W. 4 he was apprehended from the wheat field. We do not find any substance in this submission of the learned Counsel. True it is that P.W. 4 Khudni Devi had stated that the appellant was apprehended from the wheat field but she has clarified that the said field is situated by the side of the river. In that view of the matter, the other witnesses saying that the appellant was apprehended by the side of the river, is in conformity with the evidence of P.W. 4 also.
27. Mr. Prasad, submits that P.W.10 Rudal Rishi has stated in his evidence that he saw the appellant covering the dead body by bamboo leaves in the Bansbitti but this fact is not stated in the F.I.R. and his evidence to that extent is fit to be disbelieved. We do not find any substance in the submission of the learned Counsel. It is well settled that the F.I.R. is not an encyclopedia in which everything is to be narrated. This witness has stated this fact during the course of investigation and the I.O. who has been examined as a defence witness has also not denied this fact.
28. Mr. Prasad then submits that according to the F.I.R. the deceased was done to death by tying cloth around her neck but according to the doctor who had conducted the post mortem examination, she was strangulated to death. Thus, according to Mr. Prasad, the case of the prosecution is not corroborated by the medical evidence. We do not find any difficulty in rejecting this submission of Mr. Prasad. The doctor, who had conducted the post mortem examination had found that the deceased was strangulated to death and the F.I.R. cannot be read to mean that the informant had stated that the deceased was strangulated to death by clothe. The F.I.R. only states that clothe was wrapped around her neck and from this it cannot be said that what the informant suggested was that she was done to death by strangulation by clothe.
29. Mr. Prasad submits that failure on the part of the prosecution to produce Dhoti found on the person of the deceased creates doubt to the case of the prosecution. We do not find any substance in the submission of the learned Counsel. More non production of Dhoti found on the person of the deceased, in no way, affects the credibility of the evidence of the witnesses. We have referred to the chain of circumstances appearing in the case which points towards the guilt of the appellant.
30. Mr. Prasad, lastly submits that the case in hand does not come within the category of rarest of the rare cases and as such the death sentence is not called for. Mr. Prasad, however, submits that the case in hand justify the direction given by the Supreme Court in the case of Prakash Dhawal Khairnar v. State of Maharashtra , in which while commuting the death sentence, the following direction was handed over :
The Court also observed that though under the relevant Rules a sentence for imprisonment for life is equated with a definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose. The Court, thereafter, directed that the accused shall not be released from prison unless he had served out at least Page 0079 20 years of imprisonment including the period already undergone by the appellant. In this case also, considering the facts and circumstances, we set aside the death sentence and direct that for murders committed by him, he shall suffer imprisonment for life but he shall not be released unless he had served out at least 20 years of imprisonment including the period already undergone by him.
31. We had the occasion to consider this question in the case of State of Bihar v. Sanjeet Rai 2006 (4) PLJR 479 and on review of various judgments we came to the following conclusions :
True it is that the crime has been committed in a heinous and brutal manner but there is nothing on record to show that the two condemned shall be menace to the society threatening its peaceful existence and continuous threat to the society, if come out of incarceration. There is no reason to believe that they cannot be reformed and they are likely to continue criminal activities. Having given my most anxious consideration and viewed from this angle, the case in hand does not come within the category of rarest of the rare cases, calling for extreme penalty of death.
32. From the decision of the Supreme Court as also this Court, a third category of cases have come into existence in which the death sentence may not be called for but at the same time direction to lodge the convict for a period of 20 years is required to be given. Bearing in mind the aforesaid, when we proceed to consider the case of the appellant we do not find it to be rarest of the rare cases, to call for extreme penalty of death. There is nothing on record to show that the appellant shall be a menace to the society, threatening its peaceful existence, if he comes out of the jail. There is nothing on record further to show that he shall be a continuous threat to the society and cannot be reformed and continue with the criminal activities. Having given our most anxious consideration and viewed from this angle, we are of the opinion that the facts of the case do not justify extreme penalty of death.
33. In the case of Prakash Dhawal Khairnar (Supra) the Supreme Court while commuting the death sentence directed that the accused found guilty “shall not be released unless he had served out at least 20 years of sentence”. In our opinion the facts and circumstances of the case justify such direction. Accordingly, we set aside the sentence of death and commute it to life imprisonment with a direction that the appellant shall not be released unless he serves out 20 years of imprisonment.
34. In the result, the appeal is partly allowed. The conviction of the appellant is maintained but the sentence awarded is commuted as aforesaid. We also decline to confirm the death sentence and the Reference made is rejected.