(1.) The death reference under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for brevity) was taken up for hearing on different dates. The death reference was submitted by the learned Additional Sessions Judge- cum-Special Judge (P), Angul in Special (POCSO) Case No.08 of 2019 arising out of Angul P.S. Case No.52 dated 20.01.2019 under Sections 302, 376(3) and 201 of the Indian Penal Code, 1860 (hereinafter referred to as "the Penal Code" for brevity) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the Act" for brevity). The reference made by the learned Additional Sessions Judge-cum-Special Judge (P), Angul has been registered as DSREF No.1 of 2019 and the criminal appeal preferred by the appellant by engaging private counsel has been registered as CRLA No.595 of 2019. A separate jail criminal appeal has been preferred bearing JCRLA No.54 of 2019.
By virtue of this judgment, we proposed to dispose of all the aforesaid three cases.
(2.) Learned Additional Sessions Judge-cum-Special Judge (P), Angul as per the judgment dated 26.07.2019 passed in Special (POCSO) Case No.08 of 2019 convicted the appellant, namely, Shrinibash @ Anama Dehury under Sections 302, 376(3) and 201 of the Penal Code read with Section 6 of the Act. He proceeded to sentence the convict/ appellant with capital punishment for the offence under Section 302 of the Penal Code; and to undergo rigorous imprisonment for life i.e. the remaining period of the natural life and to pay a fine of Rs.10,000/- (rupees ten thousand), and in default to suffer further rigorous imprisonment for one year for the offence under Section 376 (3) of the Penal Code; and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- (rupees five thousand), and in default to undergo further rigorous imprisonment for six months for the offence under Section 201 of the I.P.C.; and also to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (rupees ten thousand), and in default to suffer further rigorous imprisonment for one year for the offence under Section 6 of the Act. Learned Additional Sessions Judge-cum-Special Judge (P), Angul, further directed the sentences of substantive imprisonment to run concurrently and submitted the records to this Court under Section 366 of the Code.
(3.) Bereft of unnecessary details, the prosecution case is as follows:
That on 20.01.2019 on Sunday at about 3.00 P.M the younger daughter of Saroj Moharana namely Geeta (assumed name), aged about 13 years, of village Kangula, had gone to her father's grocery shop situated at Majhi Sahi by taking food for her father. After sometimes one Jaladhara Moharana of village Kangula came to their village chhak and stated that he has seen Tiffin, Chappal, Stone, bag and some blood patches lying on the way. Hearing the above, some of the villagers went through that road to enquire about the fact. At that time, the wife of Saroj Moharana was returning by that road to her house. She also heard about the matter and then reached her house and asked her mother-in-law about her younger daughter (victim-deceased). Then the mother of Saroj Moharana told that she has taken Tiffin for her father. Hearing this, suspicion arose in the mind of the wife of Saroj Moharana, for which she along with some villagers went to the spot where Jaladhar Moharana had seen the blood stains, tiffin, chappal, bag and stone. After arriving at the spot, they could not find the above mentioned articles except blood stains. When the news spread in the village, some other villagers ran to the spot.
The informant Saroj Mohararana also reached at the spot. All of them started searching for the daughter of the informant. As per the version of Jaladhara Moharana, he had seen that someone has kept a motorcycle near the „Jora?. A winter jacket and a gamuchha was kept on the motorcycle. While Saroj Moharana and the villagers were searching near the spot, the condemned prisoner Anama @ Shrinibash Dehury, of their village, was taking a bath in the „Jora? and Jaladhara Moharana raised hulla on seeing Shrinibash Dehury, but no one was around to hear the loud voice of Jaladhara Moharana. At that time Anama Dehury went away through that road at a high speed on his motorcycle. When the villagers searched, they got the dead body of the deceased and at first Deba Katar discovered the dead body of the deceased, the daughter of the complainant Saroj Moharana. Then one Jitendra Moharana reached there and thereafter Saroj Moharana saw the dead body of his daughter and covered her naked dead body with the gamuchha of Jitendra Moharana.
At that time the news spread everywhere and the villagers of Kangula arrived at the spot. When Jaladhara Moharana described about Anama Dehury before others, Mihir Moharana and Dillip Moharana immediately rushed to the house of Anama Dehury and found the winter Jacket and gamuchha of Anama hanging in a wet condition, on the thatched roof of his house, which was worn by him and they also noticed grass and mud on the jacket and gamuchha of Anama and then took photograph of the same. When they searched for Anama, they got information from the house of Anama that he has gone away by his motorcycle and some of the young men of village Kangula have seen Anama going by his motorcycle on the road with a bag.
Hearing the above, the informant and his family members harboured strong belief that Anama Dehury has committed murder of their daughter after committing rape on her. Hence, Saroja Moharana lodged a written report at the Police Station. Basing on the report of the informant, Angul P.S Case No. 52 dated 20.01.2019 was registered under Sections 376(3), 302 and 201 of the Penal Code read with Section 6 of the Act by the Inspector-In-Charge (hereinafter referred to as "the I.O." for brevity). He took up investigation of this case. 03.1. During course of investigation the I.O. examined the complainant and other witnesses, issued command certificate to the Havildar Bijaya Kumar Das and OAPF-99 Rebati Kissan to assist him during investigation and to guard the dead body of the deceased and then sent intimation to the Superintendent of Police, Angul with a request to direct the Reserve Inspector to make arrangement for illuminating the spot for conducting inquest over the dead body and he also sent message to D.S.P, Angul for deputation of detective dog squad and Scientific Team to remain present at the time of spot visit. The I.I.C- cum- I.O also sent requisition to the Sub-Collector, Angul for deputation of one Executive Magistrate to remain present at the spot during inquest.
He then, proceeded to the spot and made arrangements for illumination by two numbers of Aska Lights and sufficient numbers of torch lights being brought by the staff deputed by the Reserve Inspector. At that time, Sri Bichitrananda Naik, Tahasildar-cum- Executive Magistrate, Angul arrived at the spot and in his presence and witnesses, the I.O. conducted inquest over the dead body of the deceased and photographs of the deceased were taken at the spot from different angles and then the I.O. sent the dead body to D.H.H, Angul through relatives of the deceased and escort party for post-mortem.
The post-mortem examination could not be conducted that night as it was past mid night. So the I.O. directed the escort party to guard the dead body in the mortuary. The I.O. then sent requisition for C.D.R. of the mobile number of the accused bearing No.9938979661 for his location through Cyber Cell, Angul and learnt that the location of the mobile of the accused was found at different places from time to time and lastly the mobile was switched off. Thereafter, the I.O. verified the house of the accused and found his wearing apparels having some grass particles hanging outside of his house and then seized one red-white check gamuchha with grass and grass seeds along with one brown winter jacket having some grass particles in presence of the witnesses and the mother of the accused.
On 21.01.2019 the scientific team visited the spot in presence of the I.O. and he seized the physical clue materials collected from the spot by the Scientific Officer, D.F.S.L, Dhenkanal. The I.O. received the wearing apparels of the deceased and biological objects collected by the team of doctors during autopsy of the deceased, seized one white-violet check gamuchha, one white-sky colour bra(semij), one white-black-yellow colour printed shalwar of the deceased, one white-red colour plastic bangle, one black thread, one plastic container containing 16 numbers of small vials said to have contained gauge soaked in blood of wound area, three blood samples, two numbers of vaginal swabs, two numbers of anal swabs, two numbers of vulvae swab, one oral swab, one urethral swab, one scalp hair, two numbers of nail clippings, one pubic hair of the deceased and prepared seizure list.
On 22.01.2019 on getting reliable information regarding the location of the accused, the I.O. examined one Mantu @ Rudramani Dehury of Khandualamunda, cousin of Anama Dehury after technical surveillance regarding his location on the date of occurrence and came to know that on 20.01.2019 the accused had visited village Khandualamunda and kept his Bajaj Platina Motorcycle and R.C. Book of the bike wth one Chittaranjan Dehury and with his assistance fled away from the locality by boarding a Truck at Ballahara Chhaka, Talcher. The I.O. also examined the Auto driver Aditya Behera, who had dropped the accused in his Auto at Ballahara Chhaka and he examined Chittaranjan Dehury and seized the Bajaj Platina Motorcycle along with the R.C smart card of the vehicle of Anama, bearing Regn., No.OD-19-8017 from the house of Chittaranjan Dehury in presence of the witnesses. The I.O. then contacted Cyber Cell, Angul and learnt from technical surveillance that the location of the accused is at New Market area, Kolkata and hence, he prayed to the Deputy Inspector General of Police Angul through the Superintendent of Police, Angul to proceed to Kolkata. He went to Kolkata and apprehended the accused with the help of Kolkata police in New Market area, Kolkata and took the accused to his custody. He requested the local police to remain present during his examination, but nobody agreed to become witnesses. So the I.O. returned to Angul with the accused and reached at Angul P.S and on interrogation the accused confessed his guilt. So, he arrested the accused and took personal search of the accused and seized one black colour Samsung Duos mobile without SIM card from the possession of the accused in presence of the witnesses.
He called two independent witnesses of village Kangula namely, Chandan Moharana and Ajit @ Aditya Kumar Sahu, to remain present at the time of recording of confessional statement of the accused. The I.O also prayed to the Sub-Collector, Angul to depute an Executive Magistrate to remain present at the time of recording of confessional statement of the accused and leading to discovery of weapon of offence and other physical clue materials. Then the I.O recorded the confessional statement of the accused on 24.01.2019 in presence of the independent witnesses and Executive Magistrate.
Thereafter, the Scientific team arrived at the Police Station and the accused confessed his guilt and led the police party, Executive Magistrate, independent witnesses and Scientific team to the place of occurrence and the I.O seized a blood stained stone of weight 1Kg and 60 grams used as weapon of offence, sample earth, blood stained earth from the spot and one red-black and white colour half baniyan with blood stains from the possession of the accused.
They then proceeded to Lingara Nala where the accused had thrown the wearing apparels of the deceased and requested some local boys namely, Sudam Behera, Subharanta Moharana and Bishnu Nahak to recover the wearing apparels of the deceased and the above persons in presence of the witnesses dived into the water and found one brown colour chappal with violet tape paragon made, Size 7(left side), duly identified by the accused belonging to the deceased, one white-black-yellow colour printed shawler pant of the deceased, one black colour panty of the deceased being identified by the accused. The I.O seized the same in presence of the accused, the witnesses and the Executive Magistrate. They signed the seizure list.
As per the version of the accused he led the I.O and the other witnesses and the Executive Magistrate to Balaramprasad, where the accused had thrown his wearing apparels for causing disappearance of the evidence. On arrival of the witnesses, the I.O. and the Executive Magistrate at the spot the accused gave recovery of one ghee colour full shirt, having blood patches, one blue colour jean pant, with blood stains, a belt having waist size 28 inch and one maroon colour shawl. The I.O seized the same in presence of the witnesses and the accused and prepared the seizure list.
The I.O during investigation seized the Admission Register of Kangula Nodal U.P. School for the age proof of the deceased on production by the Headmaster and thereafter, sent the accused for medical examination with F.T.A Card issued from S.F.S.L, Rasulgarh, Bhubaneswar for D.N.A profiling and sent the biological objects of the accused to the S.F.S.L, Ragulgarh, Bhubaneswar. He sent a query to the medical officer regarding the weapon of offence. After receiving the chemical examination report from the S.F.S.L, Rasulgarh, Bhubaneswar, the C.D.R and S.D.R of SIM number-9938979661 from the Nodal Officer, Airtel, Bhubaneswar and on completion of investigation, submitted charge sheet against the accused under Sections 376(3), 302 and 201 of the Penal Code read with Section 6 of the Act. 03.2. In this case, cognizance of the offences under Sections 302, 376(3) and 201 of the Penal Code read with Section 6 of the Act was taken on 20.02.2019 and charges under the above sections were framed on 06.03.2019, as the accused denied the charges and claimed for trial. ;