STATE OF ORISSA Vs. PRADEEP DALEI

JUDGEMENT

(1.) BOTH the death reference and the criminal appeal arise out of the judgment of conviction dated 01.10.2012 and order of sentence dated 08.10.2012 passed by the learned Sessions Judge, Sambalpur in S.T. Case No. 176 of 2012. Therefore, they are heard together and disposed of by this common judgment. By the impugned judgment and order, accused Pradeep Dalei has been convicted under sections 366, 376(2)(f), 302 and 201, IPC. For the offence under section 366, IPC, he has been sentenced to undergo R.I. for 10 (ten) years with a fine of Rs. 5,000/ - in default to further undergo R.I. for one year. For the offence under section 376(2)(f), IPC, he has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 7,000/ - in default to further undergo R.I. for 18 months. For the offence under section 201, IPC, he has been sentenced to R.I. for five years and pay a fine of Rs. 2,000/ - in default to further undergo R.I. for six months. For the offence under section 302, IPC, he has been sentenced to death and directed to pay a fine of Rs. 10,000/ - without any default sentence. The reference made by the learned trial Judge under section 366, Cr.P.C. for confirmation of the death sentence has been registered as DSREF No. 3 of 2012 and the appeal preferred by the convict Pradeep Dalei challenging his conviction and sentence has been registered as CRLA No. 616 of 2012.

(2.) THE case of the prosecution, in brief, is that the deceased Urmila (a minor girl of seven years) was the younger daughter of Suthul Nag and Santosini Nag (P.W. 1). On the date of occurrence (02.09.2012) the deceased was residing with her parents at Rani Bagicha, Tanlapada, a slum area of Sambalpur town. Accused -appellant Pradeep Dalei, who is a resident of Mundali in the district of Cuttack and a driver by profession, was residing with his wife and two sons in the rented house of Subrat Panigrahi P.W. 10 at Tamji Temple Pada. He used to regularly visit Rani Bagichha to the house of one Suru Motari, who happens to be his "Kaka -Sasura" (brother of wife's father), situated in front of the house of the deceased. By that process, he became familiar with the residents of Rani Bacgicha so also the children (including the deceased), who usually called him as 'MAMA'. The accused -appellant, in the evening of 02.09.2012, came to Rani Bagicha (Tanlapada) by riding a bicycle (M.O.I.) and reached near the house of P.W. 3, situated at a distance from the house of the informant P.W. 1, where the deceased was playing with her friend (son of P.W. 3) on a heap of sand. It is alleged that accused -appellant called the deceased to go with him for eating Chowmin. The deceased went to her house and informed P.W. 1 that she was going with accused -appellant to eat Chowmin. Even though P.W. 1 restrained her to go with accused -appellant, the deceased, who was fascinated to eat Chowmin, did not listen her mother and came back, whereafter accused -appellant taking the deceased in his bicycle went on the ring road, and by then it was about 6.00 p.m. to 6.30 p.m. This was witnessed by P.W. 3, who was then washing her related granddaughter in the water tap near her house, so also by Chakanal, Padmafulla Nayak and others. When the deceased did not return till 8.30 p.m., P.W. 1 along with P.W. 3 and other inhabitants of the Tanlapada started searching for the deceased. Then P.W. 1, P.W. 3 and some other females of Tanlapada went to the house of the deceased at Ramji Temple Pada to ask him about the deceased as she was lastly seen going with him. The accused -appellant, who was present in his house, straightaway refused to have seen the deceased being asked by P.W. 1. This raised doubt in the mind of P.Ws. 1, 3 and others because they had seen the deceased going with the accused during the evening. Being asked again, the accused -appellant started trembling and got sweat. He was found nervous and faltering. The suspicion so raised against him became concrete and P.W. 1 along with P.W. 3 with some other persons came to Sambalpur town police station while some other residents of the "Pada" remained there with the accused -appellant. In the police station, P.W. 1 narrated about the incident orally and the lady Sub -Inspector of Police (P.W. 11), in absence of the LLC, reduced the same to writing in Ext. 4 and registered Sambalpur Town P.S. Case No. 140 dated 02.09.2012 under section 366, IPC against the accused -appellant. P.W. 11 then took up investigation during course of which she apprehended the accused -appellant from his house, recorded the statements of P.W. 1, P.W. 3 and others. P.W. 11 along with P.W. 1 and P.W. 3 visited the spot where the deceased was playing on the sand. In the police station, during interrogation by P.W. 11, the accused -appellant in presence of witnesses, namely, Karunakar Behera (P.W. 2) and Rama Chandra Bagarty confessed that he took the deceased with him in a bicycle on the ring road and near Gourishankar Park (locally known as "L.K. Park") keeping his cycle in the roadside, he took the deceased in his arms towards the side of the park and laying her down committed the intercourse. As the deceased started crying due to severe pain and bleeding from her private part, the accused -appellant got frightened and finding no way out throttled her to death and thrown her dead body inside the bush with a view to conceal it. Having confessed so, the accused -appellant led the police and the witnesses including P.W. 2 to the spot and showed the dead body of the deceased lying inside the bush. Then, P.W. 11 held inquest over the dead body in presence of the witnesses, prepared the inquest report Ext. 3 and sent the dead body to V.S.S. Medical College and Hospital, Burla for postmortem examination. Accordingly, the case was turned to one under sections 366, 376(2)(f), 302 and 201, IPC and on completion of investigation P.W. 12, the I.I.C. of Sambalpur Town P.S., who took charge of investigation from P.W. 11 on the strength of the orders of the Superintendent of Police, Sambalpur, submitted charge -sheet against the accused -appellant under the above sections.

(3.) ON receipt of the charge -sheet, the learned magistrate took cognizance of the offences and committed the case to the court of learned Sessions Judge, Sambalpur for trial. Learned trial Judge framed charge under sections 366, 376(2)(f), 302 and 201, IPC, to which the accused pleaded not guilty and claimed to be tried. In order to prove its case, prosecution examined as many as 12 witnesses including the doctor and the investigating officers, besides exhibiting 25 documents and 9 material objects. The accused -appellant in his defence did not choose to adduce any oral evidence but, however, exhibited memo of his arrest as Ext. A. In his statement under Section 313, Cr.P.C., the accused took the plea of denial and claimed to have been falsely implicated. On culmination of trial, the accused was found guilty for commission of offence punishable under sections 366, 376(2)(f), 302 and 201, IPC and he was convicted and sentenced as already stated hereinbefore.