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2017 DIGILAW 1067 (ORI)

Lodha Bara v. State of Orissa

2017-09-16

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. PRASAD, J. 1. The instant Jail Criminal Appeal is against the judgment and sentence dated 10.08.2005 passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court, Rourkela in S.T. Case No.78/17/2005 whereby and where under the sole appellant has been convicted for the charge under Sections 376(2)(f)/302 of the I.P.C. and accordingly sentenced to undergo R.I. for life and further sentence to undergo R.I. for a period of seven years for the charge under Section 364 of the I.P.C. and to pay fine of Rs.5,000/- on each account. In default of payment of fine, he shall further undergo R.I. for one year more. 2. We have heard the learned counsel for the parties and appreciated their arguments as also gone through the materials available on record. 3. The prosecution case, in brief, is that on 17.9.2004, the appellant took Anjali Lohar, a four years daughter of Telichand Lohar (Informant), at about 2.00 P.M. while she was playing on the road near the house of the informant. The girl did not return home. On account of delay in return of the girl, her mother Dhano Lohar searched for the girl, but could not find her. She informed the informant about it on his return to the house. The informant also searched for his daughter. He met the appellant and enquired the whereabouts of his daughter. Firstly, he denied having any knowledge about the girl. Then the persons of the locality have been informed. All of them enquired about the daughter of the informant from the appellant. Appellant replied that “KAMA KARI DEICHHI”. He led and went ahead to Jakhna Tungri (local name of a forest). Due to night hours, appellant could not find out the dead body. On the next day morning, appellant showed the dead body. Seeing the dead body of the girl which was not having her dress on her body and there were ants on her private part. Seeing this, out of suspicion, the appellant was asked about it. The appellant admitted before them that he committed rape and murdered her. The same was reported by the informant before the police and a case was registered against the appellant and necessary investigation was made. Accordingly, the charge-sheet has been submitted and the trial proceeded for hearing. 4. Seeing this, out of suspicion, the appellant was asked about it. The appellant admitted before them that he committed rape and murdered her. The same was reported by the informant before the police and a case was registered against the appellant and necessary investigation was made. Accordingly, the charge-sheet has been submitted and the trial proceeded for hearing. 4. After going through the evidence on record, the trial court has found the charge proved beyond all reasonable doubt for commission of offences under Sections 364/376(2)(f)//302 of the I.P.C. and convicted him there under as also sentenced him to undergo R.I. for life under Section 376(2)(f)/302 of the I.P.C. as also further sentence to undergo R.I. for a period of seven years under Section 364 of the I.P.C. and to pay fine of Rs.5,000/- on each account. The appellant is before this Court assailing the said judgment. 5. This Court has examined the depositions of the witnesses and from its perusal, it is evident that P.W.4, who is the mother, has deposed that a day before Ganesh Puja of 2004, her daughter Anjali Lohar aged about 4 years while playing in front of her house, the appellant took her in his bicycle, but did not return home. When enquired, he has not disclosed with respect to her whereabouts. Subsequently, she came to know that her daughter was raped and murdered by the accused. In the cross-examination, she has affirmed, as she has said in the examination-in-chief. P.W.1, who is the informant and father of the deceased Anjali Lohar, has deposed in the examination-in-chief that when informed by his wife about missing of his daughter, he started searching, but could not find her. At the evening time, the appellant returned in a motorcycle and when enquired about his daughter, he said that when he was attending call of nature, his daughter fled away. But when the villagers had asked to him about whereabouts of his daughter, he has said that he has murdered his daughter. Thereafter, on his instance, the dead body has found to be necked and there were ants on her private part. Then, he confessed that he committed rape and thereafter murdered her. In the cross-examination, he has confirmed what he has stated in the examination-in-chief. Thereafter, on his instance, the dead body has found to be necked and there were ants on her private part. Then, he confessed that he committed rape and thereafter murdered her. In the cross-examination, he has confirmed what he has stated in the examination-in-chief. P.W.2 is the villager of the informant and has deposed that he was informed by her father, i.e., P.W.1 with respect to the incident and commission of rape as also the murder. P.W.3 is the local villager and he has accompanied the appellant in the place of the dead body and the dead body was found on his instance. P.W.5 is the local villager, who also knew Anjali Lohar, the deceased daughter of Telichand Lohar (P.W.1). She has also corroborated the fact that the appellant was carrying the deceased Anjali Lohar in the bicycle. P.W.6 is also local villager, who has deposed that he saw the appellant returned from Jakhna Tungri (local name of a forest) by bicycle, but he was returned alone. P.W.7 is the Medical Officer, who has conducted post mortem examination and found the following injuries:- (i) Abrasion 1"x3/4" on the lower part of chin. (ii) Abrasion 3/4"x3/4" on the anterior part of the mid portion of the neck. (iii) One semi-lunar abrasion 1/4"x1/10" on the left angle of the mandible. (iv) Ecchymoses of the whole neck on the anterior aspect, on dissection under line muscles and vessels contused. Hyoid bone intact. (v) Anterior and posterior vaginal walls were bruised, hymen was torn, blood clots present. The vaginal valves were deeply congested, and bruises were red in colour. All the injuries have been found to be ante mortem in nature. The cause of death was asphyxia due to throttling. Time since death was 12 to 24 hours from the time of post mortem examination. Ext.2 is the post mortem report and Ext.2/1 is the signature of the Medical Officer (P.W.7). On query, as to whether the injuries detected on the vagina of the victim indicated act of rape or not, the Medical Officer (P.W.7) answered the query affirmatively. Ext.3 is the report and Ext.3/1 is his signature. P.W.8 is the Police Constable of Kalunga Police Outpost, who is the seizure witness. P.W.9 is working as a Medical Officer in Rourkela Government Hospital and had examined the appellant and given his finding that he was sexually capable. Smegma was absent. Ext.3 is the report and Ext.3/1 is his signature. P.W.8 is the Police Constable of Kalunga Police Outpost, who is the seizure witness. P.W.9 is working as a Medical Officer in Rourkela Government Hospital and had examined the appellant and given his finding that he was sexually capable. Smegma was absent. It was suggesting recent sexual intercourse. 6. In the statement given under Section 313 of Cr.P.C., the appellant has denied the charges. It is evident from the deposition of P.Ws.1, 2 and 3 along with the evidence of the Investigating Officer (P.W.10) that the dead body of the deceased was discovered from Jakhna Tungri (local name of a forest) that is on the basis of the place pointed out by the appellant. It is evident from the statement of P.W.5 that he has seen the victim girl was along with the appellant in a bicycle going towards the Jakhna Tungri, but P.W.6 deposed that while the appellant was returning, he was alone. P.W.4, the mother of the deceased Anjali Lohar, has also deposed that the appellant has taken her daughter in the bicycle, but thereafter she has never returned. It is evident from these depositions that there was no eye-witness, but it is a case of last seen leading to recovery. 7. Learned counsel for the appellant has argued that since it is a case of no eye-witness and as such, the case cannot be said to be proved beyond all reasonable doubt while the Additional Standing Counsel refuted the submission advanced on behalf of the appellant has submitted that it is a case of circumstantial evidence and extra-judicial confession leading to recovery and as such, the trial court taking into consideration the provision as contained in Section 27 of the Indian Evidence Act, has rightly found the charge proved against the appellant and as such, the same is not to be interfered with by this Court. 8. It is not in dispute about the settled proposition that Section 27 of the Evidence Act is an exception to Sections 25 to 26, which prohibit the proof of a confession made before the police officer of a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. 8. It is not in dispute about the settled proposition that Section 27 of the Evidence Act is an exception to Sections 25 to 26, which prohibit the proof of a confession made before the police officer of a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police “whether it amounts to a confession or not”, which relates distinctly to the fact thereby discovered to be proved. Thus, even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27, it is only that part which distinctly relates to the discovery which is admissible. For the applicability of Section 27, two conditions are pre-requisites, namely, (i) the information must be such as has caused discovery of the fact and (ii) the information must “relate distinctly” to the fact discovered. It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. It is also settled that the Court must disregard the inadmissible part of the statement and take note only that part of his evidence, which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further settled that discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to his existence. Reference with respect to the aforesaid settled proposition may be made to the judgments of the Hon’ble Apex Court in the case of Earabhadrappa v. State of Karnataka, AIR 1983 SC 446 (para-7) and Nisar Khan @ Guddu v. State of Uttaranchal, 2006 (9) SCC 386 (para-6 to 8). The Hon’ble Apex Court while dealing with the issue pertaining to the provisions of Section 27 of the Indian Evidence Act, has pronounced a judgment in the case of Mehboob Ali and another v. State of Rajasthan, reported in 2015 (9) JT 512 , wherein it has been held that the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. 9. This Court, after taking into the scope of Section 27 of the Evidence Act as also the factual aspect involved in this appeal, is of the considered view that the deceased Anjali Lohar was last seen along with the appellant by the P.W.4 and P.W.5 and the same has been corroborated by the P.W.6, who has said that while returning the appellant was alone. The appellant confessed his guilt and also disclosed the place where the dead body was and accordingly the dead body was recovered. It is a case of last seen and the confession leading to the recovery of the dead body. Hence the trial court, after taking into consideration the legal aspect along with the factual position involved in this case, has found the charges proved beyond all reasonable doubt. 10. In view thereof and according to our considered view, the judgment rendered by the trial court needs no interference. Accordingly, the appeal is dismissed.