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CASE NO.:

Appeal (crl.) 534-535 of 1994

PETITIONER:

STATE OF ORISSA

Vs.

RESPONDENT:

DIBAKAR NAIK & ORS.

DATE OF JUDGMENT: 23/04/2002

BENCH:

R.P. Sethi & Doraiswamy Raju

JUDGMENT:

SETHI,J.

Shrieks and wails of a blossoming young helpless woman

pleading for mercy, praying for sparing her life and honour

did not deter the vulture like culprits in committing the

most ghastliest crime, known under the sky, of rape and

culpable homicide for quenching their thrust for passion and

revenge. Overawed by the might of the accused, the

unfortunate husband, apparently concerned with the safety of

his son and self, could not rescue his wife from the

clutches of the accused. The alleged crime, committed by

the couple, for which they were punished by the accused was

the self-conceived notions of the culprits regarding

publication of some material against them by the deceased

and her husband, both Press Reporters. The accused persons

clothed themselves with the powers of both the police and

the courts, presumably on account of the political influence

they wielded in the area. Inaction by the local police

resulted in public agitation whereafter the investigation of

the case was handed over to the Dy.S.P. of the Crime Branch.

The trial court convicted Dibakar Naik (A-2), Raju Rao Dora

(A-3), Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera

@ Baba Tanti (A-7), Surendra Barik (A-8), Kelu Charan Das @

Tanti (A-9) and Madha Tanti @ Madhabananda Parmanik (A-11)

under Sections 376 and 302 read with Section 34 of the

Indian Penal Code. The other accused persons were convicted

and sentenced for minor offences punishable under Sections

448, 323, 341, 342, 347 and 506 and appropriately sentenced

for the same. The appeals filed by the accused persons

convicted under Sections 376, 302 read with Section 34 were

allowed and their convictions and sentences set aside.

Convictions and sentences of the other accused persons for

offences other than murder and rape were upheld. The appeal

filed by the State against the order of acquittal of some of

the accused with regard to minor and major charges of rape

and murder was dismissed. Aggrieved by the judgment of the

High Court, the State has filed the present appeals by

special leave.

Horrifying circumstances, as disclosed by the

prosecution are that Chhabirani aged about 23 years was

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raped and murdered on 3.10.1980 in the river bed of River

Biluakhai when she along with her husband was fleeing from

the village to save their lives, as commanded by the accused

persons. Nabhakishore (PW1) of about 30 years of age

married the deceased, who was a Bengali lady, in the year

1973. PW1 was a matriculate and resident of Village

Dhiasaibiri where his parents and three brothers were

residing. About 7 months prior to the occurrence, the

couple was residing in Village Biridi which is about 10-11

kms. from PW1's native village Dhiasaibiri. The couple had

a child of one and a half years of age. They were living in

the rented house belonging to Raju Rao Dora (A-3). Before

his marriage PW1 had served as a teacher. Seven months

before settling in Village Biridi, Nabhakishore (PW1) had

become a Press Reporter of the daily Newspaper

'Pragatibadi', weekly Newspaper 'Nirvika' and monthly

newspaper 'Niankhuntha'. The deceased was also a Press

Reporter of monthly newspaper 'Durmukha'. Besides being a

Press Reporter, PW1 was also an agent of some magazines.

Prior to the date of occurrence on the reports of

Nabhakishore (PW1), news item in 1980 July issue of

'Nirvika' were published. The said news items were against

Raju Rao Dora or Kalpana Mohanty whose brother is a friend

of accused Sudhir Parida (A-4) or against Block Development

Officer and against the Management of the local hospital.

After publication of the said news item the accused Raju Rao

Dora demanded PW1 to vacate his house and even attempted to

lock the same but failed in his attempt. A-2, A-4 and A-5

threatened PW1 for his publishing the news item pertaining

to the said accused and the Block Development Officer.

Prior to the date of occurrence, A-3 is alleged to have

assaulted PW1 and outraged the modesty of the deceased with

the help of his gang regarding which PW1 lodged FIR No.230

of 1980 at Jagatsinghpur Police Station. Again a month

prior to the occurrence the said accused, with the help of

persons belonging to his group, allegedly committed theft in

the house in occupation of PW1 for which another FIR was

lodged as a consequence of which Shibaji Mania, the nephew

of A-5 was arrested. A-5 thereafter threatened PW1 of being

killed if he did not leave the village at the earliest.

On 2.10.1980 A-2 who was the Sarpanch of the village

directed A-4 to keep watch over PW1. It was alleged that on

that day at night A-4, A-5, A-6, and A-11 were playing cards

with Hrudananda Patra (PW32) and Kalandi Charan Das (PW22)

in the vacant house of A-3 which adjoined the house under

the occupation of the deceased and her husband. On the

morning of 3.10.1980, A-2 inquired about the whereabouts of

PW1 from PW32. According to the prosecution, when the

deceased and her husband were waiting at the Biridi bus

stand on 3.10.1980 to leave for Cuttack, some of the accused

persons met PW1 at the bus-stand and directed him to go to

the office of the Congress Party at Biridi which was at a

distance of about 1 kilometer from the bus-stand because A-2

wanted him to be there. However, when PW1 intimated the

accused persons that he would meet A-2 on that day about 4

p.m. after coming from Cuttack, the said accused persons

compelled him to immediately meet A-2 otherwise he would be

lifted and forcibly taken. He was rebuked in filthy

language. Under the threat of the accused persons the

couple returned from the bus-stand to reach the Congress

Party office in the Weekly Market. They were followed by

the accused persons who had threatened them. As their house

fell on the way, the couple entered inside the house and the

accused following them waited outside. The deceased

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requested her husband not to go to the Congress Party Office

with the aforesaid accused persons, who thereafter attempted

to enter inside the house. At this stage the deceased

threatened the accused persons with a paper cutter looking

like a knife which deterred them from entering the house.

Subsequently A-2 and A-5 entered inside the house and

dragged the couple from the house and brought them outside.

A-10 and A-12 caught hold of PW1 and A-5 gave him kicks. He

was taken to the Congress Party office where A-3, A-4, A-6,

A-9, A-11 and others were waiting. A-6 assaulted PW1 by

giving him fists and kick blows. A-2 informed the other

accused persons that PW1 was leaving the village without

making payment of any person to whom he owed in all a sum of

Rs.100/-. As he expressed his inability to make the

payment, A-9 and A-12 snatched away the gold ring which the

deceased was wearing who had also come at that place.

Thereafter one of the accused brought a piece of paper

wherein it was written that the theft case reported by PW1

was false and that he was never assaulted by any of the

accused persons. Outnumbered by accused persons and under

their threat, the PW1 was compelled to sign the said

writing. PW1 was locked in the office room of the Congress

Party and released only in the evening. A-4 and A-5

threatened PW1 to leave the village that very night. When

PW1 came to his house, A-2 came there and asked him to leave

the house otherwise he would be killed by the accused

persons. Left with no option, the couple decided to leave

the place and to go to the house of Premoda Jena (PW13) who

was a resident of village Manguli situated on the other side

of the River Biluakhai.

At about 7.30 p.m. on 3.10.1980 the deceased and PW1

stealthily left their house and avoiding the known path,

took another route through Talabana for reaching the village

Manguli. While they were proceeding in the river bed, the

deceased informed PW1 that somebody was coming from behind.

PW1 looked back and focussed his torch-light in that

direction and found that A-5 and A-6 were following them

from a short distance. PW1 asked the deceased to proceed

hurriedly. PW1 took the child from the deceased and both of

them started running. The deceased, though running, was

left behind. While running PW1 heard the cries of his wife

who was at a distance of about 20 yards from him. He again

focussed the torch-light and saw that his wife was

helplessly lying on the ground and A-5 and A-6 had caught

hold of her. He also saw that A-2, A-3, A-7, A-8, A-9, A-11

were standing near his wife. A-5 directed the other accused

persons to catch hold of PW1 whereupon A-7 and A-11 chased

him. In the course of chasing the aforesaid persons went

ahead of the place where PW1 was running as they could not

notice him due to darkness. Thereafter PW1 did not take the

route towards the village Manguli and proceeded towards

Village Ukundara which was about 2 kms. from that place. He

went to the house of Anama Padhi of Ukundara as he was known

to him. He narrated the incident to him. His father

Brajakishore Padhi (PW10) advised him to report the incident

to the Sarpanch Shamkanta Mohanty who advised him to go to

the spot with four or five persons. Thereafter PW1

accompanied by PW10 and 2 to 4 persons went to the river bed

where he found naked dead body of his wife lying in the

river bed. She was also bleeding from neck. Her blouse was

torn, the saree and shaya had been removed. Though he

wanted to remain at the river bed by the side of the dead

body of his wife, but the persons accompanying him did not

agree to remain there as they apprehended danger to their

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lives. Left with no option PW1 returned to the house of

Premoda Jena (PW13) of Manguli. He informed the incident to

him and requested him to accompany him to the police

station. PW13, however, did not agree. The helpless

husband, accompanied by PW13 went to Ankhia Sub Post Office

in the night which was at a distance of about 4 kms. from

Manguli. When he wanted to contact the police station over

the telephone, he was initially intimated by the Post Master

that the phone line was out of order but upon his

insistence, the call was made at the police station which

was received by Constable Kashinath Nai (PW19). PW1

reported that his wife had been murdered and requested the

constable to intimate the officer-incharge of the police

station about the occurrence requesting him to come on spot

immediately. Constable Kashinath Naik (PW19) told PW1 to

wait as he was going to inform IOC to talk with him over the

phone. PW1 waited till the morning but neither the Officer

incharge of the police station nor the constable contacted

him. It is alleged by the prosecution that immediately

after the occurrence some of the accused persons accompanied

by the Block Development Officer proceeded to Jagatsinghpur

to exercise their influence upon the police for not

registering the case at the instance of PW1. On 4.10.1980

PW1 came at the police station and met ASI (PW24) informing

him about the incident. Instead of recording the FIR, the

PW1 was taken to the officer-incharge of the police station.

PW1 made over the written report to the said officer

incharge who advised him to score that portion of the report

which related to the phone message and also to delete the

names of some of the accused persons. His signature were

obtained on blank papers. He was directed to proceed to the

spot where the police accompanied by Chokidar reached. Some

of the accused persons were arrested and again as per

direction of PW36, PW1 wrote the FIR dictated to him because

the earlier report had been destroyed by Prusty Babu.

Despite registration of the case, no effective

investigation commenced, with the result that public of the

area started agitation alleging inaction by the police under

the influence of political leaders. The Superintendent of

Police thereafter directed Padma Lochan Mohanty, CI of

police to take up the investigation of the case and

consequently PW38 took charge of the investigation on

7.10.1980. Ultimately, the investigation was entrusted to

Dhandeswar Pati (PW41) on 12.10.1980 who was then the D.S.P.

of the Crime Branch. In the course of investigation the

inquest report Exh.3/2 was prepared. Eight pieces of broken

glass bangles and a key were seized from the spot. The dead

body was sent for post mortem examination. PW21 conducted

the post-mortem examination of the dead body of deceased

Chhabirani on 5.10.1980 at 10 a.m. and as per post-mortem

report Ext.9 noted the injuries on her person. From the

house of A-5 Lungi, full shirt, underwear, banian and

handkerchief were seized. Lungis were also seized from the

house of A-9. Wearing clothes of the deceased, the log book

of the jeep, a torn shirt, some pieces of biris, etc. were

siezed vide various seizure memos. A test identification

parade was conducted by the SDM, Jagatsinghpur in which PW-2

and PW-9 identified some of the accused persons. After

recording the statements of witnesses under Sections 161 and

164 of the Code of Criminal Procedure and obtaining the

report of the Chemical Analyser and Serologist, the charge-

sheet was submitted in the court. After the conclusion of

the trial of the respondents-accused were convicted for

various offences and sentenced accordingly. The appeals

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filed by the accused persons were allowed vide the judgment

impugned in these appeals.

We have heard the learned counsel appearing for the

parties at length and critically examined the whole record.

In order to prove its case the prosecution examined 41

witnesses and to prove their innocence, the accused persons

produced two witnesses. PWs 2, 3 and 9 are the witnesses to

the occurrence which took place near Biridi Bus-stand in the

morning on the date of occurrence. PWs 4, 5, 6, 16, 24 and

39 are the witnesses relating to the incident which took

place in the office of the Congress Party. PW7 has deposed

about the carrying of a letter to the father of PW1

Dukhishyam (PW8), on receipt of which he came towards Biridi

but was prevented from reaching his son as he was threatened

by two of the accused persons. PW11 is the jeep driver of

the Block Development Officer who has stated about some of

the accused having gone to Jagatsinghpur on the night of the

occurrence allegedly to influence the police. Damei Sahu

(PW12) and Debendra Mohanty (PW33) have deposed that they

had seen Chhabirani, the deceased in the river bed before

rape and murder. PWs10 and 13 are the witnesses to whom PW1

contacted in the night of occurrence after fleeing from the

river bed where his wife was subjected to rape and murder.

PWs22, 27 and 32 have stated that they had seen the accused

persons playing cards in the vacant house adjacent to the

house under occupation of PW1 and his deceased wife on the

night of 2.10.1980. PW17 has prepared the spot site plan.

PW18 is the Police Constable who carried the dead body for

post-mortem examination which was performed by Dr.Indramani

Jena (PW21). PW19 is the police constable of the Police

Station Jagatsinghpur who received the phone message from

PW1 regarding the incident during the night. PW20 is the

Post Master Anakhia Post Office wherefrom PW19 was contacted

by PW1 over phone. PW26 is the SDJM Jagatsinghpur who

conducted the test identification parade. PWs14, 15, 28, 29

and 30 are formal witnesses to the inquest report and the

seizure memos. PW31 has produced the log book of the jeep

which was seized during investigation. PW34 is the Sub-

Inspector of Police who had taken photographs on the spot.

PW40 was cited as an eye-witness but he turned hostile and

did not support the case of the prosecution. There are two

groups of the investigating officers in the present case.

The first group being of IOs Chakradhar Baral, ASI (PW25),

Bhagaban Misra, SI (PW36) and Padamalochan Mohanty, CI

(PW38) and the second group comprised of Nityananda

Samantaray, SI Crime Branch (PW37) and Dhaneswar Pati, DSP,

Crime Branch (PW41).

DW1 has spoken about the incident at Biridi Congress

Party Office and DW2 has proved that some of the accused

persons were married having children to suggest that they

could not have committed the crime of rape.

Nanda Mohanty (A-1) and Nakula Behera (A-12) were not

charged and Sudbir Parida (A-4) and Babaji Buna @ Das (A-10)

were acquitted by the trial court.

The accused have been charged for commission of the

offences on three different occasions, namely, at the Bridi

Bus Stand, in the Biridi Congress Party Office and in the

river bed. So far as the conviction and sentence of the

accused-respondents being responsible for the occurrence at

Biridi bus-stand and Congress Party office is concerned, it

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has been stated at the Bar that such accused persons have

already suffered sentence and imprisonment awarded to them.

Such accused persons are Nanda Mohanty (A-1), Sudbir Parida

(A-4), Babaji Buna @ Das (A-10) and Nakula Behera (A-12).

We do not find any evidence against the aforesaid accused

persons for holding them guilty regarding the commission of

the offence of rape and murder as it happened in the river

bed.

It may also be noticed, at this stage, that Raju Rao

Dora (A-3) and Babaji Mania (A-6) who are respondents 2 and

4 in these appeals have died during the pendency of the

appeals and the appeal in so far as it relates against the

aforesaid respondents 2 and 4 has become infructuous.

In these appeals the culpability of Dibakar Naik (A-2),

Raju Rao Dora (A-3), Birabar Mania (A-5), Bihra Behera @

Baga Tanti (A-7), Surendra Barik (A-8), Kelu Charan Das (A-

9) and Madha Tanti @ Madhabananda Parmanik (A-11) has to be

adjudicated so far as the commission of main offences are

concerned. It may be noticed that these accused persons

have also undergone the sentences awarded to them for the

minor offences.

We are aware of the limitations of this Court in an

appeal filed under Article 136 of the Constitution.

Generally this Court does not interfere with the finding of

fact arrived after proper appreciation of evidence by the

Courts below. If, however, such a finding is perverse,

based upon no evidence or based upon such evidence which is

inadmissible or is the result of imaginative hypothesis and

conjectures, the Court is entitled to re-appreciate the

evidence to ascertain the validity of the judgment impugned.

In Mst.Dalbir Kaur & Ors. vs. State of Punjab [1976(4) SCC

158] the general principles governing interference by the

Supreme Court in criminal appeal by special leave were

summarised as follows:

"(1) that the court would not interfere with the

concurrent finding of fact based on pure

appreciation of evidence even if it were to

take a different view on the evidence;

(2) that the court will not normally enter into a

reappraisement or review of the evidence,

unless the assessment of the High Court is

vitiated by an error of law or procedure or

is based on error of record, misreading of

evidence or is inconsistent with the

evidence, for instance, where the ocular

evidence is totally inconsistent with the

medical evidence and so on;

(3) that the Court would not enter into

credibility of the evidence with a view to

substitute its own opinion for that of the

High Court;

(4) that the Court would interfere where the High

Court has arrived at a finding of fact in

disregard of a judicial process, principles

of natural justice or a fair hearing or has

acted in violation of a mandatory provision

of law or procedure resulting in serious

prejudice or injustice to the accused;

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(5) the Court might also interfere where on the

proved facts wrong inferences of law have

been drawn or where the conclusions of the

High Court are manifestly perverse and based

on no evidence."

To the same effect are the judgments of this Court in Duli

Chand vs. Delhi Administration [1975 (4) SCC 649], Ramanbhai

Naranbhai Patel & Ors. vs. State of Gujarat [2000 (1) SCC

358.

Mr.Mehta, learned counsel appearing for the appellant-

State submitted that the findings of the High Court

resulting in acquittal of the accused are perverse, based

upon no evidence and the result of surmises and conjectures.

On the other hand learned counsel appearing for the

respondents have submitted that as the view taken by the

High Court was a probable view, this Court should not

interfere in appeal by special leave.

For acquitting the accused, the High Court has held

that PW1 cannot be relied upon as he had not disclosed the

names of the accused persons to PWs10 and 13 whom he met

immediately after the occurrence. Finding that PW1 was

proved to be a coward who did not come to the rescue of his

wife, the Appellate Court rejected his testimony. He was

found contradicting his own testimony when he allegedly

stated that A-5 had stabbed his wife which also stood

contradicted by the medical evidence. The testimony of PW1

did not find favour with the High Court on account of non-

seizure of the torch by the investigating agency. The High

Court found that the view taken by the Sessions Judge

regarding the perfunctory nature of the investigation was

not acceptable which entitled the accused to be acquitted.

The views taken by the High Court apparently appears to

be perverse, not based upon evidence, completely in negation

of the normal human behaviour of an individual caught in

such a horrifying situation and forgetting that for the

fault in the investigation no benefit can be given to the

accused persons. The finding of the Sessions Judge that the

investigation was perfunctory is based upon almost admitted

facts. The frequent change of the investigating officer

proved, beyond doubt, that the initial investigation was

tainted in favour of the accused apparently under their

influence. It is only when Dhaneshwar Pati, DSP, Crime

Branch (PW41) took over the investigation that some evidence

was collected to find out the truth regarding the

allegations made by PW1. Non disclosure of the names by PW1

to PWs10 and 13 could not be made a ground for rejecting his

testimony as it was in evidence that the said witness was

under a shock and the aforesaid two witnesses did not

enquire from him names of the accused persons. The efforts

made by PW1 to reach the police station during the night

speak of his sincere effort to ensure that the real culprits

were brought to book. The making of telephone call by PW1

has been admitted by PW19. However, the conduct of the

officer-incharge of the police station by not responding to

the telephone call or to reach on spot is regrettable. Many

questions arise regarding the conduct of the police

particularly when the accused persons are shown to have

reached at Jagatsinghpur to influence the police personnel.

It is regrettable to note that the officer-incharge of the

police station directed PW1 to delete certain portions from

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the written report. There is no explanation as to why the

signatures of PW1 were obtained on two blank papers. Only

because PW1 could not save his wife, did not warrant a

finding that he was a coward and should not be believed.

The circumstances narrated by the aforesaid witness show the

presence of a number of accused persons, some of whom were

even armed with knife. He had their infant child in his lap

and heard the deceased crying and appealing to PW1 to save

his life and the life of the infant. By no standards PW1

can be termed to be coward under the circumstances. Even if

he was a coward there is no ground to not rely upon his

testimony on that ground alone. Failure of the police to

search for the torch and seize it particularly when the

investigating agency was found to be under the influence of

the accused persons could not be made a ground to reject the

otherwise self-inspiring testimony of PW1. We are satisfied

that the present case is a fit case requiring our

interference as the High Court has failed to discharge its

statutory obligations. The accused have wrongly been

acquitted on surmises and conjectures ignoring the

trustworthy evidence of PW1 by reaching at perverse

conclusions regarding the facts of the case.

In view of the perversity in the judgment of the High

Court we have opted to scrutinise and re-appreciate the

evidence in the case to find about the guilt of the accused-

respondents and the extent of their involvement in the case.

It may be noticed, at this stage, that in the FIR

recorded on 4.10.1980 at 8 a.m., PW1 had given the names of

A-2, A-3, A-5, A-6, A-7, A-8, A-9 and A-11 only. In his

deposition with respect to the occurrence which took place

in the river bed when Chhabirani, his wife, was raped and

murdered, the said witness has not attributed any overt act

to A-2, A-3, A-8 and A-9. It is in evidence that all the

accused persons, named in the FIR, wanted the deceased and

her husband to leave the village and probably to ensure it

they were following them. It cannot be ruled out that the

accused persons, named in the FIR, excepting A-5, A-6, A-7

and A-11 wanted only to chase the deceased and PW1 and did

not intend to commit the offence of either the rape or the

murder. In the absence of any overt act attributed to them,

there is nothing on record to hold that A-2, A-3, A-8 and A-

9 shared any common intention with A-5, A-6, A-7 and A-11

who had actually caught hold of Chhabirani and followed the

witness (PW1) with the intention to apprehend him. In his

statement PW1 has stated that at about 7.30 a.m. on

3.10.1990, he, along with his wife, left the house to

abandon the village Biridi. His wife was carrying the baby.

They did not go through the village road but proceeded

through Talabana. Near the Block Office they entered inside

the river Biluakhai. There was not much water in the river

which, at that time, had two streams. After they crossed the

first stream, he found three persons with a lantern light

proceeding towards Village Manguli after crossing the river.

He was ahead of his wife. His wife informed him that

somebody was following them. He looked back and focussed

torch light and found A-5 and A-6 were coming at a short

distance. He asked his wife to proceed hurriedly.

Thereafter both of them ran. At the request of his wife he

carried infant baby and ran quickly. His wife, while

running, was behind him. He heard the cries of his wife

when she was at a distance of 20 yards from him. She fell

down on the sand and when he focussed torch light he saw her

lying on the ground and A-5 and A-6 had caught hold of her.

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He also found A-7 and A-11 and some others standing near his

wife. Bira Mania (A-6) was holding a knife and he directed

the other accused persons to catch hold of the witness.

Only A-7 and A-11 chased the witness and the other accused

persons remained standing near his wife. He left the route

towards Village Manguli and to save his life proceeded to

Ukundara which was about 2 kms. from that place. On the way

he fell down and lost the torch. Thereafter he, as earlier

noticed, made efforts to lodge the report but did not

succeed. Ultimately the First Information Report was lodged

by him early in the morning at 8 a.m. on 4.10.1980. The

deposition of PW1 appears to be natural description of the

occurrence. It is alleged that he has tried to improve by

exaggerating and blowing up the occurrence with the

intention of involving some of the accused persons who were

merely by-standers but under the circumstances of the case

that appears to be the natural reaction of a frustrated

husband whose wife was raped almost in his presence and

under his nose.

To reject the testimony of PW1, the High Court appears

to have adopted a technical approach. This Court in The

State of Punjab vs. Jagir Singh, Baljit Singh & Karam Singh

[1974 (3) SCC 277] has held that a criminal trial is not

like a fairy tale where one is free to give flight to one's

imagination and phantasy. It concerns itself with the

question as to whether the accused arraigned at the trial is

guilty of the crime with which he is charged. Crime is an

event in real life and is the product of interplay of

different human emotions. In arriving at the conclusion

about the guilt of the accused charged with the commission

of a crime, the court has to judge the evidence by the

yardstick of probabilities, its intrinsic worth and the

animus of witnesses. In State of H.P. vs. Lekh Raj &

Another [2000 (1) SCC 247] this Court held:

"The criminal trial cannot be equated with a mock

scene from a stunt film. The legal trial is

conducted to ascertain the guilt or innocence of

the accused arraigned. In arriving at a

conclusion about the truth, the Courts are

required to adopt rational approach and judge the

evidence by its intrinsic worth and the animus of

the witnesses. The hypertechnicalities or figment

of imagination should not be allowed to divest

the court of its responsibility of sifting and

weighing the evidence to arrive at the conclusion

regarding the existence or otherwise of a

particular circumstances keeping in view the

peculiar facts of each case, the social position

of the victim and the accused, the larger

interests of the society particularly the law and

order problem and degrading values of life

inherent in the prevalent system. The realities

of life have to be kept in mind while appreciating

the evidence for arriving at the truth. The

courts are not obliged to make efforts either to

give latitude to the prosecution or loosely

construe the law in favour of the accused. The

traditional dogmatic hypertechnical approach has

to be replaced by rational, realistic and genuine

approach for administering justice in a criminal

trial. Criminal jurisprudence cannot be

considered to be a Utopian thought but have to be

considered as part and parcel of the human

civilization and the realities of life. The

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courts cannot ignore the erosion in values of life

which are a common feature of the present system.

Such erosions cannot be given a bonus in favour of

those who are guilty of polluting society and the

mankind".

Regarding non-seizure of the torchlight, used by the

witness to see the occurrence, it was held in Balo Yadav &

Ors. vs. State of Bihar [1997 (5) SCC 360] that such an

omission cannot be considered as a lapse on the part of any

investigating officer and as such it was not a ground for

impairing the testimony of the witness concerned. Even if

there was failure on the part of the investigating agency to

take steps for the seizure of torchlight, such an omission

cannot be treated as a ground to reject the prosecution

case.

Much has been made out by the High Court for the

alleged failure of PW1 to disclose the name of the accused

persons to PWs10 and 13. Non mentioning of the names of the

accused is factually not borne out and even if accepted

would not render his testimony unacceptable. Post event

conduct of a witness cannot be predicted on specified lines.

It varies from person to person as different people react

differently under different situations. PW1 had lost his

wife in a most ghastly crime committed by the culprits. He

apprehended danger to his life and was under shock. PWs10

and 13 did not ask him about the names of the persons

involved in the crime nor did he think it proper to disclose

such names. Under such circumstances no adverse inference

could be drawn against PW1 making his testimony doubtful or

unbelievable. In Rammi @ Rameshwar vs. State of M.P. [1999

(8) SCC 649] this Court held:

"This Court has said time and again that the post-

event conduct of a witness varies from person to

person. It cannot be a cast-iron reaction to be

followed as a model by everyone witnessing such

event. Different persons would react differently

on seeing any violence and their behaviour and

conduct would, therefore, be different"

Under the facts and circumstances, the conduct of PW1 cannot

be held to be abnormal.

On re-appreciation of whole of the evidence we have

come to a conclusion that Birabar Mania (A-5), Babaji Mania

(A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @

Madhabananda Parmanik (A-11) were responsible for the

occurrence which took place in the river bed wherein the

deceased was subjected to gang-rape. The aforesaid accused

persons, namely, Birabar Mania (A-5), Babaji Mania (A-6),

Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @

Madhabananda Parmanik (A-11) were, therefore, rightly

convicted by the trial court for the commission of the

offence punishable under Section 376 and sentenced

accordingly.

However, the nature of the injuries inflicted upon the

person of the deceased indicate that the accused persons had

not intended to cause her death. Dr.Indermani Jena (PW21)

who conducted the post-mortem over the dead body of

Chhabirani had found the following injuries:

"(1) One swelling 1" diameter irregularly circular

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over right mastoid process.

(2) One swelling (which was black in colour) on

the upper half of right breast 2" in diameter

irregular circular.

(3) On dissection I found the following:

The swelling in right mastoid area had under

lying haemotome. There was fracture of right

fourth rib under injury No.2. Right side

chest was filled with blood of about one

litre. The right lungs was displaced and was

inured in anterior surface by fractured rib.

Heart chamber was empty, that is, there was

no blood.

(4) Stomach was empty.

(5) There were two echymosis of " in diameter

each on posterior vaginal wall. The injuries

were 5 0' clock and 7 O' positions.

(6) On examination of the vaginal smear I found

dead spermatoza and opthelial cells.

(7) By the time of my examination, there was

process of decomposition. Skin denudation

had started. Tongue was protruded and

bitten. There was bleeding from right angle

of mouth and both ears. Abdomen was

protruded due to foul gases. Death was

within 48 hours of the P.M. Examination."

He has opined that all injuries were ante mortem. Death was

due to injuries causing internal haemorrage. There were

signs of forcible sexual intercourse. It was a case of

violent type of intercourse. The injuries found were not in

normal course of sexual intercourse. Any violent assault

even without rape could cause injuries 1 and 2 and the

corresponding internal injuries. Injury No.2 with

corresponding internal injury was sufficient to cause the

death.

Whoever cause death by doing an act with the intention

of causing death or with the intention of causing such

bodily injury as is likely to cause death or with the

knowledge that he is likely, by such act, to cause death, is

responsible for the commission of the offence of culpable

homicide. Culpable homicide is murder if the act by which

the death is caused is done with the intention of causing

death and is not covered by any of the exceptions of Section

300 of the Indian Penal Code. As already noticed, in this

case there is no evidence to show that the aforesaid accused

persons proved to have been involved in the occurrence, had

intended to cause the offence of murder within the meaning

of Section 300 as punishable under Section 302 of the Indian

Penal Code. However, on proof of the commission of offence

of gang-rape found to have been committed in a violent

manner, they are assumed to be having the knowledge that by

their action it was likely that the deceased would have

died. The aforesaid accused are, therefore, guilty of the

offence, punishable under Part-II of Section 304 of the

Indian Penal Code. While acquitting the other respondents

we hold Birabar Mania (A-5), Babaji Mania (A-6), Bhira

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Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda

Parmanik (A-11) guilty for the commission of offences

punishable under Section 304 (II) read with Section 34 of

the Indian Penal Code besides the commission of offence

punishable under Section 376 read with Section 34 of the

Indian Penal Code. The conviction and sentence awarded by

the trial court to Birabar Mania (A-5), Babaji Mania (A-6),

Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @

Madhabananda Parmanik (A-11) under Section 376 of the Indian

Penal Code is upheld. On proof of the offence punishable

under Section 304(II) read with Section 34 IPC, the

aforesaid accused persons are sentenced to undergo rigorous

imprisonment for 10 years. Both the sentences shall run

concurrently.

The appeals are partly allowed in so far as Birabar

Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baga Tanti

(A-7), and Madha Tanti @ Madhabananda Parmanik (A-11) who

are respondent Nos.3, 4, 5 and 8 in these appeals, are

concerned. As respondent No.4 (A-6 in the trial court) is

dead, the respondent Nos.3, 5 and 8 who were accused Nos.5,

7 and 11 are directed to be taken into custody for

undergoing the sentence awarded if they have not already

suffered the imprisonment. Appeals in regard to other

accused persons are dismissed holding them not guilty for

the commission of the offences punishable under Sections 376

and 304 read with Section 34 IPC. Their conviction and

sentence for the minor offence, as awarded by the trial

court, is upheld. As they are stated to have undergone the

sentence awarded, they need not be arrested.

.......................J.

(R.P. Sethi)

.......................J.

(Doraiswamy Raju)

April 23, 2002