The Orissa High Court last week commutted the death sentence of a 28-year-old man to life imprisonment while upholding his conviction for murder of a 9-year-old girl, but acquitting him of charges of raping her.
A resident of Godaharishpur village in Jagatsinghpur district, the girl went missing on March 20, 2018. The next day, her body was found in a cashew nut orchard nearby. The same day, police arrested a villager Kalia Manna on the charges of allegedly raping and murdering the girl. The Special Pocso court, Jagatsinghpur, had convicted Manna in the case and awarded him death sentence on September 10, 2019. The death sentence was then referred to the High Court for confirmation which was heard by Justices S. K. Mishra and A. K. Mishra.
"There is no direct evidence and the case is based on circumstantial evidence. The circumstances on which an inference is sought to be drawn must be cogently and firmly established and in order to sustain conviction, must be complete and must be incapable of explanation of any other hypothesis than that of guilt of the accused", noted Justice A. K. Mishra.
Perusing the records, the judge found that what is proved beyond reasonable doubt is that the five injuries found on the neck of the victim are caused by hard and blunt pressure and compression twist with strangulation and that the death of the victim is homicidal in nature and it is due to strangulation.
"The oral evidence of witnesses who saw the dead body and found blood stain on the private part of the deceased without corroboration from any scientific evidence, cannot be the basis to hold that hard and blunt foreign body was introduced to commit rape", said the judge, adding that it would be an act of paving way to their guesswork which has no place in criminal trial.
Being alive of the law that rape is now defined U/s.375 of I.P.C. inter alia that insertion of any object to any extent into the vagina of a woman is rape, the judge said in such a situation, it would be a prosecutorial overreach to draw an inference that rape has been committed particularly when Chemical examination report does not show any sign of spermatozoa to establish sexual assault.
"Suspicion however grave may be cannot take the place of proof. Because of this, what is revealed from the evidence of doctor and chemical examination report is that the death of deceased is homicidal in nature but there is no proof beyond reasonable doubt that victim has been subjected to sexual assault", observed the judge.
After culling out the circumstances, the judge came to the conclusion that the following three circumstances, i.e, (i) last seen theory, (ii) discovery of fact U/s.27 of the Evidence Act and (iii) conduct of accused as well as availability of blood stains in his wearing apparels, are established beyond reasonable doubt and unerringly point towards the guilt of the accused. The last seen theory gets corroboration from other two circumstances, i.e. recovery of facts and the conduct of accused having blood stained apparels. "Taking cumulatively, all the above circumstances form a chain so complete that there is no escape from the conclusion that the murder of victim on 20.3.2018 was committed by the accused and none else. The guilt of the accused is proved beyond reasonable doubt", concluded the judge.
As a result, the condemned prisoner was held guilty of the charge U/s.302 I.P.C. and his conviction by the Special Court on this count was upheld. However, the accused was held not guilty U/s.376(2)(i) and 376-A I.P.C. and U/s.6 of POCSO Act and the conviction to that extent was hereby annulled and he is acquitted therefrom.
"In the case in hand, the offence of lust is lost raising residual doubt upon the act by sexual assault. Having regards to the aggravating and mitigating circumstances, we are of the opinion that, the mitigating circumstances outweigh the aggravating factors. Conscience is shocked but there is an alternative available to the death sentence. The assumption of power to take one's breath away, in the facts proved would be stretching the direction 'in rarest in rare cases' beyond the limit of limitation so far prescribed by the precedents. The sentence 'Imprisonment for Life' will be just and proper. The death sentence awarded by the learned Trial Court is not to be confirmed. Instead it is to be modified to Imprisonment for Life for offence U/s.302 of I.P.C", concluded the judge.
Justice S.K. Mishra, in his separate but concurring opinion, found that the condemned prisoner is a 28 years old man belonging to low status of the society and a villager, who could not afford to engage a defence counsel on his own and was provided the assistance of an Advocate as State defence counsel. The offender does not have any criminal track record. The judge appreciated that there is neither any material on record to show that he has been charge-sheeted by the police for committing any other offences in the past nor he has been found guilty by any court of competent jurisdiction. He is a semi-literate rustic villager earning his livelihood as a labourer, who can barely write his name as signature on the accused statement. Moreover, the accused is only 28 years old at the time of trial. So, the judge was of the view that there is every chance of his being reformed by the correctional treatments meted out by the authorities in charge of the penitentiary.
"In this case, as already observed by my learned brother Dr. Justice A.K. Mishra, the offences under Sections 376 (2)(i) and 376-A of the IPC and Section 6 of the POCSO Act have not been established by the prosecution. There also appears to be nothing uncommon about the crime, which would render the sentence of imposition for life inadequate and calls for a death sentence...we are of the opinion that this is not a case where there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender", concluded the judge, holding that this is not a case which falls in the category of rarest of rare cases, where all other options, but the sentence of death, is foreclosed.