ASIF ALLI Vs. STATE OF ODISHA

JUDGEMENT

(1.) The reference under Sec. 366 of the Code of Criminal Procedure, 1973 has been submitted to this Court by the learned Adhoc Addl. Sessions Judge, F.T.S.C., POCSO, Jagatsinghpur (hereinafter 'the trial Court') in Special G.R. Case No.30 of 2014 for confirmation of death sentence imposed on Sk. Asif Alli @ Md. Asif Iqbal and Sk. Akil Alli (hereinafter 'the appellants') vide judgment and order dtd. 29/11/2022 and accordingly, DSREF No.01 of 2022 has been instituted. CRLA No.120 of 2023 has been filed by appellant Sk. Asif Alli @ Md. Asif Iqbal and CRLA No.121 of 2023 has been filed by appellant Sk. Akil Alli challenging the self-same judgment and order of conviction passed by the learned trial Court. The appellants along with Sk. Abid Alli faced trial in the trial Court for commission of offences punishable under Sec. 302/376-A/376-D read with sec. 120-B of the Indian Penal Code (hereinafter 'the I.P.C.') and Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter 'POCSO Act') on the accusation that on 21/8/2014 in between 2.00 p.m. to 11.00 p.m. in the house of Sk. Khairuddin at village Manu Mohalla under Tirtol police station in Jagatsinghpur district, they made criminal conspiracy and committed gang rape and aggravated penetrative sexual assault on the minor victim girl (hereinafter 'the deceased') and inflicted injuries which caused death of the deceased. The learned trial Court vide impugned judgment and order dtd. 29/11/2022 found the appellants guilty for the offences punishable under Sec. 302/376-A/376-D of the I.P.C. and Sec. 6 of the POCSO Act and awarded them death sentence for the offence under Sec. 302 of the I.P.C. so also sentenced each of them to undergo imprisonment for life for the offence under Sec. 376-A of the I.P.C., which shall mean imprisonment for the remainder of natural life, R.I. for a period of twenty years and to pay a fine of Rs.50,000.00 (rupees fifty thousand), in default, to undergo R.I. for a further period of one year for the offence under Sec. 376-D of the I.P.C., however, no separate sentence was awarded for the offence under Sec. 6 of the POCSO Act in view of the Sec. 42 of the said Act. The substantive sentences awarded to the appellants were directed to run concurrently. The accused Sk. Abid Alli, who faced trial along with the appellants, was found not guilty for the offences punishable under Sec. 302/376-A/376-D/120-B of the I.P.C. and Sec. 6 of the POCSO Act and accordingly, he was acquitted of all the charges. Since both the DSREF and the criminal appeals arise out of the same judgment, with the consent of learned counsel for both the parties, those were heard analogously and are disposed of by this common judgment. Prosecution Case:

(2.) The prosecution case, as per the first information report (hereinafter F.I.R.) (Ext.3) lodged by P.W.7 Tara Bibi, is that on 21/8/2014 at about 2.00 p.m., the deceased along with her cousin brother Sk. Farhan Alli (P.W.17) had been to a nearby shop of their house to purchase chocolates. As there was delay of the deceased in returning home, at about 3.00 p.m., P.W.7 and others searched for the deceased but failed to trace her out. Some co-villagers found the deceased on the Taza of one Sk. Khairuddin in an unconscious state and immediately they shifted her to Tendakuda Primary Health Centre, but the doctor advised them to take the deceased to S.C.B. Medical College and Hospital, Cuttack (hereafter 'S.C.B.M.C.H, Cuttack'). On being asked, the doctor told them that somebody had throttled her neck after committing rape on her. While being shifted to S.C.B.M.C.H, Cuttack, on the way the deceased died and therefore, P.W.7 and others returned back to the village carrying the dead body of the deceased. On enquiry, P.W.17 informed that the appellants gagged the mouth of the deceased and took her away by lifting her in arms while they were returning home after purchasing chocolates. P.W.7 suspected that both the appellants after committing rape on the deceased had strangulated her to death. On receipt of the written report from P.W.7 which was scribed by P.W.9 Siraj Ul Haque, Sri S.K. Panda, A.S.I. of Krushnanandapur outpost made Station Diary Entry No.300 dtd. 21/8/14 and sent the report to the Inspector in-charge of Tirtol police station for registration and accordingly, the Inspector in-charge of Tirtol police station, namely, Dayanidhi Nayak (P.W.27) registered Tirtol P.S. Case No.183 dtd. 21/8/2014 under Sec. 376-A/376(2)(f)(g) of the I.P.C. and Sec. 6 of the POCSO Act against the appellants at 11.45 p.m. and he himself took up the investigation of the case. During the course of investigation, the I.O. (P.W.27) visited the spot during the intervening night of 21/8/2014 and 22/8/2014, examined the witnesses and recorded their statements, sent requisition to the S.P., Jagatsinghpur for deputation of scientific team to the spot to assist him during investigation and for collection of material evidence. The local people apprehended the appellant Sk. Akil Alli and on the same night at about 3.30 a.m., the I.O. seized the wearing apparels of the appellant Sk. Akil Alli in presence of the witnesses as per seizure list Ext.6 and at about 3.45 a.m., he arrested the appellant Sk. Akil Alli and sent him to Medical Officer (P.W.28), C.H.C., Manijang for medical examination through escort party. On 22/8/2014 in the morning at about 6.50 a.m., the I.O. visited the place of occurrence and prepared the spot map vide Ext.20 and during spot visit, he found a quilt, inner garments, towel, plastic chappal, cigarette pups, glass bottles and Aska 40 liquor bottles, thumps up plastic bottles, a pair of golden ear rings at the spot. On the same day at about 7.20 a.m., he conducted inquest over the dead body of the deceased in presence of her family members and other witnesses and prepared inquest report (Ext.1). At about 8.20 a.m., he sent the dead body of the deceased to C.D.M.O., D.H.H., Jagatsinghpur through escort party for post mortem examination and opinion. On 22/8/2014 at about 1.30 p.m., the scientific team of S.F.S.L., Rasulgarh and staff of D.F.S.L., Jagatsinghpur arrived at the spot and inspected the spot. The I.O. examined the seizure witnesses and Sri Chunuram Murmu, S.O., S.F.S.L., Rasulgarh, Bhubaneswar and recorded their statements. During inspection of the spot by the Scientific Officer, three chance finger prints were detected from the bottles (Aska 40 bottles). The chance finger prints were developed with white powder and marked as Ext.A, B and Ext.B/1. At about 5.30 p.m., the I.O. (P.W.27) seized two sealed vials containing the sample pubic hair and sample semen of the appellant Sk. Akil Alli on production of escorting constable B.B. Singh collected during the medical examination of the appellant in presence of the witnesses as per seizure list (Ext.7). On the same day at about 7.30 p.m., the I.O. forwarded the appellant Sk. Akil Alli to the Court. On 23/8/2014, the I.O. made prayer before the Court for recording the statement of the informant (P.W.7) under Sec. 164 of Cr.P.C. and on 25/8/2014, as per the direction of S.P., Jagatsinghpur, a special team was formed to apprehend the accused persons and raid was conducted at different places. On 4/9/2014, the I.O. received the post mortem report from the A.D.M.O., D.H.H., Jagatsinghpur. On 5/9/2014 at about 3.00 p.m., the I.O. apprehended the accused Sk. Abid Alli and appellant Sk. Asif Alli at Bhubaneswar and seized one Nokia mobile phone during the personal search of appellant Sk. Asif Alli in presence of the witnesses. On the same day, the I.O. also seized one Honda Activa scooty bearing regd. no. OD 21 B 0693 and one Samsung Mobile handset during the personal search of accused Sk. Abid Alli and then, the I.O. brought both the accused Sk. Abid Alli and the appellant Sk. Asif Alli to Tirtol police station and seized the wearing apparels of the appellant Sk. Asif Alli in presence of the witnesses and prepared the seizure list marked as Ext.9 and sent the accused Sk. Abid Alli and appellant Sk. Asif Alli to M.O., C.H.C., Manijanga for medical examination and opinion. The I.O.received the spot visit report along with the photographs of the spot from the Scientific Officer, S.F.S.L. through post. On 6/9/2014, the I.O. received the medical examination report of the accused Sk. Abid Alli and appellant Sk. Asif Alli and at about 11.45 a.m., he arrested both of them and seized the biological exhibits on production of the escort officer, S.I. Govinda Majhi in presence of witnesses and prepared the seizure list Ext.11. On the same day at about 6.00 p.m., he forwarded the accused Sk. Abid Alli and the appellant Sk. Asif Alli to the Court. On 9/9/2014, the I.O. seized the school admission register of Kalinga Public School, Tala Barei, Krishnanandapur on production by P.W.14 Kalpana Beura, the Principal of the School in presence of witnesses and prepared the seizure list (Ext.13), in which the date of birth of the deceased was mentioned as 16/3/2008 and left the same in zima of P.W.14 by executing zimanama (Ext.14). On the same day at about 2.00 p.m., the I.O. seized the original birth certificate of the deceased on production by uncle of the deceased, namely, Ayub Ali @ Tuku and prepared the seizure list (Ext.10) and left the same in his zima executing zimanama (Ext.21). On 20/9/2014, the I.O. made prayer before the Court to send the seized exhibits to S.F.S.L., Rasulgarh for chemical examination and opinion vide Ext.24. On 25/9/2014, he also made prayer to the Court for passing necessary order for collection of finger print of the appellant Sk. Akil Alli from Sub-Jail, Jagatsinghpur and on the very day, as per the direction of the Court, the finger print was collected. The Scientific Officer, D.F.S.L. finger print and team also collected finger prints of the appellant Sk. Asif Alli and accused Sk. Abid Alli from the Sub-Jail, Jagatsinghpur after obtaining the order of the Court. The I.O. made requisition to the S.P., Jagatsinghpur to send the chance finger prints collected from Aska 40 bottles, which were transferred to a C.D. along with specimen ten digit finger print slips of the accused Sk. Abid Alli and the appellants to the Director, State Finger Print Bureau, Rasulgarh, Bhubaneswar for necessary comparison and opinion. On 1.20 p.m., the I.O. seized the O.P.D. ticket of the deceased on production by P.W.21 in presence of the witnesses and prepared the seizure list Ext.17. On completion of investigation, P.W.27 submitted charge sheet dtd. 21/10/2014 under Sec. 376-A/376-D/120-B of the I.P.C. and Sec. 6 of the POCSO Act against the accused Sk. Abid Alli, Sk. Asif Alli @ Md. Asif Iqbal (appellant in CRLA No.120 of 2023) and Sk. Akil Alli (appellant in CRLA No.121 of 2023) and one Sk. Abdul Karim Ali showing him as absconder before the learned S.D.J.M., Jagatsinghpur, which was forwarded to the learned Sessions Judge -cum- Special Judge, Jagatsinghpur on 22/8/2014 and the learned Special Judge, Jagatsinghpur took cognizance of offences under Sec. 376-A/376-D/120-B of the I.P.C. and Sec. 6 of the POCSO Act. Framing of Charge:

(3.) The learned trial Court framed charges as aforesaid against the appellants so also the accused Sk. Abid Alli on 17/11/2014 and since all of them refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their guilt. Prosecution Witnesses, Exhibits & Material Objects: