Purna Chandra Kusal vs State Of Orissa

CRIMINAL APPEAL NO. 1228 OF 2008

PURNA CHANDRA KUSAL ..... APPELLANT

VERSUS

STAT EOF ORISSA ..... RESPONDENT

O R D E R

1. This appeal by way of special leave is directed

against the judgment of the High Court of Orissa whereby

the appellant has been convicted for offence punishable

under Sections 302 and 376 of the Indian Penal Code. A

sentence of death had been awarded by the Sessions Court

and the same has been confirmed by the High Court by way

of a reference made under Section 366 of the Code of

Criminal Procedure.

2. As per the prosecution story, the appellant Purna

Chandra alias Chotu and P.W. 5, Brunda Jaiswal, the mother

of the deceased girl, were neighbours and were residing

in a basti near the railway line near Bondamunda Railway

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Station. At about 5:00p.m. on the 14th November, 2002,

P.W. 5 left her home for the local market to sell the

coal that she had collected from the railway line leaving

behind her son P.W. 10 and her deceased daughter who were

both playing with the appellant. P.W. 5 returned home

after fifteen or twenty minutes and found that her

daughter was missing. She along with P.W. 10 searched for

her but could not find her. She, however, received

information after a short while that the dead body of her

daughter was lying on the railway track. She rushed to

that side and found the dead body lying in between two

bogies. Information about the dead body was also conveyed

to the police and a police party soon reached the spot.

The body was also despatched for its post mortem and it

was found that the girl had been raped and murdered by

asphyxiation. A First Information Report was thereupon

drawn up on the basis of the inquiry conducted by the

police. During the course of the investigation, the

police arrested the appellant and on a statement made by

him under Section 27 of the Evidence Act, the clothes of

the victim which he had hidden after her rape and murder,

were recovered. Similarly on his disclosure, the clothes

that he had been wearing too were recovered. The trial

court relying on the evidence of P.W. 5 and P.W. 10 and

also the fact that the recoveries had been made at the

Crl.A. 1228 of 2008

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instance of the appellant convicted and sentenced him as

already mentioned above.

3. We have heard the learned counsel for the parties.

4. We find absolutely no reason to interfere with the

conviction of the appellant. In addition to the last seen

evidence of P.W. 5 and P.W. 10, we have the evidence of

the recoveries made at the instance of the appellant. The

clothes that the appellant and the deceased had been

wearing had also been taken into possession by the

investigating agency and were found to be stained with

human blood. We find therefore, that the last seen

evidence finds full corroboration from the recoveries.

5. We are, however, of the opinion that the death

sentence in the present case was not called for. The

appellant was a labourer living in a basti along side the

railway line and was, at the time of the incident, about

30 years of age. We also see that the entire evidence is

circumstantial in nature. Concededly, there is no

inflexible rule that a death sentence cannot be awarded in

a case resting on circumstantial evidence but courts are

as a matter of prudence, hesitant in awarding this

sentence, in such a situation. It is true that the crime

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was indeed a heinous one as the victim was only five years

of age and the daughter of P.W. 5 who was a neighbour of

the appellant. On a cumulative assessment of the facts,

we are of the opinion that the death sentence should be

commuted into one for life.

6. In this view of the matter, we dismiss the appeal

but commute the sentence of death to life imprisonment.

With this modification in the High Court's judgment, we

dismiss the appeal.

7. Fee of the Amicus is fixed at `7,000/-.

........................J [HARJIT SINGH BEDI]

........................J [GYAN SUDHA MISRA] NEW DELHI JULY 12, 2011.