Holding

The circumstantial evidence formed a complete, unbroken chain establishing the appellant's guilt beyond reasonable doubt, and the death penalty was appropriate as a 'rarest of rare' case.

Summary

The Supreme Court examined the appeal of Laxman Naik, who was convicted of raping and murdering his 7‑year‑old niece. The prosecution case was built entirely on circumstantial evidence, including eyewitnesses who saw the accused and victim together, the accused’s false statements about the victim’s whereabouts, medical evidence of sexual assault and fatal injuries, and blood‑stained clothing belonging to the accused recovered near the body. The appellant contended that the chain of circumstantial evidence was incomplete and that key witnesses were unreliable due to delayed statements and intoxication. The Court held that the circumstances formed a complete, unbroken chain that excluded any reasonable hypothesis of innocence and that the witnesses were credible. Applying the "rarest of rare" doctrine, the Court affirmed the death sentence and dismissed the appeal, noting that no separate sentence for the rape was necessary.

Issues considered

The adequacy of the circumstantial evidence to establish guilt beyond reasonable doubt
The reliability of witness statements, particularly those recorded after a delay and by an intoxicated witness
Whether the death penalty is warranted under the 'rarest of rare' doctrine for the offences of rape and murder

Legislation cited

Code of Criminal Procedures. 253(2), s. 354(3)
Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 1
Indian Penal Code, 1860s. 302, s. 376

Subjects

rapemurdercircumstantial evidencedeath penaltyrarest of rarechild victimsexual assaultconvictionsentencing

Judgment

A !AXMAN NAIK
v.
STATE OF ORISSA

FEBRUARY 22, 1994

B [DR. A.S. ANAND AND FAIZAN UDDIN, JJ.]

Indian Penal Code, 1860: Sections 302 and 376-Rape-Murdi~on
viction based on circumstantial evidence-Validity of

C Death Penalty-Pre-planned rape and murder of niece, a minor
girf-Held diabi/ical in conception and brutal in execution attracting death
penalty.

Indian Evidence Act, 1872: Section l-Circumstantial evidence-
Rape-Murde,......£vidence of last seen-Accuse.I absconding after the crime-
D Misrepresentations of accused as to whereabouts of deceased-Evasive replies
to questions during examination-Medical evidence relating to injurie.s on the
deceased-Recovery and seizure of i11crimi11ati11 g articles-Held circumstance.s
relied on form a complete chain of evidence against the accused leading to
irresistible conclusion that he was the perpetrator of crime.
E . The appellant was prosecuted under sections 376 and 302 of the
Indian Pena.I Code, 1860 for committing rape and murder of his niece,
a minor girl aged about 7 years. 11te prosecution case, based entirely on
clreilmstantial evidence, was that on 16.2.90, the appellant along with his
mother; PW-3 and deceased had gone to the house of his relative, PW-2,
F to attend obsequies ceremony. During the observance of the ceremony
on 17.2.90, PW-8, father-in-law of PW-2, not only beard the appellant
commanding the deceased to accompany him back to their village but
also shortly thereafter witnessed him pr0<:eedlng towards his village
with the deceased and thereafter conspicuously noticed the absence of
G the appellant and deceased from the function. l>W-1 had last seen the
appellant and the deceased together In the jungle both proceeding
towards their village. In the evening of 17.2.90, the appellant went back
to his village and falsely told his brother, PW-4, that the deceased and
his mother were at the house of PW-2. In the same evening, he returned •
H back to the house of PW-2 and on being questioned by bis mother as to
94
LAXMANNAIK v. STATEOFORISSA 95

. the whereabouts of the deceased, he made a false representation to his A
mother also that the deceased had reached her village. Next morning
when the appellant's mother was beading towards her village she noticed
the appellant roaming about near the jungle and on being questioned
by her mother, the accused again misrepresented her that the deceased
had rea~hed home. But when PW-3 reached her village she did not find B

. the deceased in the house. Thereafter when search of the deceased was
made, her dead body was I mod lying in jungle with. a serious bleeding
injury in her private part. A blood stained underwear belonging to the
appellant was zlso found near the dead body which was emphatically
identified by the appellant's mother and brother as on belonging to the C
appellant. Chemical and Serological examination established the
presence of blood on the frock and underwear of the deceased as well
as that of accused. PW·S who had gone to the jungle with the search
party repo11ed the indlcdent to his son, PW-6, who gave a written report
of the recovery of the dead body. PW-6 deposed that he guarded the D
body in the jungle after its recovery till arrival of the police and that In
his presence the police prepared the seizure memo. The appellant
abs~onded after occurrence and was apprehended after about 14 month.
During his examination under section 313 Cr.P.C. be gave evasive replies
to some of the questions. The autopsy report confirmed forcible sexual
assault having been made on the deceased just before death and the E
time of death given by the doctor was also corresponding to, at or about
the time of occurrence.

Relying on the circumstantial evidence viz.. (I) the evidence of the
last seen of accused with deceased; (ii) misrepresentation and intentional F
false statement of the appellant as to the whereabouts af the deceased;
(ill) medical evidence relating to the injuries on the deceased; (Iv)
discovery and seizure of incriminating articles; (v) absconding of accused
after the occurrence and his el'asive replies to question during his
examiuation under section 313 Cr.P.C., the trial court held that the guilt G
of the appellant was established and accordingly sentenced him to
death. Ou appeal, the High Court confirmed the death sentence.

In appeal to this Court, it was contended on behalf of the appellant
that (I) the circumstantial evidence relied on by the prosecution do not H
96 SUPREME COURT REPORTS [1994) 2 S.C.R.

A provide a complete chain to bring !tome the guilt against the appellant;
(Ii) PW·l who had last seen the ap1iellant and the deceased together did
-\·
not disc:lose this fact to any one and that his case diary statement was
recorded after about a month and 11s such his evldeilco was not reliable;
and (iii) the evidence of PW-8 cammot be relied on because on the day
B or occurrence, he being nnder the Influence of liquor could have hardly
taken notice of the alleged call said to have ·been given by the appellant
to the deceased to follow him to th~ village or to see tbat both of them
actually proceeded towards their village.
(
)
.
Dismissing the appeal, this Court
c
HELD: 1. The standard of proof required to convict a person on
circumslantial evidence Is that the circumstances relied upon In support
of the conviction must be fully established and the chain of evidence
furnished by those circumstances must be so compl;ete as not to leave
D any reasonable ground for a conclu1ilon consistent with the Innocence of
the accused. The circumstances from which the conclusion of the gullt
Is to be· drawn have not only to be fully established but also that all the '
'r

circumstances so established should be of a conclusive nature and
consistent only with the hypothesis of the guilt of the accused and should
E not be capable of being explained by any other hypothesis, except the
guilt of the accused and all the circumstances cumulatively taken
together should lead to the only lrreslstable conclnslon that the accused
alone Is the perpetrator of the crime. (102·G·B, 103-A)

Sharad v. State of Maharashtra, A.I.R. (1984) S.C. 1622 and Dhanan· ~
F jay Chatterjee v. State of West Benga(, (1994) 1 J.T. 33 S.C., referred to. }

2. From the evidence discussed It Is satisfactorily and conclusively
proved that all the links In the chain are complete and do not su!Ter
from any infirmity. The clrcumstanc:es found to be established against
G the appellant form a complete chain of evidence as not to leave any
1usonable ground for a conclusion consistent with the hypethesls of the
Innocence of the appeUnt but on the contrary the sa'l'e are of exclusive
nature consistent only with the hyp~thesls of the guilt of the appellant '
~.

and conclusively lead to lrreslstable c:oncluslon that It was the appellant
H and he alone who had committed murder of the girl after I
subjecting her
IAXMANNAJK v. STATEOFORISSA 97

to forcible sexual intercourse, (111-C-DJ A
3. The witnesses PW-1, PW-2 and PW-8 are all independent
witnesses having no axe to grind against the appellant as to make false
statement to implicate the appellant. Their version is truthfi11 and
reliable. (105-DJ
B
4. On scrutiny o' the evidence of PW-8 it Is evident that he.
emphatically asserted that the appellant and the deceased were seen
) moving towards their village which he had seen from his own eyes and
<
that there were many other persons present when the accused had given
the call the deceased to accompany him to the village. Therefore, there C
Is nothing In the statement of this witness to suggest that be bad lost
all senses and was not capable of witnessing what was going on or
happening around him (104-A, BJ

S. PW-8 was not confronted with his case diary statement at all D
nor there is any material before this Court to accept the contention that
he did not disclose to police that he had seen the appellant and the
deceased moving towards their village. [104-DJ

6. It Is true that PW·l deposed in crosss-examlnation that he was E
examined by the police one month after the occurrence and till then he
had not disclosed this fact. But this statement appears to be due to the
failure of his memory as. he was examined after about two years from
the date of Incident. Therefore, he faultered as to the date and time when
his statement was recorded by the police. PW-1 Is an Illiterate person
and an aboriginal belonging to Adivasl tribe and, therefore, ls not F
expected to remember the date and time with that exactitude as Is
expected from a literate and an average person. (104-H, lOS·A, CJ

7. Having regard to the principles with regard to the imposition
of the extreme penalty it may be noticed that there are absolutely no G
mitigating circumstances In the present case. On the contrary the facts
of the case disclose only aggravating circumstances against the appel·
lanL The evidence on record is Indicative of the fact as to how
diabolically he had conceived of his plan and brutally executed it. Such
a· calculated, cold blooded and brutal murder of a girl of a very tender H
98 SUPREME ODURTREPORTS [1994) 2S.C.R.

A age after committing rape on her would undoubte!Dy fall in the category
of rarest of the rare cases attracting no punishment other than the
capital punishment. [111-H, 112·A, GI

Bachan Singh v. State of Punjab, [1980) 2 S.C.C. 684, referred to.

B CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
407 of 1992.

From the Judgment and Order dated 115.92 of the Orissa High (
Court in Death reference No. 1/92 and Jail Cr!. A. No.13! of 1992.
c Uma Datta, Rajiv Sharma and Ms. Neelam for the Appellant.

U.R. Lalit and A.K. Panda for the Respondent.

The Judgment of the Courlt was delivered by
D
FAIZAN UDDIN, J. The yresent case before us reveals a sordid
story which took place some times in the afternoon of 17th February, 1990 in
which the alleged sexual assault followed by brutal and merciless murder
. ' '
by the destardly and monstrous act of abhorrent nature is said to have
been committed' by the appellant herein who is none else but an agnate
E
and paternal uncle of the deceas1:d victim Nitma, a girl of the tender age
of 7 years who fell a Pray of his lust which sends shocking waves not only
to the judicial conscience but to 1:veryone having slightest sense of human
values and particularly to the blood relations and the society at large.

F The appellant Laxman Naik was charged and tried under Sections ;,.

376 and 302 of the Penal Code for committing rape and soon after murder
of the victim inside the forest known as Cbhotsima Jungle, situated on
'
the way between the villages Patkadihi and Tangarjoda. Learned Sessions
Judge, Mayurbhanj, Baripada, relying on the circumstantial evidence
G found to be established against the appellant, cor.victed him for offence
under Section 376 as well as under Section 302 of the Penal Code and
having regard lo the peculiar facts and circumstances of the present case
found it lo be rarest of the rare cases and, therefore sentenced him to
death. However, no separate sentence· for the offence nuder Sction 376
H of the Penal Code has been awarded. The learned Sessions Judge made
LAXMANNAIK v. STATEOFORISSA[FAIZANUDDIN,J.] 99

a reference to the High Court of Orissa for confirmation of the death p
Sentence. The appellant Laxman Naik also preferred an appeal in the
High Court of Orissa challenging his conviction and sentence as aforesaid.
After a careful and close scrutiny of the evidence on record the High
Court dismissed the appellant's appeal and confirmed the death sentence
awarded to him. This appeal, therefore, has been filed before this Court I
on being granted special leave.

Briefly stated the prosecution case as it turns out from the evidence
on record was that Rema Naik PW-2 resident of village Patkadihi had
performed funeral rites at his house on 16.2.90 in which he had invited C
his relatives and other villagers. Smt. Nitma Naik, PW-3, the mother of
the present appellant is the sister of the father of Rema Naik, PW-2. Smt.
Nitma Naik, PW-3 her son the appellant Laxman and the deceased Nitma
daughter of elder brother of the appellant, being close relatives of Rema
Naik, also went from their village Tangarjoda to the house of Rema Naik :C
at village Patkadihi to attend the said ceremony. It is said that in the
afternoon of 17.2.90 when all the relatives assembled in the ceremony
including Rema Naik, PW-2 were busy in the observance of the
ceremony, the appellant commanded the deceased to accompany him
back to their village and the deceased followed him in obedience of his E
command. Around 4 PM the appellant and the deceased were found to
be absent from function. Shortly thereafter Genada alias Ganga Ram,
PW'l, resident of village Patkadihi saw the appellant and the deceased
near Chhotsima jungle, going towards their village Tangarjoda. Sometimes
later the appellant alone reached his house in village Tangarjoda where F
on being asked about the deceased by this elder brother Hindu Naik,
PW-4, the father of the deceased, the appellant is said to have told him
that the mother and the deceased Nitma were at the house of Rema Naik
in village Patkadihi. In the same evening the appellant returned back to
village Patkadihi and on being questioned by his mother Nitma Naik, G
PW-3 as to the whereabouts of the deceased, the appellant told her that
she had safely reached to her village Tangarjoda. The next morning when
the appellant's mother Nitma Naik was heading towards her village
Tangarjoda, she notieed the appellant roaming about near Chhotsima
jungle. On being asked again as to the whereabouts of the deceased, the H
100 SUPREME COURT REPORTS [1994] 2S.C.R.

A appellant told to bis mother that she was there in village Tangarjoda. But
to her utter surprise when Nitma Naik, PW 3, the mother of the appellant
reached her village, Tangarjoda she did not find the deceased there and,
therefore, she rushed back to village Patkadihi where she told to Rema
Najk, PW 2 and other villagers that the deceased was missing. They
B therefore including Hindu Naik, PW 4, the father of the deceased
procieded towards Chhotsima jungle in search of the deceased. The
searching party' found the deceased .Jyiug in a lonely place in Chhotsima
jungle in revealing circumstances. The said party fo1lnd the torn wearing
apparel (under wear) of the appellant near the dead body of ~he victim.
C There were marks of violence over the dead body of the victim and
bleeding injury in her private part. A ribbon belonging to the deceased
and some tamarinds were also found lying near her dead body.

A ward member of village Patkadihi, Bhagala Majhi, PW 5 who
D had also gone to the jungle with the search party, dictated a report Exhibit
1 to his son Apna Majhi, PW 7 which was handed over to Rasananda
Rout, PW 9, Sub-Inspector of Police, Jharadihi Out-Post under Tirang
Police Station. He entered the said report in the station diary and sent
the report to the Officer Incharge of the Police Station with bis endor- '
sement and took up the investigatio:n. The A.S.I. reached the. spot at about
E 1.30 PM same day and prepared inquest report Exh, 3. He seized the
frock, under wear and ribbon belonging to the deceased and some
tamarinds under Exh. 2 He also seized a sample of blood smeared earth

f from tfae place of occurrence Exh. 6. He also recorded the statement of
some of the witnesses.

Dr. Pushp Lata, PW 11 performed an autopsy over the dead body
of the deceased on 20.2.90 who as per her post-mortem report Exh. 11
found the following injuries on hew :-

G 1. Abrasion over the middle: of back and over fifth lumber vertebra.

2. Abrasions were noticed on the left index finger, back of fore-
arm and right middle finger of right hand.
\.

H 3. Lacerated wound ll!J" iiJ, the vagina extending towards rectum.
LAXMANNAIK v. STATEOFORISSA[FAIZANUDDIN,J.] 101

4. Bruises over naclc 2 C.M. x 1 C.M. over sternomestoid muscles A
on right and left side, 2' below the angle of. the malldible.

On dissecting the underlines tissues of the neck, the doctor noticed
extravasation of blood into the subseutaneous tissues as well as in the
underlying stenomastoid muscles. The larynx and trachea were found to B
be congested containing frothy mucous. Bloody froths were coming out
from the mouth and nostrils.

All the injuries detailed above, in the opinion of the doctor "ere
homicidal and anti-mortem in nature and the cause of death was due to
asphyxia by throttling. The. external and corresponding internal injuries C
caused to the neclc by strangulation were found to be sufficient in the
ordinary course of nature to cause the death of the victim. The time of
death as given out by the doctor was also corresponding to, at or ahout
the time of occurrence. Further the doctor gave her firm opinion about
the forcible sexual assault having been made on the deceased just before D
her death. Veginal smear of the deceased was lifted which indicated
presence of red blood corpuscles.

The frock and under-wear of the deceased as well as under-wear
belonging .to the appellant seized from near the place of occurrence were E
sent to the Chemical Examiner who as per his report found blood on the
iloderwear belonging to the appellant and human blood on the frock and
under-wear belonging to the deceased. After the occurrence the appellant
had absconded and could be apprehended only on 5.4.91 after about 14
months. The appellant in his examination under Section 313 of the Code F
of Criminial Procedure denied the allegations and gave evasive replies to
some of the questions, while some of the facts were admitted by him
which shali be discussed by us some times later in this judgment. The
appellant, ho\vever; adduced no evidence in his defence. ·

There is no ocular version of the incident and the prosecution G
entirely based its case on circumstantial evidence. Learned counsel. for
the appellant vigorously urged before us that the circumstances· relied on
by the prosecution have not been satisfactorily established and that in any
event the circumst~ces said to be established against the appellant 'Clo
not provide a complete chain to bring home the guilt against the H
102 SUPREME COURT REPORTS [1994] 2 S.C.R.

A applellant. He vehemently submitted that Ganga Naik, PW 1 who is said
to have last seen the appellant and the deceased together did not
disclose this fact to any one and that his case diary statement was
recorded after about a month and as such the evidence of this witness
should not be accepted as c:redible and that though he is also witness to
B the inquest report but this fact is conspicuously missing in the inquset
report that he had last seen the deceased and the appellant together. I!
was, therefore, submitted that no value can be attached to the evidene1~
of Ganga Naik, PW 1 Learned counsel for the appellant further assailed
the evidence of Jagan Nath Naik, PW 8, by contending that he along with
c others had consumed liquoir right from the morning and was badly under
the influence of liquor an<~ therefore, he could have hardly taken any
notice of the alleged call said to have been given by the appellant to the·
deceased to follow him to the village or to see that both of them actually
proceeded towards their village. He also submitted that this fact was n<>t
D disclosed by the witness to the police in his case diary statement. Learne.d
counsel for the appellant further submitted that the mere fact that the
appellant was out from his house for a few days as usual cannot be usc:d
as a link to the circumstances leading to his guilt and that in any case
the said fact cannot be used as a circumstance against the appellant as
E no question in this behalf was put to the appellant during the course of
. his examination under Section 313 of the Code of Criminal Procedure.

Learned counsel for the appellant also submitted that since the
appellant used to leave the house very often for days together and
therefore, his moiher PW 3 and brother PW 4 were annoyed with him
F and it was for this reason that both of tlieni gave false statement against
the appellant.

The standard .of proof required to convict a person on circumstan-
tial evidence is now well established by a s~ries of decisions of this Court.
G According to that standard the circumstances relied upon in support of
the conviction must be fully established and the chain of evidence
furnished by those circumstances must be so complete as not to lea\-e
any reasonable ground for a conclusion consistant with the innocence of
the accused. The circumstances from which the conclusion of tlie guilt is
H to be drawn have .not only to be fully established
I
but also that all the
)

LAXMANNAIK v. STATEOFORISSA(FAIZANUDDIN,J.) 103

circumstances so established should, be of a conclusive nature . and A
tonsistent only with the hypothesis of lhe guilt of the accused and should
not be capable of being explained by any other hypothesis, exept the guilt
of lhe accused and when all the circumstances cumulatively taken
togelher should lead to the only irresistable conclusion that the accused
alone is lhe perpetrator of the crime. To quote a few decisions of this B
Court. iD. this regard a reference may be readily made to the case of
Sharad v. Stafe of Maharashtra, AIR (1984) SC 1622 and Dhananjay
Chatterjee v. Stale of West Bengal, (1994) 1 IT 33 SC.

Having regard to these principles enunciated with regard to the C
proof of guilt by circumstantial evidena" we shall now examine the various
circumstances said to lhe appearing against the appellant and at the same
time examine the contentions advanced by the learned coulisel for the
appellant referred to above.

Evidence of last Seen D

It is an admitted fact that Rema Naik, PW 2 had celebrated
obsequises ceremony at his House in village Patkadihi on 16.2.90 in which
amongst olher relatives, the appellant himself along with his molher Smt. E
Nitma Naik, PW 3 and her grand-daughter, the deceased Nitma i.e. the
niece of the appellant had also gone to the house of Rema Naik &om
lheir village for participation in the said ceremony. Jagannath Naik, PW
8 who is father-in-law of Rema Naik, PW 2 and resid~nt of lhe same
village Patlradihi had also attended the said ceremony. Jagannath Naik
deposed that in the afternoon of Saturday - the day of occurence, while F
he was sitting in the varandah of the house of Rema Naik he heard the
appellant laying to the deceased to accompany him to their village and
shortly thereafter he witnessed the appellant proceeding towards his
village with the deceased. The witness, Jagannath admitted in cross-ex-
amination that on Saturaday, the day of occurence, he had also taken G
Handia (Liquor) right from the morning a:id that he was badly influenced
by that intoxicant. His evidence w.is, theref~re, sought to be assailed on
the ground that being under the influence of liquor he would have. hardly
taken any notice of the allegt:d call having been made by the appellant
to the deceased or would have in fact remembered that he had seen the H
1-04 SUPREME COURT REPORTS [1994] 2 S.C.R.

A appellant and the deceased actually going towards their village. But on
scrutiny of the evidence of Jagannath Naik we filtd that there is no merit
in .the aforesaid submission for the reason that he emphatically asserted
that he can definitely say that the appellant Laxman and the deceased
Nilma were seen moving towards their village which he had seen from
B his own eyes. He also submitted that there were many other persons
present when the accused had given the call to deceased Nitma to
accompany him to the village. We do 'not find any thing in. the statement
of this witness to suggest that he had lost all senses and was not capable
of witnessing what was going on or happening around him. Learned
C counsel for the appellant further challenged the evidence of this witness
Jagannath by contending that he had not disclosed to the police in his
case diary statememt that he had seen the appellant Laxman proceeding
towards his village with the de.ceased. But this argument is liable to be
dismissed for the simple reason that the witness was noi confronted with
D his. case diary statement at all nor there is any material before us to
accept the contention that the witness had not disclosed this fact to the
police particularly when the witness with an emphatic denial stated it is
not a fact that he did not .disclose to the police that he had seen the
appellant and the deceased moving towards their village.

E Apart from the evidene<: of Jagannath Naik, PW 8 there is yet
evidence of Rema Naik, PW :Z deposed that the appellant, his mother
and niece (the deceased) had also attended the ceremm1y and that the
appellant Laxman and the dec:eased were found to be absent from the
function. From the evidence discussed above it clearly turns out that the
F appellant had left the village Patkadihi along with the deceased. Further
Geneda alias Ganga Ram Naik, PW 1 resident of village Patkadihi
,
deposed that on the date of occurence while he was returning to his
village at about 4.00 P.M. he saw the appellant and the deceased near
Chhotsinta jungle and both were heading towards their village. Learned
G cousel for the appellant sought to discard the evidence of this witness by
contending that be did not dis<:lose this fact to anyone till his case diary
statement was recorded by the police after about a month. We are unable
to persuade ourselves to cone<:de to the submission. It is true tliat the
witness Ganga Ram Naik deposed in cross-examination that be was
H
LAXMANNAIK v. STATEOFORISSA[FAIZANUbDIN,J.] 105

examined by the police one month after the occurence and till then he A
had not disclosed this fact. But this statement appears to be due to the
failure of his memory as the incident had occurred on 17.2.90 while he
was examined on 26.11.91 after about two years, ther~fo/e 1 • h!l faultered
as to the date and time when his statement was recorded by the police.
The view that we are taking of the evidence of this witness is supported B
by the evidence of the Investigating Offjcef, Niranjan Parede, PW 10 who
deposed that he· had examin~ the. Wiiriess on 21:2.90 after the dead body
of the deceased was recoy~red' from the forest. It may also be pointed
out that the witness Ganga Naik, PW 1 is an illiterate person and an
aboriginal belonging to Adivasi tribe ans, therefore, is not expected to C
remember the date and time with that exactif.i.i.le ~s is expected from a
literate and an average person. In tfu.< view of the matter it cannot be
accepted that the police recorded the statement of PW 1 after about a
month from the date of occurence, The witnesses Ganga Ram Naik, PW
1, Rema Nailc, PW 2 and Jagannath Naik, PW 8 are all independent D
witnesses having no axe to grind ~inst the appellant so as to make false
statement to implicate the appellant. We accept their version to be
truthful and reliable. It is thus established that 011 the day of occun:ence
the appellant had commanded the de;:~·:ed to accompany him to the
village and the appellant and the deceased had actually both proceeded
towards their village and while on their way the appellant and the E
deceased both were last seen together in the Chhotsima jungle.

Misrepresentation and intentional false statement of the appellant as to the
whereabout of the deceased Nilma :
F
Hindu J:'liak, PW 4 is the real elder brother of the appellant and
father of the deceased Nitma who did not go to attend the ceremony but
bad stayed back in the house at village Tangarjoda. Hindu Naik deposed
that the deceased along with the appellant and bis mother had gone to
village Patkadihi to the house of Rema Naik to attend the 'Sudhi' G
ceremony on Friday and stayed there for the night. On the following day
i.e. on Saturady evening the appellant came back to the house at village
Tangarjoda .. Hindu Naik enquired ftom the appellant about the deceased .
and the mother Smt. Nltm~ "!ailc and' the appellant told him that they
were staying at Patkadihi in the house of Rema Naik. Hindu Nailc father H
106 SUPREME COURT REPORTS (1994) 2 S.C.R.

oi..of the deceased deposed that the next morning, that is, on Sunday he did
not lind the appellant in the house and at about 5.00 P.M. that day bis
mother Nitma also came to the house from whom he enquired about bis
deceased daughter. His mother told him that the appellant had reported
·to her that the deceased had already returned to the house. But Hindu
IJ Naik informed bis mother that the de1i:eased had not come to the house
at all. After this dialogue Hindu Naik along with bis mother Nitma Naik,
PW 3 set out in ·search of the deceased but she could not be traced out.
Next day i.e. on Monday they again went out in search of the deceased +
and reached the village Patkadibi where bis mother told him that bis
~ daughter has been killed in Sima Dungri forest. If we look to the evidence·
of Nitma, PW 3, the mother of the appellant, we find that she deposed
that in the afternoon of the date of occurrence she searched for the
accused and the deceased in the house: of Rema Naik but they could not
be found there. In the morning of Sllllday she left village Patkadibi for
) her village Tangarjoda and wlule she was heading towards her village she
noticed the presence of appellant in the Chhotsima J1111gle. Nitma Naik,
PW 3, the mother of the appellant q1iestioned the appellant about the
whereabolJts of th.e deceased to which the appellant replied that tlie '
deceased had already reached to her village Tangarjoda long before. On
being so informed Smt. Nitma Naik rushed back to Patkadihi again and
~ the appellant preferred to remain near about the place of occurence. But
ve1y soon thereafter the appellant also> returned back to Patkadihi. The
presence of the appellant near about tbe place of occurence and absence
of the deceased in the house in villag•e Tangarjoda roused suspicion in
'
the mind of the lady and, therefore, she again proceeded to her village
< Tangarjoda where she did not fmd the deceased. She went back to village
Patkadibi along with her elder son Hindu Naik, PW 4 and as she
entertained serious suspicion on acco~mt of misrepresentation made by·
the appellant about the whereabouts of the deceased, she along with
several villagers of village Patkadihi set out in search of the deceased and
~

J found the dead body lying in the Chhotsima jungle.

Evidence relating to injuries on the deceased :

The search party which discovered the dead body of the deceased
-I in jungle, noticed that her clothes were i;oaked with blood and there were
LAXMANNAIK v. STATEOFORISSA[FAIZANUDOIN,J.] 107

multiple in1unes on the person of the deceased as are described by Dr. A
.i.
Pushp Lata PW 11 in her post-mortem report Ext. 11 as well as in her
statement made in the Court. There was abrasion on back and fifth
lumber vertebra, as well as on left index linger, back of fore-arm, right
middle finger. There was lacerated wound in the vagina extending towards
rectum _and bruises over nack, right and left stemomestoid muscles. On B
dissecting the underlined tissues of the neck, the doctor noticed extravasa-
tion of blood into subseutaneous tissues as well as in the underlying
' sternomastoid muscles. The larynx and trachea were congested containing
frothy mucous. The bloody froths were coming out from the mouth and
nostrils. This evidence eloqintly speaks that the innocent, helpless soul
was first subjected to brutal and forcible sexual intercourse and then
c
mercilessly done to death by throatting so that there remains no direct
evidence against the culprit.

Discovery and Seizure of incriminating altic/es:
D
\
Smt. Nitma PW 3, the mother of the appellant as well as Hindu
' Naik, PW 4, the brother of the appellant who were amongst those who
searched out the dead body in the jungle, have stated that one underwear
stained with blood belonging to the appellant was lying near the dead
body. A ribbon belonging to the deceased and some tamarinds were also E
found lying by the side of the dead body. They also deposed that the
wearing apparels of the deceased were completely smeared with blood.

~
This brings us to the evidence regarding seizure of the aforesaid
~ articles found near the dead body and the clothes of the deceased. Y.aru F
Maj hi, PW 6, is the son of Bhagala Majhi, PW 5, a ward member, who
had given the written report nf the recovery of the dead body. Karu
Majhi, PW 6, deposed that he wa.< guarding the dead body in the jungle
after its recovery till the arrival of police at about 4.00 P.M. He deposed
that in his presence the police had seized one under-wear, stained with G
blood, a piece of nbbon and some tamarinds which were lying by the
side of dead hody. Seizure Memo was read over and contents thereof
· were explained to him and then he put his thumb i:npression on the
seizure memo as a witness. The underwear belonging to the appellant
and the wearing apparels of the deceased seized from the place of H
108 SUPREME COURT REPORTS [1994) 2 S.C.R.

A occurence were sent for the chemical examination and also to ·the
serologist and the experts as per their reports Ext. 9 and 10 found that
they were stained with blood. Though the appellant disowned the blood
stained underwear found near the dead body at the place of occurence
but the same has been identific:d by none else but by the mother of the
B appellant, Smt. Nitma Naik, PW 3 as well as by Hindu Baik, PW 4, the
elder brother of the appellant. Both of them categorically stated that the
said underwear belonged to the appellant.

Learned counsel for the appellant, however, urged that mother and
C brother of the appellant (PW 3 and PW 4) were not happy with the
appellant because most often he used to disappear from the house for
days together and it was for .this reason that they made the statement
against the appellant and as such no weight sh(>uld be attached to their
testimony. Be that as it may, it is beyond comprehension to think that a
real mother and real brother would ever think of falsely implicating the
D appellant in a heinous crime like t!lls before us only because. the appellant
was in habit of disappearing from the town very frequently. The argument
simply deserves to be rejected as without any '1'erit.

Here, we may also refer to the examination of the accused under
E Section 313 of the Code of Orimnal Procedure, wherein he denied the
allegations but at the same time admitted some of the facts and gave
evasive replies to some of the questions. The relevant questions put to
the appellant and answers given thereto by him may be reproduced with
advantage as follows :-
F •
>
Que.2.: It transpires from the evidence of the PWs that you, your mother,
deceased Nitma had gone to the hollS\l of Rema Naik of village
Patkadihi on 16.2.90 to attend the obsequies ceremony observed
by him in his house. What have you got to say?
G Ans. Yes.

Que.4 It transpires fro.m the evidence of PW 2 and others that on 17.2.90
at 4.00 P.M. you and deceased Nitma were found absent from
the house of PW 2 at Patkadihi and on search they could not
H tirace you or Nitma. 1Nhat have you got to say?
LAXMANNAIK v. STATEOFORISSA(FAIZANUDDIN,J.] lO'J

Ans. I had gone to my house, Nitma did not go with me. A
Que5. It transpires from the evidence of PW 1 that he had seen you
proceeding towards your village with deceased at Chhotsima
Pahada (Dungri).

What have you got to say? B
Ans. I do'not know
.•.
Que.6 It transpires from the evidence of your mother that on the
occurrence day evening came alone to the house of PW 2 and
when she asked about the whereabout of Nitma, you falsely told c
her that Nitma is at your house. What have you got to say?

Ans. I do not remember. I cannot say.

I Que.19. The cumulative effect of all the evidence adduced in the case
suggests that you intentionally committed the murder of the D
\ I deceased by strabgulation after committing sexual intercourse
'" with her and intentionally gave false information to your mother
and brother by giving them to understand that Nitma had gone
to village Tangarjoda and stays back at Patkadihi respectively on
the date of occurrence. What have you got to say? E
Ans. Yes, I have told lie to my mother. I do not remember, what I
have told to my brother.

A plain reading of question No. 5 with regard to the evidence of
• Ganga Ram Naik, PW 1 that he had seen him in Chhotsima Dungri F
along with the deceased proccding towards his village, will go to show
that the appellant while answering the same had no courage lo squarely
~.
deny it but gave an evasive reply that "I do not know". Similarly, in reply
to question No. 6 with reference to the evidence of his mother than when
she asked him about the whereabout of Nitma, the appellaiit falsely told G
to her mother that Nitma was at the house, the appellant again did not
deny the same but gave an evasive reply by saying that 'I donot
~ remember'. 'I cannot say'. But it can be significantly pointed out that in
answer to question No. 19 to the fact that he had intentionally committed
the murder of the deceased after subjecting her to sexual intercourse, he H
H.O SUPREME COURT REPORTS (1994) 2 S.C.lt.

~ gave false information to his mother and brother, the appellant admitted
by saying "Yes I have tolds lie to my mother. I do not remember, what
I have told to my brother".

The discovery of appellai;£'s w1de1WP,ar stained with blood lying
near the dead body and a false representation made by the appellant
provides a link and may be called in aid to lend assurance to the Court.
These circumstances directly and •nbstantially ooint the finger at the
accusei ·· appellant to be the perpetrator of the ;:rime because it is
unthinkable that the real mother of the appellant and his real brother
, wi>uld endeamur to ·falsely implicating the appellant in such a heinous
crll:te.

Thus, on a close and critical examination of the evidence ~n re::ord,
the circumstances which are fully established against the appellant are
~ that in the afternoon on 17th February, 1990, Jagannath Naik, PW 8 heard
the appellant c6mmanding the deceased to accompany him to their village
Tangarjoda, and that on 17th Feburary, 1990, itself at about 4.00 P.M.
Rema Naik, PW 2 noticed the co!!Spkuous. absence of .the appellant and
the deceesed from the function at his house. Immediately before the
occurrence on 17.2.90 at about 4.00 P.M. Ganga Ram Naik, PW 1 had.
last seen the appellant and the deceased together in Chhotsima jungle
both p1oceeding towards their village. In the evening of 17.2.90 the
appellant went back to his village Tangarjoda and falsely told to his
brother Hindu Naik, PW 4 that tl:.e deceased and ills mother Nitma Naik,
PW 3 were at Patkadihi at the house of Rema Nak. The appellant made
a false representation to his mother, Nitnia Nlik also that the deceased
•
had reached back to her village T~mgarjoda which the appellant illmself
admitted in his s?atement under S1~ction 313, Criminal Procedure Code
that he had given false information to his mother. In the morning of
Saturday the appellant was found by his m<>ther Nitma Naik, PW 3 moving
' about near the said forest and agaim gave a false information to her that
deceased had already arrived at her village Tangarjoda. But when Smt.
Nit.ma Naik, PW 3 the mother of the appellant' reacl:ed her village
Tangatjoda she did not find the de.ceased in the ho.use and the appellant
also escaped from the house soon thereafter. Thereafter on Monday when
a searching of the de.ceased was made, her dead body was found lying
lAXMAN NAIK v. STATE OF ORISSA [FAIZAN UDDIN,}.] 111

in Chhotsima jungle. The searching party found a serious bleeding injury f
in her private part and her clothes were found smeared with blood,
eloquently speaking about the monstrous sexual assault made on her and
lastly the presence of blood stained underwear blonging to the appellant
near the dead body which was seize and identified as one belonging to
the appellant and the chemical and serological examination established B
the presence of blood on the same.

Form the evidence discussed above it is satisfactorily and con-
clusively proved that all the links in the chain are complete and do not
suffer from any infirmity.
(I

The afore-mentioned circumstances found to be established against
the appellant form a complete chain of evidence as not to leave any
reasonable ground for a conclusion consistent with the hypothesis of the
innocence of the appellant but on the contrary the same are of exclusive I
nature consistent only with the hypothesis of the guilt of the appellant

.
\ and conclusively lead to irresistable conclusion that it was the appellant
and he alone who had committed murder of the girl Nitma after
subjecting her to forcible sexual intercourse.

This brings us to the question of sentence to be imposed upon the I
appellant for the offences for which he has been found guilty by the two
Courts below as well as by us discussed above. In this connection it may
be pointed out that this Court in the case of Bachan Singh v. State of
Punjab, (1980] 2 sec 84 while discussing the sentencing policy, also laid
down norms indicating the area of imposition of death penalty taking into
consideration the aggravating and mitigating circumstances of the case
and affirmed the view that the sentencing discretion is to be exercised
judicially on well recognised principles, after balancing all the aggravating
and mitigating circumstances of the crime guided by the Legislative Policy
discernible from the provision contained in Sections 253(2) and 354(3) of (
the Code of Criminal Procedure. In other words, the extreme penalty can
be inflicted only in gravest cases of the extreme culpability and in making
choice of the sentence, in addition to the circumstanmces of the offender
also. Having regard to these principles with regard to the imposition of
the extreme penalty it may be noticed that there are absolutely no I
112 SUPREME COURT REPORTS [1994) 2 S.C.R.

A mitigating circumstances in the present case. On the conttary the facts of
the case disclose only aggravating circumstances against the appellant
which we have to some extent discussed above and at the risk of repetition
shall deal with that again briefly.

B The hard facts of the present case are that the appellant Laxman
is the uncle of the deceased and almost occupied the status and position
that of guardi311'. Consequently the victim who was aged about 7 years
must have reposed complete confidence in the appellant must have
believed in his bona fide also and it was on account of such a faith and
belief that she acted upn the command of the appellant in accompanying
c him under 1:he impression that she was being taken to her village
unmindful of the pre-planned unholy designs of the appellant. The victim
was totally a helpless child there being no one to protect h~r in the desert
where she was taken by the appellant misusing his confidence to fulfil
his just. It appears that the appellant bad pre-planned to commit the
D crime by resorting to diabolical methods and it was with that object that
he took the girl to a lonely place to execute his destardly act.

The evidence of Dr. Pushp Lala, PW 12, who conducted the post·
mortem over the dead body of the victim goes to show that she had
E several external and internal injuries on her person including a serious
injury in her private parts showing the brutality with which she was
. subjected to while committing rape on her. The victim of the age of Nitma
could not have ever resisted the act with which she was subjected to. The
appellant seems to have acted in a beastly manner as after satisfying his
F lust he thought that the victim might expose him for the ,commission of ,.•
the offence of forcible rape on her to the family members and other, the
appellant with a view to screen the evidence of his crime also put an end
to the life of innocent girl who had seen only seven summe1'6. The
evidence on record is indicative of the fact as to how diabolically the
G appellant had conceived of his plan and brutally executed it and such a
calculated, cold blooded and brutal murder of a girl of a very tender age
after committing rape on her would undoubtedly fall in the category of
rarest of the rare case attracting no punishment other than the capital
punishment and consequently we confirm the sentence of death imposed
H upon the appellant for the offence under Section 302 of the Penal Code.
LAXMANNAIK v. STATEOFORISSA[FAIZANUDDIN,J.] 113

As regards the punishment under Section 376, neither the learned Trial A
1- Judge nor the High Court have awarded any separate and additional
substantive sentence and in view of the fact that the sentence of death
awarded to the appellant has been confirmed we also do not deem it
necessary to impose any sentence on the appellant under Section 376.

In the result the appeal preferred by the appellant fails and is B
hereby dismisse l

T.N.A. Appeal dismissed.

':
'