Holding

The Supreme Court held that the High Court’s acquittal was perverse; the testimony of PW‑1 is trustworthy, and the accused A‑5, A‑6, A‑7 and A‑11 are guilty of gang‑rape under Section 376 read with Section 34 and of culpable homicide not amounting to murder under Section 304(II) read with Section 34.

Summary

The State of Orissa appealed against the High Court's acquittal of eight accused of rape and murder of Chhabirani. The husband (PW‑1) witnessed the gang‑rape and murder at a river bed and, despite police inaction, lodged an FIR. The trial court convicted all eight under Sections 302 and 376 IPC read with Section 34, along with minor offences. The High Court set aside the convictions for murder and rape, relying on alleged unreliability of PW‑1’s testimony and procedural lapses. The Supreme Court held the High Court’s judgment perverse, affirmed the credibility of PW‑1, and concluded that four accused (A‑5, A‑6, A‑7, A‑11) were guilty of gang‑rape under Section 376 read with 34 and of culpable homicide not amounting to murder under Section 304(II) read with 34. Their convictions were upheld; the others were acquitted of the major offences but their minor‑offence convictions were confirmed.

Issues considered

The adequacy and reliability of PW‑1’s testimony despite not naming the accused to other witnesses.
Whether the High Court erred in acquitting the accused of offences under Sections 302 and 376 IPC read with Section 34.
The applicability of Section 34 (common intention) to the accused who did not perform overt acts.
Whether the nature of the injuries established murder (Section 302) or culpable homicide not amounting to murder (Section 304(II)).
Whether procedural lapses in investigation (e.g., non‑seizure of torch, police inaction) justify rejecting the prosecution case.

Legislation cited

Code of Criminal Procedures. 161, s. 164
Constitution of Indias. 136
Indian Penal Code, 1860s. 302, s. 304(II), s. 323, s. 34, s. 341, s. 342, s. 347, s. 376, s. 448, s. 506

Subjects

rapemurderculpable homicide not amounting to murderSection 34 common intentionwitness testimonyinvestigation lapsesperverse judgmentspecial leave under Article 136evidentiary valuebenefit of doubt

Judgment

r
STATE OF ORISSA A
v.
DIBAKAR NAIK AND ORS.

APRIL 23, 2002

[R.P. SETHI AND DORAISWAMY RAJU, JJ.] B

t Penal Code, 1860--Sections 302, 304, 376 rlw 34 and Sections 323,
341, 342, 347, 448 and 506-0ffences-A//egation- Trial Court convicted 8
accused ulss.302 and 376 rlw 34 and for other minor offences-Other accused C
convicted for minor offences-Acquittal of the 8 accused by High Court-On
appeal, acquittal of the accused u!ss 302 and 376 rlw s.34 challenged-The
8 accused specifically mentioned in FIR with allegation of murder and rape--
Overt act attributed only to 4 of them-Held, the 4 accused rightly convicted
u/s 376 r/w 34-Conviction u/s 302 rlw 34 not justified since the nature of
injuries indicated that they had not intended to cause her death-Jn view of D
the manner of committing rape, they are assumed to be having knowledge that
;._ the action was likely to cause her death-Hence convicted u/s 304(/I) rlw
.,. 34-0ther accused acquitted for the offences of murder and rape-Conviction
for minor offences upheld

Criminal Trial E
Post incident conduct-Evidentiary value-Appreciation of

Benefit of doubt-Discrepancy in investigation-Jn such event benefit
not given to the accused
F
Constitution of India, 1950-Article 136-Appeal-Finding of fact-
Interference with-Held, generally not permissible-But where such finding
perverse, based on inadmissible evidence and result of imaginative hypothesis
and conjectures, interference is permissible.

Appellant-accused were prosecuted for murder and rape of the decease<I G
at riverbed and for having assaulted her and PWl on two earlier occasions
i.e. at bus stand and party office. Prosecution case was that accused who bore
enemity towards the deceased and her husband (PWl) wanted them to leave
the village. When the deceased, her husband and infant were fleeing to save

307 H
308 SUPREME COURT REPORTS [2002] 3 S.C.R.

A their lives, accused gang raped and murdered her. PWl had seen the assault
on his wife with the help of torch light. He managed to save his and the life of
the infant. After the incident he had met PWlO and PW13 to whom he had
narrated the incident. He made repeated efforts to report the incident in the
night of the incident, but was unsuccessful due to non co-operation of
.
investigation officials, and he could manage to lodge FIR one day after the
B incident. On earlier occasions regarding assault on PWl and modesty of the
deceased as also commission of theft in their house, FIR was lodged. Accused
1, 4, 10 and 12 were alleged to be responsible for the incident at the bus stand
and the office.

C Regarding incident at the river bed, names of Accused 2, 3, 5, 6, 7, 8, 9
and 11 were specifically mentioned, but no overt acts were attributed to
Accused 2, 3, 8 and 9. Post Mortem Report showed signs of violent forced
intercourse. During investigation of the case there was frequent changes of
the investigating officers.

D Trial Court convicted Accused 2, 3, 5, 6, 7, 8, 9 and 11 for the offences
punishable u/ss. 376 and 302 r/w Section 34 IPC. Accused 1, 4, 10 and 12
were convicted for minor offences punishable u/ss 448, 323, 342, 347 and 506.
The Court found that the investigation was purfunctory.

On appeal High Court acquitted the accused of the charges u/ss 376
E and 302 r/w Section 34, holding that evidence of PWl was not reliable as he
had not disclosed the names of the accused to PWs 10 and 13 whom be had
met immediately after the incident that since his evidence was contradicted
by his own testimony as well as by medical evidence; that since the torch which
he claimed to have carried on the night o( the incident was not seized from
him; and since PWl was coward he did not come to rescue of his wife. The
F
appeal of the accused convicted for minor offences was dismissed upholding
their conviction. The appeal of the State against acquittal of some of the
accused with regard to minor offences and offences of murder and rape, was
also dismissed. Hence the present appeal. Accused 1, 4, 10 and 12 had already
undergone their sentence. Accused 3 and 6 had died during pendency of the
G appeal. Hence the appeal abated against them.

Partly allowing the appeals, the Court

HELD: 1.1. A:-5, A-6, A-7, A-11 are held guilty for the commission of
offences punishable under Section 304 (II) read with Section 34 of the Indian
H Penal Code besides the commission of offence punishable under Section 376
- STATE OF ORJSSA v. DIBAKAR NAIK

read with Section 34 of the Indian Penal Code. The conviction and sentence
awarded by the trial court to A-5, A-6, A-7, A-11 under Section 376 of the
309
A

-
Indian Penal Code is upheld. [324-H; 325-A, BJ

1.2. On re-appreciation of whole of the evidence, it is concluded that A-
S, A-6, A-7 and A-11 were responsible for the occurrence which took place
in the river bed wherein the deceased was subjected to gang-rape. But the B
nature of the injuries inflicted upon the person of the deceased indicate that
the accused persons had not intended to cause her death. However, on proof
f
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. (323-D, E, F; 324-G] C
1.3. Instant case is a fit case requiring interference of this Court as the
High Court has failed to discharge its statutory obUgations. The accused have
wrongly been acquitted on surmises and conjectures ignoring the trustworthy
evidence ofPW-1 by reaching perverse conclusions regarding the facts of the
case. The view taken by the High Court, apparently appeap to be perverse, D
not based upon evidence, completely in negation of the normal human
behaviour of an individual caught in such a horrifying situation and for-getting
that for the fault in the investigation no benefit can be given to the accused
persons. To reject the testimony of PW-1, High Court appears to have adopted
a technical approach. (319-E; 320-D]
E
The State ofPunjab v. Jagir Singh, Baljit Singh and Karam Singh, [1974]
3 sec 277 and State ofHP. v. Lekh Raj and Anr., [2000) 1 sec 247, referred
to.

1.4. The fact that PWl could not save his wife, did warrant a finding
that be was a coward and should not be believed. The circumstances narrated F
by PWl show the presence of a number of accused persons, some of who'll
were even armed with knife. He had their infant child in his lap and heard
the deceased crying and appealing to PWl to save bis life and the life of the
infant. By no standards PWl can be termed to be coward. Even if he was a
coward, there is no ground not to rely upon his testimony on that ground G
alone. [320-B, CJ

1.5. Non-mentioning of the names of the accused by PWl to PWs 10
and 13 is factually not borne out and even if accepted would not render bis
testimony unacceptable. Post event conduct of a witness cannot be predicted
on specified lines. It varies from person to person-so different people react H
\
310 SUPREME COURT REPORTS [2002) 3 S.C.R ..

A differently under different situations. PWl had lost his wife in a most ghastly
crime committed by the culprits. He apprehended danger to his life and was
under shock. PWs 10 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 PWl making
B his testimony doubt full or unbelievable. Under the facts and circumstances,
the conduct of PWl cannot be held to be abnormal. The efforts made by
PWl to reach the police station during the night speak of his sincere effort to
ensure that the real culprits were brought to book.
(322-H; 323-A, B; 323-D; 319-G, HJ

C Rammi @ Rameshwar v. State of MP., (1999) 8 SCC 649, relied on.

1.6. 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. (322-F]

Balo Yadav and Ors. v. State of Bihar, (1997) 5 SCC 360, relied on.
D •
1.7. 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
E when PW41 took over the investigation that some evidence was collected to
find out the truth regarding the allegations made by PWl. [319-F)

2.1. 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
F minor offence, as awarded by the trial court is upheld. [325-D-E]

2.2. In the FIR PWl 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 where the deceased 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
G 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
the PW1' and did not intend to commit the offence of either the rape or tlie
H murder. In the absence of any overt act attributed to them, there is nothing
STA TE UF ORISSA v. DIBAKAR NAIK [SETHI, J.) 311
to hold that A-2, A-3. A-8 and A-9 shared any common intention with A-5, A- A
6, A-7 and A-11, who bad actually caught hold of the deceased and followed
the witness (PWl) with the intention to apprehend him. [320-F, G, H; 321-AJ
2.3. There is no evidence against A-1, A-4, A-10 and A-12 for holding them
guilty regarding the commission of the offence of rape and murder. [317-FJ
B
3. In an appeal filed under Article 136 of the constitution generally this
Court does not interfere with the finding of fact arrived after proper
f appreciation of evidence by the Court 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 C
judgment impugned. [318-B, CJ

Mst. Da/bir Kaur and Ors. v. State of Putyab, [1976) 4 SCC 1 ; Duli
Chand v. Delhi Administration, (1975) 4 SCC 649 and Ramanbhai N. apbhai
Patel and Ors. v. State of Gujarat, (2000) 1 SCC 358, referred to.
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appe l Nos.
>- 534-535 of 1994.

From the Judgment and Order dated l. 7. I 985 of the Orissa Hig Court
in Crl. A. No. 133 of 1981 and G.A. Nos. 82 of 1981.
E
Raj Kumar Mehta for the Appellants.

Anukul Chandra Pradhan, Shiv Sagar Tiwari, Ms. Sasmita Tripa y for
the Respondents Nos. 1, 3, 5-7, 9, 10-12.

P.N. Misra, Abhisth Kumar, S. Misra and Ms. Mumud Lata Das r the F
Respondents Nos. 11.

The Judgment of the Court was delivered by

SETHI, J. Shrieks and wails of a blossoming young helpless w man
pleading for mercy, praying for sparing her life and honour did not det r the G
vulture like culprits in committing the most ghastliest crime, known nder
the sky, of rape and culpable homicide for quenching their thrust for p sion
and revenge. Overawed by the might of the accused, the unfortunate bus and,
apparently concerned with the safety of his son and self, could not resc e his
wife from the clutches of the accused. The alleged crime, committed b the
couple, for which they were punished by the accused was the self-cone ived H
312 SUPREME COURT REPORTS [2002] 3 S.C.R.

A notions of the culprits regarding publication of some material against them
by the deceased an~d 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
B 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
C 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
D 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
E Chhabirani aged about 23 years was 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 (PWl) of about 30 years of age married the deceased, who was
a Bengali lady, in the year 1973. PWI was a matriculate and resident of
Village Dhiasaibiri where his parents and three brothers were residing. About
F 7 months prior to the occurrence, the couple was residing in Village Biridi
which is about 10-11 kms. from PW l'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 PWl had
served as a teacher. Seven months before settling in Village Biridi,
Nabhakishore (PWl) had become a Press Reporter of the daily Newspaper
G 'Pragatibadi', weekly Newspaper 'Nirvika' and monthly newspaper
'Niankhuntha'. The deceased was also a Press Reporter of monthly newspaper
'Durmukha'. Besides being a Press Reporter, PWl was also an agent of some
magazines. Prior to the date of occurrence on the reports of Nabhakishore
(PWl), news item in 1980 July issue of 'Nirvika' were published. The said
H news items were against Raju Rao Dora or Kalpana Mohanty whose brother
i

STATE OF ORISSA v. DIBAKARNAIK [SETHI, J.] 313

is a friend of accused Sudhir Parida (A-4) or against Block Development A
Officer and against the Management of the local hospital. After publication
of the said news item the accused Raju Rao Dora demanded PW! to vacate
his house and even attempted to lock the same but failed in his attempt. A-
2, A-4 and A-5 threatened PW! for his publishing the news item pertaining
to the said accused and the Block Development Officer. Prior to the date of B
occurrence, A-3 is alleged to have assaulted PW l and outraged the modesty
of the deceased with the help of his gang regarding which PW! 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 PW! for which
another FIR was lodged as a consequence of which Shibaji Mania, the nephew C
of A-5 was arrested. A-5 thereafter threatened PW! 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 PW!. It was alleged that on that day at night A-4, A-5,
A-6, and A-11 were playing cards with Hrudananda Patra (PW 32) and D
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 PW! from PW32.
According to the prosecution, when the deceased and her husband were
waiting at the Biricli bus stand on 3.10.1980 to leave for Cuttack, some of the E
accused persons met PW! 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 I
kilometer from the bus-stand because A-2 wanted him to be there. However,
when PW! intimated the accused persons that he would meet A-2 on that day
ab<!ut 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 F
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 G
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
liiee 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 PW! and A-5 gave H
314 SUPREME COURT REPORTS r2002) 3 S.C.R.

A 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 PWl by giving him fists
and kick blows. A-2 informed the other accused persons that PWI 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
B 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 PWI was false
and that he was never assaulted by any of the accused persons. Outnumbered
by accused persons and under their threat, the PWI was compelled to sign
the said writing. PWl was locked in the office room of the Congress Party
C and released only in the evening. A-4 and A-5 threatened PWI to leave the
village that very night. When PWl 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.
D
At about 7.30 p.m. on 3 .10.1980 the deceased and PWl 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 PWI that somebody was coming from behind.
E PWI 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. PWI asked the
deceased to proceed hurriedly. PWI took the child from the deceased and
both of them started running. The deceased, though running, was left behind.
While running PWl 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
F 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 PWI
whereupon A-7 and A-11 chased him. In the course of chasing the aforesaid
persons went ahead of th~ place where PWI was running as they could not
notice him due to darkness. Thereafter PWI did not take the route towards
G 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 (PW IO) advised him to report the incident to the
Sarpanch Shamkanta Mohanty who advised him to go to the spot with four
H or five persons. Thereafter PWI accompanied by PWlO and 2 to 4 persons
STATE OF ORlSSA v. DIBAKARNAIK [SETHI, J.] 315

went to the river bed where he found naked dead body of his wife lying in A
the river bed. She was also bleeding from neck. Her blouse was tom, 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 lives.
Left with no option PW! returned to the house of Premoda Jena (PWl3) of
Manguli. He informed the incident to him and requested him to accompany B
him to the police station. PW13, however, did not agree. The helpless husband,
accompanied by PWJ3 went to Ankhia Sub Post Office in the night which
was at a distance of ~bout 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 C
was made at the police station which was received by Constable Kashinath
Naik (PW19). PW! 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 (PW! 9) told PW! to wait as he was going to inform IOC to talk with
him over the phone. PW I waited till the morning but neither the Officer D
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 PW l. On 4.10.1980 PW! came at the police station E
and met AS! (PW24) informing him about the incident. Instead of recording
the FIR, the PW! was taken to the officer-incharge of the police station. PW!
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 F
police accompanied by Chokidar reached. Some of the accused persons were
arrested and again as per direction of PW 36, PW! 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 G
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 PW 38 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 H
316 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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 IO 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,
B 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 tom shirt, some pieces of biris, etc. were seized 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
C 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
<;onclusion of the trial of the respondents-accused were convicted for various
offences and sentenced accordingly. The appeals filed by the accused persons
were allowed vide the judgment impugned in these appeals.
D
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
E 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 PWl Dukhishyam (PW8), on receipt of which he came towards
p Biridi but was prevented from reaching his son as he was threatened by two
of the accused persons. PWl 1 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. PWslO and
G 13 are the witnesses to whom PWl 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 PWl and
his deceased wife on the night of 2.10.1980. PWl 7 has prepared the spot site
H plan. PW18 is the Police Constable who carried the dead body for post-
'
I

STA TE OF ORISSA v. DIBAKAR NAIK [SETHI, J.) 317

mortem examination which was performed by Dr. Indramani Jena (PW2 l ). A
PW19 is the police constable of the Police Station Jagatsinghpur who received
the phone message from PW! regarding the incident during the night. PW20
is the Post Master Anakhia Post Office wherefrom PWl 9 was contacted by
PW! over phone. PW26 is the SDJM Jagatsinghpur who conducted the test
identification parade. PWsl4, 15, 28, 29 and 30 are formal witnesses to the B
inquest report and the seizure memos.PW3 l 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 !Os Chakradhar Baral, AS! (PW25), Bhagaban Misra, SI C
(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).

DWI has spoken about the incident at Biridi Congress Party Office
and DW2 has proved that some of the accused persons were married having D
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.
E
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 has been stated at the Bar that such F
- 1' 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-I 0) 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 G
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. H
'
318 SUPREME COURT REPORTS [2002] 3 S.C.R.

A In these appeals the culpability of Dibakar Naik (A-2), Raju Rao Dora
(A-3), Birabar ~ania (A-5), Bihra Behera @ Baga Tanti (A-7), Surendra
Barik (A-8), Kelu Charan Das (A-9) and Madha Tanti @ Madhabananda
Pannanik (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
B 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
C 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 and
Ors. v. 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:
D
~-
"(l)that the court would not interfere with the concurrent fmding 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
E 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;

-
-~

F (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;
1
(4) that the Court would interfere where the High Court has arrived
at a finding of fact in disregard of a judicial process, principles ....
G 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;
(5) the Court might also interfere where on the proved facts wrong
inferences of law have been drawn or where the conclusions of
•
H the High Court are manifestly perverse and based on no evidence."
STATE OF ORISSA v. DJBAKARNAIK [SETHI, J.] 319

To the same effect are the judgments of this Court in Duli Chand v. Delhi A
Administration, [1975] 4 SCC 649 and Ramanbhai Naranbhai Patel and Ors.
v. State of Gujarat, [2000] I 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 anci the result of surmises and conjectures. B
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 PW! cannot C
be relied upon as he had not disclosed the names of the accused persons to
PWslO and 13 whom he met immediately after the occurrence. Finding that
PW! 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 PW! did D
not fmd 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, E
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 irvestigation 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 p
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 (PW4 l) took over the investigation
that some evidence was collected to find out the truth regarding the allegations
made by PW!. Non disclosure of the names by PW! to PWs!O and 13 could
not be made a ground for rejecting his testimony as it was in evidence that G
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 PW!
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 PW! has been admitted by PW19. However, the conduct of the H
320 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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 PWl to delete certain
B portions from the written report. There is no explanation as to why the
signatures of PWl were obtained on two blank papers. Only because PWl
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
C crying and appealing to PWl to save his life and the life of the infant. By
no standards PWl 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
D self-inspiring testimony of PWl. 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 PWl by reaching at
perverse conclusions regarding the facts of the case.
E
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.

F It may be noticed, at this stage, that in the FIR recorded on 4.10.1980
at 8 a.in., PWl 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.
G It is in evidence that all the accused persons, name_d 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 7(·•
deceased and PWl 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
H is nothing on record to hold that A-2, A-3, A-8 and A-9 shared any c;:ommon
•

STATE OF ORISSA v. DIBAKARNAIK [SETHI, J.] 321

-~ intention with A-5, A-6, A-7 and A-11 who had actually caught hold of A
Chhabirani and followed the witness (PW!) with the intention to apprehend
him. In his statement PW! 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 B
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 C
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 .:ud A-6 had caught hold of her. 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 D
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 E
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 PW! 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 F
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 PW!, the High Court appears to have adopted
a technical approach. This Court in The State of Punjab v. Jagir Singh, Ba/jit G
Singh and 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 H
•
322 SUPREME COURT REPORTS (2002] 3 S.C.R.

A 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. v. Leich Raj and Anr., [2000] I 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
B 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
c 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
D 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 doginatic 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
E as part and parcel of the human civilization and the realities of life.
The 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".
F Regarding non-seizure of the torchlight, used by the witness to see the
occurrence, it was held in Balo Yadav and Ors. v. State of Bihar, [1997] 5
sec 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
G 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
PWl to disclose the name of the accused persons to PWslO and 13. Non
mentioning of the names of the accused is factually not borne out and even
H if accepted would not render his testimony unacceptable. Post event conduct
STATE OF ORISSA v. DIBAKAR NAIK [SETHI, J.] 323

of a witness cannot be predicted on specified lines. It varies from person to A
person as different people react differently under different situations. PWI
had lost his wife in a most ghastly crime committed by the culprits. He
apprehended danger to his life and was under shock. PWsIO 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 B
inference could be drawn against PW! making his testimony doubtful or
unbelievable. In Rammi@ Rameshwar v. State of MP. [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 C
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 PW! cannot be held to be
abnormal. D
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, E
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 F
deceased indicate that the accused persons had not intended to cause her
death. Dr. Indermani Jena (PW2 l) who conducted the post-mortem over the
dead body of Chhabirani had found the following injuries:

"(!) One swelling l" diameter irregularly circular over right mastoid
process. G
(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. H
324 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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.
B _ (SL There were two echymosis of Y-1." in diameter each on posterior
vaginal wall. The injuries were s· O' clock and 7 O' positions.
(6) On examination of the vaginal smear I found dead spermatoza
and opthelial cells.
C (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."
D 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 I and 2 and the corresponding internal injuries. Injury
No.2 with corresponding internal injury was sufficient to cause the death.
E
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
F 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
G 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 ~ction 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
H (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda
STATE OF ORISSA v. DIBAKAR NAIK [SETHI, J.] 325

Parmanik (A-11) guilty for the commission of offences punishable under A
Section 304 (II) read with Section 34 of the Indian Penal Code besides the
commission of offence punishable under Section 3 76 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-II) under B
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 I 0 years.
Both the sentences shall run concurrently.

The appeals are partly allowed in so far as Birabar Mania (A-5), Babaji C
Mania (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @
Madhabananda Parrnanik (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 D
persons are dismissed holding them not guilty for the commission of the
.,... offences punishable under Sections 376 and 304 read with Section 34 !PC.
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.
E
K.K.T. Appeals partly allowed.