IMPORTANT POINT
When life imprisonment is one of many sentences, they cannot run subsequently.

JUDGMENT

Sudhansu Jyoti Mukhopadhaya, J.—These appeals are directed against the common judgment dated 8th January, 2008 passed by the High Court of Orissa at Cuttack in Death Reference Case No.2 of 2007 and J. Crl. A.No.12 of 2007. By the impugned judgment, the High Court upheld the conviction of the appellant for the offence under Section 376, 302 and 201 IPC. However, taking into consideration the facts and circumstances of the case, the age of the appellant, his family background and the fact that the appellant had no criminal antecedent, the capital sentence for the offence under Section 302 IPC has been commuted to life imprisonment; and rest of sentence remain unaltered.

2. The case of the prosecution is that on 11th September, 2004, at about 3 p.m. accused Duryodhan Rout, on the pretext that the deceased, Subhasini, a minor girl aged about 10 years would talk over phone with his brother, Bamodev Bhoi took her on a bicycle. When the evening set in, the accused alone returned to the village and on enquiry about Subhasini, by Mulia Bhoi (PW-5), father of the deceased, he told that she had gone with a woman of Ranibandha to her house. On the next day, as she did not return Mulia Boi (PW-5) again questioned the accused regarding the where about of the deceased.

The accused confessed in presence of Rabi Biswal (PW-3), Dasarathi Bhoi (PW-4) and Subashini Bhoi that he killed the deceased by pressing her neck. With the help of these three witnesses, Mulia Bhoi (PW- 5) took the accused to Thakurgarh P.S. got the FIR scribed by one Laxman Senapti and lodged it before Udit Narayan Pany, Officer-in-charge of the said Police Station. A P.S. Case No.51 dated 12th September, 2004 under Section 302/201 IPC was instituted.

The accused was arrested, his statement was recorded under Section 27 of the Indian Evidence Act on the basis of which he went to the spot made recovery of the dead body of the deceased, held inquest over it, seized the Chadi (underwear) of the victim lying near the spot, prepared seizure list in respect thereof and sent the dead body to Adhamalik Hospital for autopsy. He also seized the wearing apparels of the accused, forwarded to the Court on 13th December, 2004 and handed over charge of investigation of the case to the C.I. of Police. After completion of investigation, Investigating Officer (I.O.) submitted charge sheet against the accused under Sections 376/302/201 IPC.

3. Learned Session Judge secured the presence of the accused, framed charges u/s 376/302/201 I.P.C. The accused pleaded not guilty and claimed to be tried.

4. In order to establish its case, the prosecution examined 8 witnesses. The accused examined himself as DW-1 besides examined DW-2, his father to prove his stand. After assessing the evidence on record, the Trial Court found the accused guilty for the offence under Sections 376(f)/302/201 IPC convicted him thereunder and sentenced him to death for the offence punishable under Section 302 IPC.

The Session Judge also sentenced him to undergo RI for 10 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 376(f)IPC and RI for one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 201 IPC. It was further ordered that in default of payment of fine, the convict would suffer imprisonment for one year for the offence punishable under Section 376(f) IPC and three months for the offence punishable under Section 201 IPC and the substantive sentences would run consecutively.

5. The High Court, as noticed above in Reference, converted the capital sentenced to life imprisonment but ordered that rest of the sentence remain unaltered.

6. Admittedly, there was no eye-witness to the occurrence, the order of conviction was based on the circumstantial evidence only. From the evidence of Paramla Nahak (PW-1) and Pechi @ Bilas Bhoi (PW-2), it transpires that on the date occurrence at about 4 p.m. while they were making chips by braking boulders by the side of road,