Crl.A. 1228 of 2008 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1228  OF 2008

PURNA CHANDRA KUSAL ..... APPELLANT

VERSUS

STAT EOF ORISSA ..... RESPONDENT

O R D E R

1. This appeal by way of special leave is directed  

against the judgment of the High Court of Orissa whereby  

the appellant has been convicted for offence punishable  

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

sentence of death had been awarded by the Sessions Court  

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

of  a  reference  made  under  Section  366  of  the  Code  of  

Criminal Procedure.

2. As per the prosecution story, the appellant Purna  

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

of the deceased girl, were neighbours and were residing  

in a basti near the railway line near  Bondamunda Railway

Crl.A. 1228 of 2008 2

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

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

coal that she had collected from the railway line leaving  

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

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

after  fifteen  or  twenty  minutes  and  found  that  her  

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

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

information after a short while that the dead body of her  

daughter was lying on the railway track.  She rushed to  

that side and found the dead body lying in between two  

bogies.  Information about the dead body was also conveyed  

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

The body was also despatched for its post mortem and it  

was found that the girl had been raped and murdered by  

asphyxiation.  A First Information Report was thereupon  

drawn up on the basis of the inquiry conducted by the  

police.   During  the  course  of  the  investigation,  the  

police arrested the appellant and on a statement made by  

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

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

were recovered.  Similarly on his disclosure, the clothes  

that he had been wearing too were recovered.  The trial  

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

also the fact that the recoveries had been made at the

Crl.A. 1228 of 2008 3

instance of the appellant convicted and sentenced him as  

already mentioned above.   

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

4. We find absolutely no reason to interfere with the  

conviction of the appellant.  In addition to the last seen  

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

the recoveries made at the instance of the appellant.  The  

clothes  that  the  appellant  and  the  deceased  had  been  

wearing  had  also  been  taken  into  possession  by  the  

investigating agency and were found to be stained with  

human  blood.   We  find  therefore,  that  the  last  seen  

evidence finds full corroboration  from the recoveries.   

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

sentence in the present case was not called for.  The  

appellant was a labourer living in a basti along side the  

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

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

circumstantial  in  nature.   Concededly,  there  is  no  

inflexible rule that a death sentence cannot be awarded in  

a case resting on circumstantial evidence but courts are  

as  a  matter  of  prudence,  hesitant  in  awarding  this  

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

Crl.A. 1228 of 2008 4

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

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

the appellant.  On a cumulative assessment of the facts,  

we are of the opinion that the death sentence should be  

commuted into one for life.   

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

but commute the sentence of death to life imprisonment.  

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

dismiss the appeal.

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

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

........................J [GYAN SUDHA MISRA]

NEW DELHI JULY 12, 2011.