The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 97 of 2006 Nitei @ Nityananda Behera …. Appellant Mr. Rudra Narayan Parija, Amicus Curiae -versus- State of Orissa Respondent Mr. Rajesh Tripathy, Addl. Standing Counsel …. CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY Order No.
Decision
ORDER 28.06.2023 02. 1. The present appeal is directed against the judgment dated 25th July, 2006 passed by the Adhoc Additional Sessions Judge, F.T.C., Khurda in S.T. Case No.92/515 of 2004 arising out of G.R. Case No.361 of 2004 whereby the Appellant was convicted for the offences under Sections 302/201 of IPC and sentenced to imprisonment for life along with a fine of Rs.2,000/- and in default to undergo R.I. for six months and sentenced to undergo R.I. for three years and to pay a fine of Rs.500/- and in default to undergo R.I. for two months for the offence punishable under Section 201 of IPC. The Appellant was charged with having committed the murder of his own nephew, Biju Behera, aged four years. 2. The case of the prosecution was that the Appellant lived in the house of his elder brother Gouranga Behera (P.W.6), who advised the Appellant to work and earn a livelihood. The Appellant did not care much for the said advice. In fact, he was annoyed with the said advice. 3. The further case of the prosecution was that on 30th April, 2004 at around 3.30 p.m., the Appellant took the deceased (son of P.W.6) i.e. his nephew, aged four years, from his house on a cycle to roam Page 1 of 4 about. About two hours thereafter Puspalata @ Gavi (P.W.9), the elder sister of P.W.6 sent a telephonic message to Pramod Kumar Sahu (P.W.2) stating that after killing the deceased, the Appellant had thrown his dead body in Oriya Sahi Puruna Pokhari of Keranga. P.W.9 therefore requested P.W.2 to search for the said dead body there. 4. After some time, P.W.9 again telephoned P.W.2 stating that the Appellant had thrown the dead body in the Bada Pokhari. P.W.6 stated that they did not believe the statements of the Appellant and requested P.W.9 to detain the Appellant. 5. The villagers then brought the Appellant from the house of P.W.9. Upon questioning, he first gave vacillating statements about having thrown the dead body of the deceased in the Puruna Tank, Bada Pokhari and so on. When the villagers on searching these places, could not get the dead body, the Appellant on much persuasion, is supposed to have confessed to his guilt in the presence of Pabitra Mohan Sahu (P.W.4), Kalandi Sahu (P.W.17), Jogendra Swain (P.W.3), Dilu Behera and Mabur Hussen (P.W.8) that he had thrown the dead body in a well near Haladia College. When the villagers then went to the said well, they found the dead body of the deceased floating on the water inside the well. 6. A report was lodged on 1st May, 2004 at around 1.30 a.m. by Prahalad Behera (P.W.7) before the IIC, Khurda P.S., who took up the investigation, reached at the spot and conducted an inquest over the dead body. Post Mortem was conducted by Dr. Bharat Das (P.W.18). The death was opined to be due to drowning. 7. The trial Court on analysis of the entire evidence came to the conclusion that the prosecution had been able to bring home the Page 2 of 4 charge of murder against the Appellant on the basis of circumstantial evidence of the Appellant having been last seen with the deceased; having taken him from his house on a bicycle and, thereafter, making an extra judicial confession before his co- villagers. The medical evidence also proved that the death was homicidal. The recovery of dead body by the villagers from the well at the instance of the Appellant was another circumstance. Later, pursuant to the statements made by the Appellant while in police custody, the police was able to recover the cycle and the gamuchha used in the commission of the offence. However, the medical evidence could not establish the commission of the offence punishable under Section 377 of IPC. The Appellant was accordingly acquitted of the said offence. 8. This Court has examined the entire evidence with the assistance of the learned counsel for the Appellant, who was appointed as Amicus Curiae by this Court as well as the learned Additional Standing Counsel for the State. 9. Although P.W.9 turned hostile, her evidence was still relevant as far as the presence of the Appellant in her house after committing the crime is concerned. She did not deny the fact that the villagers came and took him and that till then she had detained him at her place. 10. However, what is significant is that in front of the co-villagers as noted hereinbefore, the Appellant made a confession which led to them to recover the body of the deceased from the well near the Haladia College. They could not have done so unless the Appellant had confessed. This was of course not a statement made by the Appellant while in police custody and, therefore, there was no bar to admitting the said evidence of recovery of the dead body Page 3 of 4 pursuant to the extra-judicial confession made by the Appellant to the co-villagers. The cross examination of the said witnesses before whom such extra judicial confession was made did not yield much for the defence. 11. When all the circumstances noted hereinbefore are placed in sequence, they do form a continuous chain that points unerringly to the guilt of the Appellant. Then there is the additional circumstance that when the incriminating evidence was put to him under Section 313 of Cr.P.C., he could not offer any satisfactory explanation. 12. On a careful perusal of the entire record, this Court is satisfied that no error has been committed by the learned trial Court in convicting the Appellant for the offences punishable under Sections 302 and 201 of IPC. The Court accordingly upholds both the conviction and the sentence awarded to the Appellant by the learned trial Court. 13. There is no merit in the present appeal and it is dismissed as such. A copy of this judgment be delivered to the Appellant forthwith through the Superintendent of the concerned jail. Chief Justice (Dr. S. Muralidhar) Judge Subhasmita (G. Satapathy) Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Jun-2023 16:12:46 Page 4 of 4