MR. JUSTICE D. DASH MR. JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.47 of 2010 In the matter of an Appeal under Section 383 of the Code of Criminal Procedure, 1973 and from the judgment dated 29.03.2010 passed by the learned Addl. Sessions Judge, Khurda in S.T. Case No.20 of 2005. Tuna @ Nasar Ahmed Khan …. Appellant -versus- State of Odisha …. Respondent For Appellant : G.K. Nayak, Advocate For Respondent : Mr. P.K. Mohanty, ASC CORAM: MR. JUSTICE D. DASH MR. JUSTICE V. NARASINGH Date of hearing : 22.03.2024 : Date of judgment :15.04.2024 V. Narasingh, J. The Appellant, has called in question the judgment of conviction U/s.302/201 of the Indian Penal Code, 1860 (‘IPC’) and order of sentence dated 29.03.2010 passed by the learned Addl. Sessions Judge, Khurda, in S.T. Case No.20 of 2005 corresponding to Khurda P.S. Case No.235 of 2004 in the Court of learned S.D.J.M., Khurda directing him to undergo rigorous imprisonment for life and pay a fine of Rs.2,500/- in default to JCRLA No.47 of 2010 Page 1 of 14 undergo rigorous imprisonment for six months more and rigorous imprisonment for a further period of one year and pay a fine of Rs.2,500/- in default to undergo rigorous imprisonment for a further period of six months more for commission of offence under Section 201 IPC. 2. The case of the prosecution is that on 28.07.2004, the accused-Appellant took his daughter Manisha Begum @ Mama aged about 5 years along with him telling his wife, P.W.12- Khairtun Begum that he is going to the house of his brother- P.W.15 (Fukar @ Fukarat Ahmed Khan). The accused-Appellant also took pant and shirt of Manisha Begum @ Mama with him. 3. On 29.07.2004, at about 6 P.M., the Informant-P.W.12 got information from the villagers that the deadbody of a female child having resemblance with her daughter Manisha Begum @ Mama is floating is a deserted well, located by side of road from Keranga to Badasahi. 4. It is on record that Informant-P.W.12, getting such information, immediately proceeded to the place of occurrence but enroute she got the information that the police have already taken the deadbody to the police station. JCRLA No.47 of 2010 Page 2 of 14 5. It is the further case of the prosecution that since night has fallen, the Informant came to the Police Station next day along with her father and identified the deadbody of the child as that of her daughter Manisha Begum @ Mama and on her report, Khurda P.S. Case No.235 of 2004 was registered (G.R. Case No.682 of 2004 on the file of learned S.D.J.M., Khurda), Ext.3. 6. During the course of investigation, P.W.19, the Investigating Officer examined the Informant and other witnesses and received the record of Khurda P.S. U.D. Case No.51 dated 29.07.2004 (Ext.-6). Body of Manisha Begum @ Mama was sent for post-mortem examination by A.S.I., Akshaya Kumar Bhanja- P.W.16 during course of enquiry of the said UD Case. 7. On 26.08.2004, he received the post-mortem examination report (Ext.4) and on the same day, the Appellant- accused was arrested and forwarded. He received further clarification to his queries from the Doctor-P.W.17, who conducted the post-mortem examination that the death was due to asphyxia, which can also be caused by throttling. 8. On conclusion of investigation, P.W.19 submitted charge sheet U/s.302/201 of IPC against the Appellant alleging that he JCRLA No.47 of 2010 Page 3 of 14 committed murder of his daughter, Manisha Begum @ Mama aged about 5 years and also caused disappearance of evidence by throwing the deadbody into the well. 9. After commitment, charge was framed U/s.302/201 of IPC by the learned Additional Sessions Judge, Khurda on 08.04.2005 in S.T. Case No.20 of 2005. 10. In the course of trial, the prosecution examined 19 witnesses of which P.W.12-the mother of the deceased and Informant, P.W.2-Kuna @ Raus Ahemmad Khan, P.W.9-Haria @ Harichandan Nayak, P.W.15-Fukar @ Fukarat Ahmed Khan, P.W.17-Dr. Prabhakar Sahoo and P.W.19-Tapan Kumar Pattnaik are the material witnesses. Several documents were admitted into
Legal Reasoning
evidence of which Ext.3- FIR, Ext.4- post-mortem examination report, Ext.5-Report of P.W.17 on the query of IIC, Khurda and Ext.6-U.D. Case record are of significance. The prosecution as well as the defence did not mark any material objects. 11. In his examination U/s.313 Cr.P.C., the defence plea was one of complete denial and additionally, the Appellant disowned his marriage with the Informant-P.W12 and questioned the paternity of the deceased child and put up a defence that there JCRLA No.47 of 2010 Page 4 of 14 was a marriage proposal between him and Informant, which did not fructify and to settle scores, P.W.12 has implicated him falsely in the case at hand. 12. Admittedly, the case at hand is based on circumstantial evidence. On getting information of deadbody floating in a well, P.W-19-I.I.C. of Khurda Police Station instituted Khurda P.S. U.D. Case No.51 dated 29.07.2004 on report of one Kailash Chandra Subudhi-P.W.6 and the enquiry was entrusted to P.W.16. During the course of enquiry, P.W.16 examined the said Kailash Chandra Subudhi-P.W.6, visited the spot and one constable Sk. Farjan Martha was commanded to guard the spot and assists P.W-16 in the enquiry. Requisition was also sent to the Sub-Collector to depute an Executive Magistrate to remain at the spot at the time of inquest and accordingly services of Ashok Kumar Kanungo, Executive Magistrate-P.W.18, Revenue Officer, Khurda was availed. 13. The deadbody which was floating in the water of the well belonging to Kailash Chandra Subudhi-P.W.6, was brought out to the side of the well but though there was number of persons present, none could identify the body. Inquest was held JCRLA No.47 of 2010 Page 5 of 14 in the presence of the Executive Magistrate and witnesses and the Inquest report-Ext.2 was prepared. The photographs of the deadbody were taken and the body was sent to D.H.H., Khurda for post-mortem through police constable Sk. Farzen (P.W.4) and Gramarakhi- Dhani Naik. 14. The next day, on 30.07.2004, it is stated by P.W.16 that one Khairtun Begum-P.W.12 appeared at Khurda P.S. and claimed the deceased to be her daughter Manisha Begum @ Mama and identified the deadbody at the post-mortem examination centre. It was alleged by P.W.12 that the Appellant, her husband is the author of the crime and on the basis of which Khurda P.S. Case No.235 of 2004 was registered and enquiry in the U.D. Case was closed and the investigation was taken over by the IIC, Tapan Kumar Pattnaik- P.W.19. 15. P.W.19 in his evidence has stated that he received the postmortem examination report-Ext.4 on 26.08.2004 and on the same day, arrested the accused-Appellant and also he made further query to the Doctor-P.W.17, who conducted the post- mortem, stated as under in her evidence relating to the cause of death as; JCRLA No.47 of 2010 Page 6 of 14 “Opinion The cause of death:- The cause of death might be due to asphyxia. xxx xxx xxx.” 16. The deposition of P.W.17 in Paras-6 and 7 in her examination-in-chief and clarification in Para-8 of cross- examination having a direct bearing relating to the death in question is culled out hereunder; On 02.12.2004, the I.I.C., Khurda P.S., “6. made a query relating to the cause of death of the said female child. Accordingly, basing on the said query, I opined that the cause of death of Mama @ Manisha Begum, (the female child in question) was by throatling. This is my said report, vide Ext.5 and Ext.5/1 is my signature thereon. Such death can be occured by putting the 7. body in the water after throatling. The cause of death was throatling as there was asphyxia. Cross-examination by the S.D.C. 8. In case of throatling, external injury will be available on the neck. As there were tounge protruded, and bitten between the teeth, eyes protruded and blood stain discharged from the Nustril and interal organs congested, I came to the conclusion that the death was due to asphyxia and might be caused by throatling.” JCRLA No.47 of 2010 Page 7 of 14 17. Hence, there is no iota of doubt that the death of 5 year old girl, daughter of P.W.12 was homicidal in nature. 18. Admittedly, the case at hand is based on circumstantial evidence and one of the incriminating circumstances is on account of last seen theory. To fortify their accusation that the Appellant is the author of the crime, the prosecution has sought to rely on the evidence of P.Ws.2, 9, 12 and 15. 19. P.W.12 is the mother of the victim and the Appellant is her husband. Though in his examination U/s.313 Cr.P.C. he disowned his relationship with P.W.12 and the deceased Manisha Begum @ Mama, girl child about 5 years, as their daughter. 20. P.W.12 has stated that the Appellant is her husband and on that fateful day (28.07.2004), in the afternoon at about 3 P.M. the Appellant-accused took the deceased with him on the pretext of going to Koraput to the house of his brother-P.W.15 and on the same day in the evening, she got the news of deadbody of a female child floating in a well which she later on identified as that of her daughter. 21. She has also stated in her evidence that on the same night, brother of her husband (P.W.15) telephoned to paternal JCRLA No.47 of 2010 Page 8 of 14 uncle of the accused (Dada Sasura) as to whether her daughter died falling in the well. 22. It has been brought out from her in the course of examination that the accused was continuously abusing her during matrimony and she was constantly living in fear for her life and limb and of her children for which, she left her son in the care of her parents and the daughter was with her. She states that the accused was earlier telling that she cannot maintain the deceased. She candidly further states that she has not informed about such ill-treatment to the police and she has also stated in her cross-examination that since she never thought that notwithstanding the threats, the Appellant-husband would kill their daughter, she allowed her to go with him. “…………. I allowed my deceased daughter to go with the accused as I was not thinking that he would kill her, even though he was giving threatening to kill us……….” 23. P.W.2 is the co-villager. In his evidence, he has stated that on the date of incident, he had seen the accused-Appellant going with the deceased. The relevant extract of the statement of P.W.2 is quoted hereunder; JCRLA No.47 of 2010 Page 9 of 14 “xxx xxx xxx 4. On the date of incident, while I was in my pan shop, I had seen this accd. going with his daughter. This accd. was on visiting terms to my shop. xxx xxx xxx” 24. P.W.9 is another material witnesses, who had prior acquaintance with the Appellant, but did not know the Informant- P.W.12. 25. His evidence is of seminal importance in the case at hand and for better appreciation at the cost of brevity his examination- in-chief is extracted her under; “xxx xxx xxx 2. About two years back at 4 P.M. when I was grazing a cows inside a cashew field, situated at our village, I saw the accused was carrying a female child aged about 6 to 7 years. On his shoulder and the said child was wearing a white frock. On the next day, at about 10 to 11 A.M. I had gone to graze my cows and found that the said female child was floating inside a well of Subudhi Babu situated at Barasahi. Except this I do not know more about this case. xxx xxx xxx” Nothing material has been elicited in his cross examination. JCRLA No.47 of 2010 Page 10 of 14 26. P.W.15 is the brother of the Appellant. Though he has been declared hostile. Yet, as it is the settled law, his entire evidence need not be discarded on that count P.W.15 has stated that the accused- Appellant reached his house and told that his daughter died falling in a well. 27. The evidence of P.W.14, the wife of the P.W15-brother of the accused, throws light relating to the state of mind of the accused- Appellant. She has also been declared hostile. In her evidence, she has stated that the accused-Appellant was in a puzzled mind and he did not take food even if he was asked. 28. On an analysis of the evidence on record, it is clear that the accused took the deceased along with him and left their house on the pretext that he wants to go to his brother’s house. 29. The accused leaving his house along with the deceased is well established by the evidence of P.W.12, the Informant. 30. P.W.2 has seen the accused-Appellant along with the deceased, since he was a co-villager and had prior acquaintance with the deceased, who is the daughter of the accused and the informant. And, it has also been brought out by the prosecution JCRLA No.47 of 2010 Page 11 of 14 that one day prior to the occurrence, the accused-Appellant had been to his shop along with deceased. 31. From the evidence of P.W.9, prosecution has been able to prove that the deceased was with the accused on the relevant day around 4 P.M. and the next day, the deadbody of the child (daughter of P.W.12 and the accused-Appellant) was found floating. 32. The evidence of Doctor-P.W.17 relating to the time of death unerringly points to the time of death of the child at a time when she was with the accused-Appellant, as is established beyond any iota of doubt from the evidence of P.W.9. 33. The plea of defence is one of complete denial and false implication. It does not stand to reason that if a child accompanying an adult suffers accidental death as is being urged in the instant case, the adult would not make any attempt to seek help to save the child. Rather it is borne out from the evidence of P.W.15 that the accused told that his daughter fell into the well and did not even bother to intimate P.W.12, the mother. 34. The learned counsel for the Appellant, referring to the conduct of the accused-Appellant post occurrence, submits that JCRLA No.47 of 2010 Page 12 of 14 the accused did not make any attempt to hide himself and was all along present and the Appellant was taken into custody on 26.08.2004 from weekly Hat ought to be taken into account as the circumstance reflecting his innocence and it is his further submission that being overcome by grief and fear of false accusation, it is only but natural that the accused-Appellant did return to his village nor intimate the mother, P.W.12 about unfortunate death of her dauther. 35. In the face of the evidence on record including the statements of P.W.9 and the cause of death as stated by P.W.17, the defence argument as advanced has to be negated. 36. The accused has also not given any explanation relating to the accusation that he took the child with him who was later on found to be dead except bald denial and taking the plea in the background of his contention that he was never married to P.W.12 and deceased is not his daughter and because of failed marriage proposal of P.W.12 with him, he being falsely implicated. 37. Being conscious of the rigors of scrutiny in a case based on circumstantial evidence as laid down by the Apex Court in the JCRLA No.47 of 2010 Page 13 of 14 case of Sharad Birdhichand Sarda vrs. State of Maharashtra reported in (1984) 4 SCC 116 and subsequently followed by in the case of Raja Naykar vrs. State of Chhattisgarh (in Criminal Appeal No.902 of 2023 disposed of on 24.01.2024, 2024: INSC 56), this Court has no hesitation to hold that on the basis of evidence on record, the links of the chain circumstances are firmly intertwined to conclusively establish the guilt of the accused of causing death of his daughter Manisha Begum @ Mama and also attempting to cause disappearance of evidence. The analysis of evidence on record by the learned Court in seisin is found to be cogent excluding any hypothesis relating to the innocence of the accused. 38. Hence on a conspectus of the evidence on record, this Court does not find any merit in the appeal and the same stands dismissed. (V. Narasingh) Judge D. Dash, J : I agree. Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 09-May-2024 18:20:47 Orissa High Court, Cuttack Dated the 15th April, 2024 / Santoshi (D. Dash) Judge JCRLA No.47 of 2010 Page 14 of 14