The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No. 54 of 2010 An appeal from the judgment and order dated 04.08.2009 passed by the Addl. Sessions Judge, Nuapada in Sessions Case No.03 of 2008. --------------------- 1. Nandalal Pandey 2. Nathu Pandey ....... Appellants -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Akhaya Kumar Beura Amicus Curiae For Respondent: - Mr. Jateswar Nayak Addl. Govt. Advocate --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MISS JUSTICE SAVITRI RATHO --------------------------------------------------------------------------------------- -------------------------------- Date of Hearing and Judgment: 20.03.2025 --------------------------------------------------------------------------------------- -------------------------------- JCRLA No. 54 of 2010 Page 1 of 26 By the Bench: The appellants Nandalal Pandey and Nathu Pandey along with accused Debakibai Das faced trial in the Court of learned Additional Sessions Judge, Nuapada in Sessions Case No.03 of 2008 for the offence punishable under section 302/34 of the Indian Penal Code on the accusation that on 21.08.2007 night at about 9.00 p.m. at Village Karchul, in furtherance of their common intention, they committed murder of Nilakantha Sabar (hereinafter ‘the deceased’). They were further charged under section 201 of the Indian Penal Code on the accusation that knowing that the offence of murder has been committed, they caused disappearance of evidence by disposing of the dead body in Dadarpada well, with intent to screen themselves from the legal punishment. The learned trial Court vide impugned judgment and order dated 04.08.2009, while acquitting the co-accused Debakibai Das of all the charges, found the appellants guilty of the offences charged and sentenced each of them to undergo imprisonment for life under section 302/34 of the Indian Penal Code, however no separate sentence was awarded for their conviction under section 201/34 of the Indian Penal Code. JCRLA No. 54 of 2010 Page 2 of 26 Prosecution Case: 2. The prosecution case, in short, is that Nuapada P.S. U.D. Case No. 23 dated 24.08.2007 was registered on the report of one Mohd. Hussein of village Malibhata that while he was going to his field at Dadarpada, he found one gunny bag was floating in his well. P.W.15 Harekrushna Mallik, S.I. of Police of Nuapada Police Station enquired into the U.D. case and during course of such enquiry, he proceeded to the spot and on 25.08.2007, the gunny bag was taken out of the well and after opening the gunny bag, it was found that there was a dead body of a male person aged about 32 to 35 years and two big size stones were inside the gunny bag with the dead body. P.W.15 conducted inquest over the dead body in presence of the Executive Magistrate and other witnesses and inquest report vide Ext.2 was prepared. During course of inquest, it was found that there were cut injuries on the right side neck of the dead body and the skin of the dead body was completely removed on account of decomposition. P.W.15 sent the dead body to District Headquarters Hospital, Nuapada for autopsy. The manner in which the dead body was found inside the well, P.W.15 came to the opinion that somebody after committing murder of the person concerned had put the dead body inside the gunny bag JCRLA No. 54 of 2010 Page 3 of 26 along with two heavy stones and threw the same inside the well so that the dead body would not float in the water. During course of enquiry, P.W.15 ascertained that the dead body was that of Nilakantha Sabar (deceased) as he was not seen in the village for last three to four days. During further enquiry, the complicity of the appellants so also the lady
Facts
accused Debakibai Das came to the fore and accordingly, first information report (hereinafter ‘F.I.R.’) was lodged by P.W.15 before the officer in-charge of Nuapada Police Station, on the basis of which Nuapada P.S. Case No.115 dated 25.08.2007 was registered under sections 302/201/34 of the Indian Penal Code against the appellants so also the co-accused Debakibai Das. P.W.14, the officer in-charge himself took up investigation of the case and examined the witnesses, visited the spot, prepared the spot map (Ext.22), arrested the appellants Nandalal Pandey so also co-accused Debakibai Das. While co- accused Debakibai Das gave recovery of the handle of a Tangia, on the basis of leading to discovery statement of the appellant Nandalal Pandey, the police party and the witnesses came to the pond and one wooden Badi (M.O.I) was seized at his instance as per seizure list Ext.1. The I.O. also seized blood-stained earth and sample earth as per seizure list Ext.8 and sent M.O.I to the JCRLA No. 54 of 2010 Page 4 of 26 Medical Officer who conducted the post mortem examination for his opinion, received the opinion along with the post mortem report and the appellant Nathu Pandey was arrested on 28.08.2007 and was forwarded to Court. On completion of investigation, charge sheet was submitted. Framing of Charges: 3. Upon submission of the charge sheet, the case was committed to the Court of Session, where the learned trial Court framed charges against the appellants along with the co-accused as aforesaid and all of them pleaded not guilty and claimed to be tried. Accordingly, the sessions trial procedure was resorted to establish their guilt. Prosecution Witnesses, Exhibits and Material Objects: 4. In order to prove its case, the prosecution examined fifteen witnesses in total. P.W.1 Jabarsingh Sabar is a co-villager who stated that on 25.08.2007, when he was taking bath, at that time the accused Debaki came to him and told him that she was in deep trouble and sought for his advice and told him that she kept the deceased as her second husband who had been murdered by some persons by axe and knife and that the culprits packed the JCRLA No. 54 of 2010 Page 5 of 26 dead body of the deceased in a gunny bag and threw that bag in a well belonging to some Khan. He further stated to have disclosed the matter before the villagers and that a meeting was convened in the village and the accused Debaki told the villagers that both the appellants killed the deceased by axe and threw the dead body in the well. P.W.2 Ramsingh Sabar is the elder brother of the deceased who stated that the deceased remained as husband of accused Debaki in her house continuously for six years till he died and that he identified his body from the photograph shown by the police. P.W.3 Nanda Kumar Sahu stated that as per the direction of the police, the dead body of the deceased was guarded which was inside a well and wrapped in a gunny bag and on the next day morning, it was recovered and cut injury was found on the neck of the dead body and photographs were taken. P.W.4 Sobharam Sabar is a co-villager of the appellants and stated that he attended a meeting convened in the village and in that meeting, accused Devaki disclosed that JCRLA No. 54 of 2010 Page 6 of 26 accused Nandalal and Nathu murdered the deceased and threw the dead body in a well after putting the same in a gunny bag. P.W.5 Santaram Sabar is also a co-villager of the appellants and he stated that on 25.08.2007, villagers of his village as well as the villagers of Maulibhata assembled near a well of a Muslim where the dead body of the deceased was found wrapped in a gunny bag. In the evening hours of the date of occurrence, the police came and suspecting some foul play, told them to guard the well and on the next day, the police, photographer and others came and lifted the gunny bag from the well and opened it and a dead body of a male person was found. P.W.6 Hirasingh Sabar has stated that the accused Devaki disclosed in a meeting that the appellants killed the deceased by means of Tangia and threw the body in a well putting it in a gunny bag. Before the police, the accused Devaki confessed her guilt and told that she would give discovery of iron portion of tangia and knife and accordingly, she along with appellant Nandlal led the police to her house and gave recovery of the same. P.W.7 Sadanand Sahu stated that when the dead body of the deceased was removed from the well and taken to JCRLA No. 54 of 2010 Page 7 of 26 Nuapada, he could identify that the dead body was that of the deceased as the deceased was close to him and he also told the police and family members i.e. his brothers that the dead body belonged to Nilakantha. P.W.8 Dr. Narendra Kumar Meher was posted as the Medical Officer, District Headquarters Hospital, Nuapada. On police requisition, he conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.12. He also examined the appellant Nandlal and accused Devaki on police requisition and proved the reports vide Exts.14 and 15 respectively. P.W.9 Kishan Das is the minor son of the deceased and the lady accused and he is an eye witness to the occurrence. He stated that the appellants Nandlal Pandey and Nathu Pandey killed his father in the middle part of 2007 at 9.00 p.m. in the night in his house. He further stated that in that night, the appellants brought liquor and chicken to his house and told his father to arrange loan and his father agreed. The deceased and the appellants took chicken and liquor. The appellants took the deceased by giving push to their inner room and laid him on a cot. The appellant Nathu brought out a knife (MO.VII) and dealt blow on the deceased. When the lady accused obstructed the JCRLA No. 54 of 2010 Page 8 of 26 blows, she sustained injuries on her palm. The knife blows struck the neck of the deceased. Appellant Nandlal also dealt Tangia blows on the neck of the deceased and after receiving the blows, the deceased died at the spot. P.W.10 Jaisya Nayak was working as a constable who had taken the dead body of the deceased to the hospital for post-mortem examination. P.W.11 Mohd. Hussein has stated that on 24.08.2007, he had been to his field and smelled something foul and asked the villagers and all of them came to a well of his field and noticed something was floating wrapped in gunny bag. The villagers present on the spot suggested him to report the matter at the police station and accordingly, he lodged a report vide Ext.20 and further stated that on the next day, the dead body was recovered from the gunny bag by police. P.W.12 Bijay Kumar Singh was working as A.S.I. of Police, attached to Nuapada Police Station and on that day being directed by the O.I.C., he seized the wearing apparels as per seizure list Ext.4. P.W.13 Padmanav Sahu stated that when the dead body was recovered packed in a gunny bag from the well of JCRLA No. 54 of 2010 Page 9 of 26 Hussain Khan, the police conducted inquest over the dead body in his presence. P.W.14 Prafulla Bagarty was the officer in-charge of Nuapada Police Station, who is the Investigating Officer of the case. P.W.15 Harekrushna Mallik was the S.I. of Police attached to Nuapada Police Station and he received the complaint from Mohd. Hussein (P.W.11) and conducted U.D. case enquiry and lodged the first information report (Ext.21). The prosecution exhibited twenty four documents. Ext.1 is the seizure list of wooden stick, Ext.2 is the inquest report, Ext.3 is the seizure list of stones, Ext.4 seizure list of Chadi, Ext.5 is the seizure list of blood group report, Ext.6 is the seizure list of axe and knife, Ext.7 is the seizure list of plastic chappal, Ext.8 is the seizure list of sample blood stain earth, Ext.9 is the seizure list of Xerox copy of ROR, Ext.10 is the seizure list of xerox copy of patta in the name of Mohd. Hussein, Ext.11 is the confessional statement before police by accused Debakibai, Ext.12 is the post mortem report, Ext.13 is the opinion of query by P.O.8 on M.O.I, Ext.14 is the injury report of accused Nandalal Pandey, Ext.15 is the injury report of accused Debakibai Das, Ext.16 is the opinion of query by P.W.8 on JCRLA No. 54 of 2010 Page 10 of 26 M.O.VII, Ext.17 is the blood grouping report of accused Debaki, Ext.18 is the report regarding blood grouping of accused Debaki, Ext.19 is the report of P.W.8 regarding collection of 10 digits of dead body, Ext.20 is the U.D. F.I.R., Ext.21 is the written report of P.W.15, Ext.22 is the stop map, Ext.23 is the confessional statement before police by appellant Nandlal and Ext.24 is the Chemical Examination Report. The prosecution also proved nine material objects. M.O.I is the wooden stick of cot, M.O.II is the five pieces of gunny bag, M.O.III is the two big stones, M.O.IV is the plastic rope, M.O.V is the chadi, M.O.VI is the Tangia, M.O.VII is the knife, M.O.VIII is the plastic chappal and M.O.IX is the handle of Tangia. Defence Plea: 5. The defence plea of the appellants was one of denial and the appellant Nathu Pandey took a specific plea that on the date of occurrence, he had been to his daughter’s house and he knew nothing about the occurrence. Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as documentary evidence on record, came to hold that the JCRLA No. 54 of 2010 Page 11 of 26 deceased Nilakantha was not seen in the village from the occurrence day till his dead body was found from the well and that is a strong circumstance against the appellants. The learned trial Court taking into account the evidence of the doctor (P.W.8) came to hold that the deceased had met a homicidal death and the evidence of P.W.9, the child witness was accepted by the learned trial Court as an eye witness to the occurrence. The learned trial Court came to the conclusion that the appellants had prior concert and pre-arranged plan to kill and shared their common intention in disposing of the dead body with an attempt to frustrate the course of justice and therefore, the appellants were found guilty under sections 302/201/34 of the Indian Penal Code. However, it was held that the prosecution has failed to establish the charges against the lady accused Debakibai Das. Accordingly she was acquitted of all the charges. Contentions of the Parties: 7.
Legal Reasoning
discussed above, we are of the view that the photograph of the dead body was taken during the U.D. case inquiry and it was placed before P.W.2, the elder brother of the deceased and he has identified the dead body to be that of the deceased. P.W.8, the doctor though noticed some features regarding absence of skin on the major part of the body and found maggots over the chest and neck and has stated that the dead body which was sent to him was not capable of being identified, but in view of the evidence of P.W.2 and P.W.7, we JCRLA No. 54 of 2010 Page 16 of 26 are of the view that the prosecution has successfully established the identity of the dead body to be that of the deceased. Therefore, the contention of the learned Amicus Curiae that the prosecution has failed to establish the dead body recovered from the well in Dadarpada to be that of the deceased, cannot be accepted. 10. Now, coming to the next aspect whether the prosecution has proved the death of the deceased to be homicidal in nature, we find that apart from the inquest report (Ext.2), the evidence of P.W.8, the doctor who conducted post mortem examination is very clear. P.W.8 noticed that there were six numbers of antemortem wounds over the neck of the deceased. The injuries are as follows: (1) Just below the mandible of size 5cm x 2cm x 2cm irregular margin; (2) Centre of neck 4" x 3cm x 2" trachea and oesophagus were cut down; (3) 3cm from the centre of the second wound of size 2" x 3" x 2" in right side artery vein muscle was cut down; (4) 2 cm from the 3rd wound of size 4" x 2cm x 2"; (5) & (6) wound 2cm apart from the 4th wound. JCRLA No. 54 of 2010 Page 17 of 26 P.W.8 further opined that all the wounds are on the right side of the neck, all these injuries might be due to sharp cutting weapon and the cause of death was due to injury to the large vessels, trachea and larynx and the death was homicidal in nature and all the injuries in the neck taken together are sufficient in the ordinary course of nature to cause death. The post mortem report has been marked as Ext.12. Learned Amicus Curiae has also not challenged the homicidal death aspect and therefore, in view of the evidence of P.W.8 coupled with the post mortem report Ext.12 and the inquest report, we are of the view that the learned trial court is justified in holding that the prosecution has established the homicidal death of the deceased. Evidence of eye witness (P.W.9): 11. The star witness P.W.9 Kisan Das deposed in trial Court on 25th September 2008, which was a year after the occurrence. At that point of time, he was a student in the High School. Some formal questions were put to P.W.9 by the learned trial Court to test his intellectual capacity and understanding and on the basis of the answers given by the witness, the learned trial Court came to hold that P.W.9 understood the questions and JCRLA No. 54 of 2010 Page 18 of 26 was giving rational answers. Treating this witness to be a competent witness, his evidence was recorded. We have perused the questions put by the learned trial Court and answers given by P.W.9. We are of the view that the learned trial Court has taken sufficient precautions before recording the evidence of the child witness and the learned trial Court rightly held the child witness to be a competent one. P.W.9 in his evidence has stated that the co-accused Debakibai Das was his mother and the deceased was his father. The occurrence took place in the night in the middle part of 2007 in his house. He further stated that the appellants told the deceased to arrange some loan to which the deceased agreed and thereafter chicken curry was prepared and two appellants and deceased took chicken curry and liquor and then the deceased vomited and then both the appellants took the deceased by giving push to the inner room and laid him on a cot and thereafter the appellant no.2 Nathu Pandey brought out a knife and dealt blows to the neck of the deceased. At that time, his mother (co-accused Debakibai Das) obstructed the blows for which she sustained injuries on her palm and the appellant no.1 Nandalal Pandey dealt tangia blow on the neck of the deceased and after receiving such blows, the deceased died at the spot. He JCRLA No. 54 of 2010 Page 19 of 26 further stated that both the appellants put the dead body of the deceased in a gunny bag and took it away from their house and since that day, he could not trace his father. In the cross-examination, P.W.9 has stated that the appellant no.2 Nathu Pandey dealt two to three knife blows to the throat of the deceased and appellant no.1 Nandalal Pandey dealt tangia blow to the throat of the deceased. Nothing has been elicited in the cross-examination to doubt the veracity of the eye witness and as such his evidence has remained unshaken. The evidence of P.W.9 gets corroboration from the evidence of the doctor (P.W.8), who noticed a number of injuries which could have been caused by sharp cutting weapon on the right side of the neck of the deceased. The doctor also found that one incised wound on the left hand near the third finger of the lady accused Debakibai Das and it was opined to be simple in nature but could have been caused by a sharp cutting weapon. The knife (M.O.VII) which was seized was sent to P.W.8 for his examination and opinion and he has opined that the injury noticed on co-accused Debakibai Das could be caused by M.O.VII and the report has been marked as Ext.16. JCRLA No. 54 of 2010 Page 20 of 26 The evidence of P.W.9 was attacked on the ground that he did not disclose about the incident before anybody and for the first time disclosed the same before the Investigating Officer six to seven days after the incident. We found that the F.I.R. was lodged on 25.08.2007 and the statement of P.W.9 under section 161 of Cr.P.C. was recorded on 27.08.2007. P.W.9 has stated in his cross-examination that they could not come out of their house for four days as the appellants Nandlal Pandey and Nathu Pandey put lock in their house from outside. He further stated that he along with her sister and mother (co-accused Debakibai Das) were called to the police station where third degree was applied to his mother. Law is well settled that so far as the children are concerned, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they do not have sufficient understanding. Neither can any precise rule be laid down with respect to the degree of intelligence or knowledge which will render a child a competent witness. Competency of the child witness can be ascertained by questioning him/her to find out his intelligence to understand the occurrence witnessed and ability to speak the truth before the Court and thereby if his/her statement inspires confidence, it can JCRLA No. 54 of 2010 Page 21 of 26 be relied upon even without corroboration. Competency of a child witness cannot be questioned if his evidence is otherwise probable and true. In view of section 118 of the Evidence Act, all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions due to tender years etc. Competency to testify depends on ability to understand questions and to give rational answers. It depends on the capacity and intelligence of the child witness, his appreciation of difference between the truth and falsehood as well as his duty to speak truth. No doubt the evidence of the child witness is to be taken with great caution as they are prone to tutoring. However, nothing has been brought out in the cross-examination of P.W.9 that he had been tutored by anybody to give his statement either before the Police or the learned trial Court. The manner in which P.W.9 has deposed about the occurrence in examination- in-chief and also faced and stood the test of searching cross- examination by the defence counsel, we are satisfied about his competency. The evidence of P.W.9 appears to be clear, cogent, trustworthy and above board. Therefore, we are of the view that JCRLA No. 54 of 2010 Page 22 of 26 the learned trial Court has rightly placed reliance on the evidence of P.W.9 particularly when it is getting corroboration from the medical evidence. The evidence of P.W.9 that the dead body was kept in a gunny bag is also getting corroboration from the other evidence on record that the dead body was recovered from the well in a gunny bag. Extrajudicial Confession by accused Debakibai Das in the village meeting: 12. It appears from the extrajudicial confession by accused Debakibai Das in village meeting that it is exculpatory in nature. In case of Suresh Budharmal Kalani @ Pappu Kalani -Vrs.- State of Maharashtra reported in 1998 (4) Crimes 1 (SC), it is held that a bare perusal of the statement of the accused makes it abundantly clear that it is self-exculpatory and hence inadmissible in evidence as ’confession’. In case of Gunanidhi Moharana -Vrs.- State reported in (1993) 6 Orissa Criminal Reports 158, it is held that the requirement of section 30 of the Evidence Act is that before it is made to operate against the co-accused, it should be strictly established. In other words, what must be before the Court should be a JCRLA No. 54 of 2010 Page 23 of 26 confession proper and not a mere circumstance or information which could be an incriminating one. Secondly, it being the confession of the maker, it is not to be treated as evidence within the meaning of section 3 of the Act against the non-maker co-accused and lastly, its use depends on finding other evidence so as to connect the co-accused with the crime and that too as a corroborative piece. It is only when the other evidence tendered against the co-accused unmistakably points to his guilt then the confession duly proved could be used against such co-accused if it appears to affect him as lending support or assurance to such other evidence. It is only when a person admits guilt to the fullest extent and exposes himself to the pains and penalties provided for his guilt, there is a guarantee for his truth and the legislature provides that his statements may be considered against his fellow accused charged with the same crime. In that case the Hon’ble Judges after reading Ext. 24 which is the confession of accused Gobinda, held that there was no self- implication and in fact he has tried to extricate himself by stating that he was merely a witness to the occurrence and was not a participant. In case of Champa Rani Mondal -Vrs.- State of W.B. reported in 2001 Supreme Court Cases (Criminal) JCRLA No. 54 of 2010 Page 24 of 26 1514, it is held that exculpatory confession is inadmissible in evidence and conviction cannot be based on such confession. Even though no importance can be attached to the extrajudicial confession made by the lady co-accused Debakibai Das in the village meeting as it is exculpatory in nature, but we are of the view that the learned trial Court has rightly found both the appellants guilty of the offence charged since in view of the evidence of P.W.9 and other evidence, it is clear that not only the appellants committed murder of the deceased but also tried to cause disappearance of evidence by disposing of the dead body in the Dadarpada well with intent to shield themselves from legal punishment. Accordingly, the conviction of the appellants under sections 302/201/34 of IPC is upheld. The Jail Criminal Appeal is dismissed. 13. Before parting with the case, we would like to put on record our appreciation for Mr. Akhaya Kumar Beura, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.10,000/- (rupees ten thousand only). This Court also JCRLA No. 54 of 2010 Page 25 of 26 appreciates the valuable help and assistance provided by Mr. Jateswar Nayak, learned Additional Government Advocate. Trial Court records, if received be sent back to the concerned Court along with a copy of the judgment forthwith. .............................. S.K. Sahoo, J. ................................ Savitri Ratho, J. Orissa High Court, Cuttack The 20th March 2025/Puspa/Sukanta Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Mar-2025 14:36:45 JCRLA No. 54 of 2010 Page 26 of 26
Arguments
Mr. Akyaya Kumar Beura, learned Amicus Curiae appearing for the appellants contended that there is no clinching material available on record to show that the dead body which was recovered from the well in Dadarpada was that of the deceased Nilakantha Sabar. According to him, the dead body was identified from the photograph by P.W.2, who is the elder JCRLA No. 54 of 2010 Page 12 of 26 brother of the deceased but the photograph was not proved during trial. He further argued that the evidence on record particularly that of P.W.8, the doctor who conducted post mortem examination would indicate that from the body, all the skin was absent except on both the feet and maggots were seen over the upper part of chest and neck and therefore, it cannot be said that the prosecution has successfully established the identity of the dead body to be that of the deceased. He further argued that the star witness on behalf of the prosecution is a child witness, who was the son of the lady co-accused who faced trial and got acquitted and the said child witness disclosed about the occurrence six to seven days after the incident and before disclosing it to the investigating officer, he had not disclosed about the same before anyone and the belated disclosure creates doubt about the truthfulness of the version of P.W.9. Learned counsel further argued that even though on the basis of the doctor’s evidence, the prosecution can be said to have proved that it is a case of homicidal death, but in view of the shaky nature of evidence available on record and absence of clinching evidence relating to the identification of the dead body and belated disclosure of the child witness who can be easily tutored to depose against the appellants shielding his mother, the co- JCRLA No. 54 of 2010 Page 13 of 26 accused, it would be unsafe to base conviction of the appellants on such evidence and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. 8. Mr. Jateswar Nayak, learned Additional Government Advocate on the other hand supported the impugned judgment and submitted that the evidence of the child witness (P.W.9) has practically remained unchallenged and his evidence gets corroboration from the medical evidence. The statement of P.W.9 has been recorded two days after the registration of the F.I.R. and therefore, it cannot be said that there is inordinate delay in disclosure by P.W.9 about the occurrence. He further argued that P.W.2 being the elder brother of the deceased has identified the dead body by seeing the photograph so also P.W.7, who is a co- villager of the deceased and present at the time of recovery of the dead body. Merely because the photograph shown to P.W.2 could not be proved during trial, the same cannot be a ground to discard the evidence of identification of the dead body to be that of the deceased, more particularly when the witnesses like P.W.3 has stated that police took the photographs of the dead body which is also the evidence of P.W.15, the police officer who conducted U.D. Case enquiry and the said evidence has remained unchallenged. He argued that the learned trial Court JCRLA No. 54 of 2010 Page 14 of 26 has rightly found the appellants guilty and therefore, the impugned judgment and order of conviction should not be interfered with. Discussion and analysis of evidence: 9. Adverting to the contentions raised by the learned counsel for the respective parties, we shall first deal with the contention regarding the identification of the dead body. P.W.2, the elder brother of the deceased has stated that he was called to the police station and the police showed him a photograph and he identified the dead body to be that of his brother Nilakantha Sabar (deceased). In the cross- examination, he has stated that he has not seen the dead body of Nilakantha. Though learned defence counsel has given suggestion to P.W.2 that he had not identified the photograph of Nilakantha in the police station, but he has denied the same. From the evidence of P.W.3, it appears that the photograph of the dead body was taken and no suggestion has even been given to P.W.3 that no such photograph has been taken. P.W.5 has stated that after the matter was reported to the police, the police came to the village with photographer JCRLA No. 54 of 2010 Page 15 of 26 and the gunny bag was lifted from the well and it was opened and then the photographer took the photographs. No suggestion has been given that no photograph of the dead body was taken. P.W.7 was close to the deceased and he stated that the dead body that was recovered from the well was that of the deceased. P.W.15, the informant who is also the S.I. of Police has stated that during course of U.D. Case inquiry, he took photographs of the dead body and the evidence of this witness has also remained unchallenged. Though the photographs of the dead body have not been proved during the trial, but in view of the evidence