Orissa High Court
Basu Munda vs State Of Orissa on 21 January, 2021
ORISSA HIGH COURT: CUTTACK
CRA No.25 of 2002
From the judgment of conviction and order of sentence dated 14.12.2001
passed by Shri A.K. Senapati, Sessions Judge, Keonjhar in Sessions Trial
Case No.3 of 1998.
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Basu Munda ......... Appellant
-versus-
State of Orissa ......... Respondent
For Appellant : Mr. Satya Narayan Mishra,
Amicus Curiae
For Respondent : Mrs. Saswata Patnaik (A.G.A.)
PRESENT:
SHRI S.K.MISHRA, JUDGE
AND
MISS S. RATHO, JUDGE
Date of judgment: 21.01.2021
S.K.Mishra, J. This is a case of nepoticide. The sole appellant has
been convicted by the learned Sessions Judge, Keonjhar for the
offence under Section 302 of the Indian Penal Code, 1860
(hereinafter referred as 'the Penal Code', for brevity) for having
committing murder of his own nephew in the night intervening
14/15.07.1997. His conviction and sentence to undergo imprisonment
for life passed by the learned Session Judge, Keonjhar in Sessions
Trial Case No.3 of 1998 on 14.12.2001 are assailed in this appeal.
2. The case of the prosecution, in short, is that the
appellant and father of the deceased happen to be brothers. They
reside in separate houses but in the same village. On 14.07.1997
evening, apprehending danger from the villagers, the appellant came
to the house of his elder brother and requested to stay there. He was
served with a dinner. He, the deceased and younger sister of the
deceased, namely, Surubali Munda, a young girl aged about 4 years,
at that time, slept in the kitchen of the house of the informant. On
the next morning, P.W.1, mother of the deceased, Smt. Raimani
Munda, knocked the door of the kitchen but the appellant did not
open the door. He gave out that he has committed murder of her son
Dabar Munda and will also kill anybody, who will try to enter into the
kitchen. Then neighbours were called, report was lodged before the
A.S.I. of Police, Suakati Out-post, who made a S.D. entry and took up
preliminary investigation by sending the report to the O.I.C., Sadar
Police Station, Keonjhar for registration of the F.I.R. He proceeded to
the spot, arrested the appellant, and examined the witnesses and
handed over the investigation to the C.I., S.K. Mahanty. The latter on
completion of investigation, submitted charge sheet against the
appellant.
3. The defence took the plea of denial of offence of
murder but in his statement under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter referred as 'the Code', for
brevity) he admitted that he slept inside the kitchen of that house in
the relevant night along with the deceased Dabar Munda, but he
denied to have committed murder of the deceased.
4. In order to prove its case, the prosecution examined
15 witnesses and led into evidence 12 Exhibits and one material
object i.e., 'tangia' being the weapon of offence. P.W.2, Ghasia
Munda is the informant in this case. P.W.1, Smt. Raimani Munda is
the first witness, who could know about the murder of the deceased
and refusal of the appellant to open the door of the kitchen. P.W.3,
Sukura Munda, P.W.4, Mata Munda, P.W.5, Dutia Mahakud are the
other witnesses, who came to the spot on being informed by the
P.Ws.1 and 2 and found the appellant locked up inside the room and
was not opening the same and was not allowing anybody to enter the
room. P.W.5, Dutia Mahakud, P.W.6, Judhistir Barik, P.W.7 Budha
Munda and P.W.10, Narottam Dangua are all formal witnesses being
the witnesses to the seizures. P.W.8, Dr. Pratap Chandra Rana has
conducted the postmortem examination on the dead body of the
deceased. P.W.9, Dr. Chita Ranjan Sethi, on police requisition,
conducted test determining the blood group of Basu Munda to be 'B'
Positive. P.W.11, Birbar Pradhan, Constable-21, escorted the dead
body of the deceased to District Head Quarters Hospital, Keonjhar for
conducting postmortem examination. P.W.12, A.S.I. Dhaneswar Sahu
was the Officer-In-Charge of Suakati Out-post. He received the report
of P.W.2 and took up preliminary investigation. P.W.13, Bainshnab
Charan Biswal is the Scientific Officer of District Forensic Science
Laboratory, Keonjhar. He has collected physical clues from the place
of occurrence. P.W.14, Maheswar Mahanta is another police constable
in whose presence seizure was made by the O.I.C., Suakati Out-Post,
P.W.15, Susil Kumar Mohanty was the C.I. Sadar, Keonjhar. He has
conducted the investigation of the case and submitted charge sheet
against the appellant.
The defence has not examined any witness on its
behalf.
5. Basing on the evidence of P.Ws.1 and 5 and the
attending circumstances like findings of the doctor conducting
postmortem examination, his opinion on examination of the weapon
of offence, finding of the blood group of human group 'B' on the axe,
khajuripati (met), blood stains on saree and half shirt, and half pant
of the deceased, the learned trial judge has come to the conclusion
that the prosecution has established its case beyond all reasonable
doubt and proceeded to convict the appellant under Section 302 of
the Penal Code and sentenced him to undergo imprisonment for life.
6. Learned Amicus Curiae, Mr. Satya Narayan Mishra
does not dispute the findings of the learned Sessions Judge that the
death of the deceased was homicidal in nature. In fact, the evidence
of the doctor P.W.8 and his opinion on examination of the weapon of
offence i.e., M.O.-I together with the contents of the postmortem
examination report Exhibit-3 conclusively established that death of
the deceased was homicide in nature. The learned Amicus Curiae,
however, disputes the complicity of the appellant in commission of
the crime. He draws attention of the Court to the evidence of P.Ws.1
and 2, the parents of the deceased, who have stated on oath that
after their dinner, the appellant slept with their son Dabar and
daughter Surubali Munda in one room, which was also used as
kitchen. It is argued by the learned Amicus Curiae that if Surubali
was present inside the kitchen where the alleged offence took place,
then the appellant cannot be made liable for commission of the
offence in view of the fact that the appellant cannot be held to be
alone with the deceased at the time of commission of offence.
7. Mrs. Saswata Patnaik, learned Additional Government
Advocate, on the other hand, submits that though Surubali has not
been examined in this case, it will not affect the case of the
prosecution as P.W.2 has categorically stated in his Examination-In-
Chief that Surubali was about 3 years younger to Dabar. At that time,
Dabar, the deceased, was aged about 7 years. The occurrence took
place in night between 14/15.7.1997 and the evidence was recorded
in July, 2001. By the time, the investigation was conducted, the
younger sister of the deceased was only 4 years old. So, the
contention of the learned Amicus Curiae that the appellant was not
alone with the deceased will not be of much help to the appellant.
8. We are of the view that, because of the nature of
injury found on the neck of the deceased, which was stated to be
caused by weapon of offence i.e., M.O.-I being a 'tangia', could not
have been caused by a small child aged about 4 years old. Keeping in
view the peculiar facts of the case and the fact that Surubali Munda
was very young girl, aged about 4 years, at the time of occurrence,
her non-examination is also of no consequence in this case.
9. We have carefully examined the evidence of P.Ws.1
to 5. It is well established by the prosecution that in the previous
night, the appellant came to the house of P.W.2. He expressed his
apprehension about the danger to his life from other villagers.
Therefore, he was asked to stay in their house and P.W.1 served
dinner to him. He, the deceased, and Surubali slept inside a room,
which was also used as kitchen. On the next day, P.W.1 knocked the
door and the appellant did open and threatened her stating that he
has already killed Dabar. It is also apparent from the record that
P.W.2 also came and other neighbours were called but the appellant
did not open the door. So, ASI, Suakati Out-post was informed. He
came and apprehended the appellant.
10. Keeping in view the clinching evidences, though, it is
not direct evidence in the sense that none of these witnesses has
seen the actual commission of crime, we are of the opinion that the
prosecution has established its case beyond all reasonable doubt.
Hence, we are not inclined to interfere with the findings recorded by
the learned Sessions Judge, Keonjhar. In the result, the appeal is
dismissed.
Accordingly, the CRA is disposed of.
The Trial Court Record (T.C.R.) be returned back to
the trial court forthwith.
As restrictions are continuing for COVID-19, learned
counsel for the parties may utilize the soft copy of this judgment
available in the High Court's website or print out thereof at par with
certified copies in the manner prescribed, vide Court's Notice
No.4587, dated 25.03.2020.
..................................
S.K.Mishra, J.
S.Ratho, J. I agree
...............................
S. Ratho, J.
Orissa High Court, Cuttack
The 21st January, 2021/TDTUDU
