Bhaskar @ Ganeswar Patabandha vs State Of Odisha
2021 Latest Caselaw 10944 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

            JAIL CRIMINAL APPEAL No.4 of 2014

(From the judgment dated 21st December, 2013 passed by Miss Namita
Das, learned Additional Sessions Judge, Rairangpur in S.T. Case No.14
of 2012)


 Bhaskar @ Ganeswar Patabandha          ....               Appellant

                                      -versus-
 State of Odisha                        ....             Respondent


Advocate(s) appeared in this case:-

       For Appellant        : Mr. Prem Kumar Mohanty, Advocate

      For Respondent        : Mrs. Saswata Patnaik, A.G.A.


            CORAM: THE CHIEF JUSTICE
                   JUSTICE B.P. ROUTRAY
                            JUDGMENT

th 26 October, 2021 B.P. Routray, J.

1. The Appellant has been convicted and sentenced to life imprisonment for committing murder of a young child aged about 2 and ½ years. He has also been sentenced for offence under Section 201 of the Indian Penal Code (I.P.C.) by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.14/2012.

2. The Appellant is an old man aged about 62 years residing in village Sundhal. The deceased Anirudha is the grandson of the

informant - Sasi Bhusan Si (P.W.3) i.e. the son of his daughter Manorama Dhal who married to Surjit Dhal of village Kumbhirda. The deceased child is their son. On the occasion of Kali Puja in the year 2011, both Manorama and Surjit (P.Ws.9 & 8) had been to the house of the informant along with their son (the deceased). On 26 th October, 2011, on the Kali Puja day, when the deceased was playing in the evening at around 7.00 p.m. he was found missing. Thereafter the informant and other villagers searched for the deceased everywhere, but could not find. At about 2.45 A.M. when P.W.3 along with others was searching for the deceased, they heard a sound coming from the well situated in the Bari of the Appellant and they run towards the well. They saw the Appellant by torchlight standing near the well in bare body wearing a full pant folded at the bottom. They further saw the dead body of the deceased floating in water of the well. The dead body was immediately lifted up and the witnesses found that his tongue and left hand little finger were severed. Thereafter the Appellant went away to his house.

3. The dead body of the deceased was taken by his parents to their house at village Kumbhirda and was cremated on 27th October, 2011. On the next day, P.W.3 convened a meeting in his village, i.e., at Sundhal. In the said meeting, the Appellant did not participate. The meeting was deferred to the afternoon and the Appellant attended the meeting this time. In the said meeting, the Appellant confessed to have killed the deceased for human sacrifice before Kali Mata.

4. Two days thereafter P.W.3 lodged the written report under Ext.1 which was registered as Gorumahisani P.S. Case No.54 dated 30th October, 2011 and the investigation was taken up by P.W.11, the then Inspector-in-charge. In course of investigation, the half burnt bones of the deceased were seized from the backyard of the house of the parents in village Kumbhirda. The appellant was arrested on 31st October, 2011. The seized ash and half burnt bones were sent for forensic examination to the Department of Forensic, Medicine and Toxicology of SCB Medical College and Hospital, Cuttack. On completion of investigation, charge-sheet dated 26th February, 2012 was submitted against the appellant for commission of offence under Sections 302/201, I.P.C.

5. The Appellant denied the charges and took the plea that he has been falsely implicated due to previous enmity regarding land dispute with the informant.

6. Prosecution examined 11 witnesses in support of its case. Amongst said witnesses, P.W.11 is the Investigating Officer, P.W.3 is the informant, P.Ws.8 and 9 are the parents of the deceased, P.W.10 is the seizure witness of half burnt bones and ash. P.Ws.1, 2, 4, 5, 6 and 7 are co-villagers of the informant and some of them are the relatives of the informant.

Besides the oral evidence, prosecution adduced six documents under Exts.1 to 6.

7. The Appellant did not adduce any evidence in his defense.

8. Admittedly, no direct witness is there to support prosecution case. Prosecution depends on the circumstances to prove its case. The circumstances as projected by the prosecution are that, the Appellant was present near the well in bare body, secondly severing the tongue and left hand little finger of the deceased suggests about human sacrifice and thirdly, the appellant made extra judicial confession before the villagers in the meeting to have killed the deceased for human sacrifice. These are the circumstances utilized against the Appellant to substantiate his conviction. Further the motive for murder has been accepted as human sacrifice before Kali Mata on the Kali Puja day. The learned trial judge has observed that it is within the common knowledge that the little finger and tongue were severed for the purpose of sacrifice only and thereby established the motive of murder against the accused.

9. Here is a case where the dead-body of the victim was not available for post mortem examination. The only half burnt bones and ash were seized and sent for forensic examination. As per the forensic report under Ext.6, the opinion was that those half burnt bones were all of human origin. Nothing more except this could be ascertained, which means the cause of death is unascertained.

10. For concluding that a human being has been murdered, it is very much essential to establish that the death is homicidal in nature. Here it is not the case that the dead body was destroyed by the Appellant in further course of crime. But it is the admitted case that the dead body which was recovered by the informant and other villagers was taken by the parents to their village and cremated by burning in their own

backyard on the next day of the occurrence. So no reason can be attributed to the deceased to draw any inference against him that the cause of death could not be established due to his further action or conduct. In this regard some other suspicious circumstances are seen on the part of the prosecution as discussed hereinafter.

11. It reveals from the evidence of P.W.11 - the I.O., that, U.D. Case No.8/2011 was registered on 27th October, 2011 on the report of Shri R.C. Satpathy, Sub-Inspector of Police. The prosecution has not produced the record of that UD case nor the written report lodged by Shri R.C. Satpathy to register the UD case. The prosecution also did not bother to examine the informant of that UD case. The reason that prompted the prosecution to register a UD case instead of a cognizable case still remains a mystery, despite the facts that the dead body was found from the well having severance of the tongue and the little finger.

12. The other important reason concerning the cause of death is that, as per the statement of P.Ws.1, 2 and 3 and other villagers, they immediately run towards the well hearing the sound to notice the presence of the Appellant near the well and the dead body floating in the water. This suggests that the sound is due to throwing of the dead body into the water. The witnesses if saw the dead-body floating in water immediately hearing the sound, then the deceased must have been died much prior to that time of throwing the body into the water, because had the deceased been died or killed recently before that, then his body would have been sank in the water instead of floating. As per medical jurisprudence, a dead body floats for some time initially, then

sinks and thereafter again floats depending on the temperature of the water and the body condition. As the witnesses noticed the body was floating immediately after the sound, thus the inference is that, the deceased was killed at some other place much before his body was thrown into the water of the well. In that case, the possibility of mark of injury or forced applied on the dead body, is most noticeable. But none of the witnesses has stated about any such mark of force or injury on the dead body which would have directly suggestive of the cause of death. Although they have stated about cutting of tongue and left hand little finger from the body, but none of them has stated so. Further no other spot of offence where death of deceased took place has been described by prosecution. The separated tongue or that little finger has not been recovered.

On the other hand, as per the version of the prosecution witnesses, it was open well without any fence situating in the bari of the Appellant. So any accidental fall of the deceased into the well cannot be completely ruled out. The prosecution does not also suggest any particular mode of death. In such circumstances and in absence of any medical opinion towards the cause of death, it is not at all safe to conclude the death as homicidal.

13. Another reason is that if the witnesses had the doubt about homicidal death of the deceased from the time they noticed the dead body in the well, then why did they not lodge a cognizable report at the earliest. The registration of UD case at the first instance itself suggests that no one had any doubt on non-homicidal death of the deceased. So the dead body was cremated on the next day of the occurrence and such

a doubt regarding human sacrifice was raised only after the village meeting held.

14. Apart from the above, many more defects and discrepancies irrespective of the cause of death are found in the prosecution case that makes the conviction unsustainable. As stated earlier, this is a case of circumstantial evidence and no direct eye-witness is there. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established, besides that all such circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion of guilt of the accused within all human probability.

In the instant case, neither any weapon of offence nor any other incriminating material like blood stained wearing apparel has been recovered by prosecution. The first circumstance is about the motive for murder that the same is for human sacrifice. To establish such a motive, prosecution should have brought some materials on record like the place of worship, the place of sacrifice and the manner of Puja etc. Prosecution has projected the case that the Appellant sacrificed the child before Kali Mata. Evidence shows that the temple situating in the backyard of the house of the Appellant is a Hari Temple (Lord Bishnu). Nowhere any idol of Kali Mata or anything connected thereto has been brought on record. By merely saying so, that, the deceased has been sacrificed for the purpose of Bali it will not reasonably satisfy prosecution case to believe. The learned trial court has arrived at the conclusion of human sacrifice through common knowledge that the

tongue and little finger is usually severed in case of human sacrifice only and not for any other purpose. Such a finding of the learned trial court does not stand for reasons on record, particularly when the cause of death is not suggestive from any material brought on record. Such an opinion by the learned trial court is not sustainable in the eye of law.

15. Considering the other circumstance narrated by the prosecution against the Appellant that he made extra judicial confession in the village meeting regarding commission of murder for human sacrifice, the same has been too much relied upon by the learned trial court. Law is settled that for accepting extra judicial confession, the foremost requirement is that, it must be voluntary and free from all coercions. It has been observed by the Supreme Court in the case of Sahadevan & Another vs State of Tamil Nadu, reported in 2012 (6) SCC 403 that;

"16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable for forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused.

The Principles

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

16. In the present case, all the independent witnesses have stated that the Appellant confessed in the village meeting that he killed the deceased for human sacrifice. It is stated by P.W.2 that he sacrificed (Bali) the deceased before Goddess Kali. It is further stated by P.W.6 that on being asked to the Appellant, he replied that, "If I made bali, so what happened." The vital point to be seen is that, if the Appellant has made such statement voluntarily without any coercion. A further scrutiny of the evidence of the witnesses in this regard reveals that to convene the meeting all the villagers were first called on 28th October, 2011. In the first meeting, the Appellant did not appear. But in the second meeting, he was brought by the Ward Member. It has been elicited by P.W.6 in his cross that the Ward Member of their Ward had gone to the accused to bring him to the meeting and then the villagers asked the Appellant about the occurrence. It further reveals from the evidence of P.W.1 that, at first the Appellant did not confess, but being repeatedly asked during conversation he confessed his guilt when

people got annoyed. So the situation can be well imagined whether any coercion or compulsion was there on the Appellant to make his confession. There were around 100 villagers present in the meeting. The Appellant did not come on his own to the first meeting. It was deferred to the afternoon to which he was brought by the concerned Ward Member. He did not confess initially. But on repeated conversations and only when villagers got annoyed, he is stated to have confessed his guilt. Therefore, a scenario of coercion by the villagers on the Appellant is well imaginable. The other aspect is that, the witnesses have not stated anything more about confession of guilt of the Appellant except that he made the sacrifice. The details of the incident have not been confessed and not been stated by any of the witnesses. The mode and manner of the alleged commission of crime by the Appellant has not been stated. The verbatim in detail has not been stated by the witnesses. The single sentence that "I made the sacrifice what the people will do" would definitely not fulfill the requirement for establishing the extra judicial confession against the Appellant. So reasonable doubts are apparent on record. Such a weak piece of evidence in the given scenario coupled with other discrepancies as discussed above is insufficient to prove the guilt against the appellant. As such, it cannot be concluded that the prosecution has established the charges beyond all reasonable doubts against the Appellant.

17. In view of the discussions made and the reasons stated, we are of the opinion that the prosecution has failed to establish the charges against the Appellant and the appellant is entitled to the benefit of doubts discussed above.

18. Accordingly, the Appellant is held not guilty of the charges and is acquitted thereof. He be set at liberty immediately, if his detention is not required in connection with any other case.

19. The appeal is allowed.

(B.P. Routray) Judge

(Dr. S. Muralidhar) Chief Justice

B.K. Barik/PA