Orissa High Court
Debendra Singh vs State Of Odisha on 17 October, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.13 of 2005
An appeal under section 374 Cr.P.C. from the judgment and
order dated 16.11.2004 passed by the Adhoc Addl. Sessions
Judge (F.T.C.), Khurda in S.T. Case No.2/405 of 2004/2003.
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Debendra Singh ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Akhaya Kumar Beura
Amicus Curiae
For Respondent: - Mr. Priyabrata Tripathy
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE SIBO SANKAR MISHRA
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Date of Hearing: 27.09.2023 Date of Judgment: 17.10.2023
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S.K. Sahoo, J. The appellant Debendra Singh faced trial in the Court
of learned Adhoc Addl. Sessions Judge (F.T.C.), Khurda in S.T.
Case No.2/405 of 2004/2003 for commission of offences under
section 302 of the Indian Penal Code (hereinafter 'I.P.C.') on the
// 2 //
accusation that on 18.02.2003 at about 12 O' clock in the
midnight at Ganganagar Division II Office of P.W.D. (R & B),
Bhubaneswar, he committed murder of his niece Rajani @ Tuni
(hereinafter 'the deceased'). The appellant along with another
co-accused Jumar Parida was also charged under section 201 of
I.P.C. on the accusation of carrying the dead body of the
deceased in a car and disposing of the same by burning her face
and throwing it away in a cashew nut orchard of one Kuber
Parida (P.W.16) under the jurisdiction of Tangi Police Station.
The learned trial Court vide impugned judgment and
order dated 16.11.2004 has been pleased to hold the co-accused
Jumar Parida not guilty of the offence charged and accordingly,
acquitted him. However, the appellant was found guilty under
sections 302/201 of the I.P.C. and sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs.5,000/-
(rupees five thousand), in default, to undergo rigorous
imprisonment for six months for the offence under section 302 of
the I.P.C. and to undergo rigorous imprisonment for two years
and to pay a fine of Rs.1,000/- (rupees one thousand), in
default, to undergo R.I. for one month and both the sentences
were directed to run concurrently.
// 3 //
Prosecution Case:
The prosecution case, as per the first information
report (hereinafter 'F.I.R.') (Ext.1), lodged by Tulu Kumar Sethi
(P.W.1), the Grama Rakhi of village Hata Baradi before the
Officer in-charge of Tangi police station on 19.02.2003 is that on
the same day at about 6.30 a.m., he got information from the
villagers that a dead body of a lady was lying near the cashew
nut orchard of one Kuber Parida (P.W.16) near village Jayantpur.
P.W.1 proceeded to the spot and noticed the dead body and
found the age of the lady would be around nineteen to twenty
five years, height would be around five feet, dark brown
complexion, average body health, round face and wearing a
green colour nighty and having marks of injuries on different
parts of her body and the face was burnt and covered with
ashes.
On receipt of the written report, Bikash Ranjan Beura
(P.W.24), the Officer in-charge of Tangi police station registered
Tangi P.S. Case No. 22 dated 19.02.2003 under sections
302/201 of I.P.C. P.W.24 took up investigation of the case,
proceeded to the spot, held inquest over the dead body of the
deceased and prepared the inquest report (Ext.3) and sent the
dead body for post mortem examination. The scientific team also
// 4 //
visited the spot to assist the police in investigation. During the
course of investigation, the I.O. (P.W.24) came to know that the
appellant was working as a D.L.R. night Watchman in the P.W.D.
office at Unit-III, Kharvelnagar, Bhubaneswar and was staying
within the official campus of Division-II at Ganganagar and the
deceased was the niece of appellant who was also staying with
him. When P.W.24 came in search of the appellant to that place,
he found him absent from his duty from the previous night i.e.
from 18.02.2003. During the course of investigation, P.W.24
could ascertain that the appellant was residing in a rented house
at Palaspalli and he apprehended the appellant on 08.04.2003
from his rented house. P.W.24 further ascertained that the
appellant took the dead body of the deceased in an Ambassador
car first to his village, but when his own sister Susama Guru
(P.W.21), the mother of the deceased, refused to receive the
dead body of the deceased, the appellant returned back and
sought the assistance of some villagers to bury the dead body,
but having failed to get their assistance, threw the dead body
near the cashew nut orchard after burning her face so that her
identity could not be disclosed. For the purpose of further
investigation, P.W.24 went to Capital Hospital along with the
appellant for the purpose of interrogation and learnt from the
// 5 //
night watchman that the driver of a car bearing registration
No.DL-1C/F-3496 named Jumar Parida (co-accused) was
regularly coming in search of the appellant to take the hire
charges and P.W.24 also ascertained that the said car was used
to take patient and dead bodies from Capital Hospital campus.
The appellant also identified the co-accused Jumar Parida sitting
inside the car and on being questioned, the driver disclosed his
identity and thereafter his statement was also recorded. The co-
accused Jumar Parida was arrested and the car was seized. On
the disclosure statement of the appellant, the weapons of
offence, some photographs including the nude photographs of
the deceased including negatives were seized from the quarters
of the appellant. The nude photographs were found to have been
taken inside the quarters of the appellant. The identity of the
dead body was established to be the niece of the appellant. The
appellant was forwarded to Court on 09.04.2003. The charge of
investigation was handed over to S.I. of Police D.S. Pratap who
sent the viscera for chemical examination and on completion of
investigation, charge sheet was submitted on 05.08.2003 against
both the appellant and the co-accused Jumar Parida under
sections 302/201/34 of I.P.C.
// 6 //
Framing of Charges:
After submission of charge sheet, the case was
committed to the Court of Sessions for trial after observing due
committal procedure, where the learned trial Court framed the
charges against the appellant and the co-accused on 21.01.2004
as aforesaid and since the appellant and the co-accused refuted
the charges, pleaded not guilty and claimed to be tried, the
sessions trial procedure was resorted to prosecute them and
establish their guilt.
Prosecution Witnesses, Documents Exhibited and Material
Objects Proved By Prosecution:
During the course of trial, in order to prove its case,
the prosecution has examined as many as twenty four witnesses.
P.W.1 Tulu Kumar Sethi was the Grama Rakhi of
village Hata Baradi and he is the informant in this case. He
stated that on getting information from the villagers, he had
been to the spot and found that the dead body of a young girl
aged about 20 to 22 years was lying near the cashew nut
orchard of one Kuber Parida and accordingly, he lodged the
written report (Ext.1) before P.W.24.
P.W.2 Pradyumna Kumar Parida was a teacher who
was called by to spot by Tahasildar, Banpur and Addl. Tahasildar,
// 7 //
Tangi. He is a witness to the seizure of the dead body as per
seizure list Ext.4.
P.W.3 Hari Behera is a witness to the inquest report
over the dead body of the deceased as per Ext.3.
P.W.4 Akura Behera stated that on hearing hullah
that a dead body was lying in the cashewnut field, he went there
and saw the dead body of a girl wearing a green colour night
gown and her face was looking black. He is a witness to the
inquest report as per Ext.3.
P.W.5 Akhil Sundara is a co-villager of the appellant
as well as the deceased and stated that he received a telephone
call from the appellant, who asked him to call his sister (the
mother of the deceased) and he went and called the mother of
the deceased, who had a talk over telephone with the appellant.
He denied having any knowledge regarding the conversation
between the appellant and the mother of the deceased.
P.W.6 Trinath Sundara is the cousin brother of the
appellant who stated that about one year back while he was
coming to the auto garage in search of a second hand auto by
walk, he went to the side of the road to attend a call of nature
and there he found a new born male baby and he brought that
baby to his village. He denied the suggestion made to him that
// 8 //
the deceased had given birth to an illegitimate child and in order
to shield her from being defamed, he brought the child with him.
P.W.7 Surya Kumar Mallick was the constable
attached to Tangi police station, who escorted the dead body of
the deceased to Khurda Hospital for post mortem examination.
He is a witness to the seizure of wearing apparels of the
deceased as per seizure list Ext.5.
P.W.8 Chittaranjan Srichandan is a co-villager of the
appellant who stated that during the night of 18.02.2003, the
appellant came at about 11-12 O' clock in the night and asked
his uncle's son Basanta for a spade. He also stated that he saw a
white car was standing at a distance on the road. He made a
query to the appellant as to why he required a spade at such late
hours in the night, to which the appellant answered that since his
niece aged about 10 to 12 years had committed suicide and his
sister had called him from Bhubaneswar and as there is a party
faction in the village, he would cremate the dead body. Seeing
the conduct of the appellant, he along with his brother denied to
render any help to the appellant and asked the appellant to leave
the place and thereafter, the appellant left the place.
P.W.9 Chandrasekhar Tarai is a co-villager of the
appellant who stated that while he was sleeping in his house
// 9 //
inside the cashew nut garden of Siba Chhotray, at about mid
night, the appellant knocked his door and when he opened the
door, the appellant asked him to give a spade and some
kerosene and when he asked as to why he required those
articles, the appellant told him that he had come with a dead
body. Hearing this, he shouted at the appellant and threatened
to call other villagers for which the appellant left the place.
P.W.10 Basanta Srichandan is a co-villager of the
appellant who stated that while he along with P.W.8 was sleeping
inside their poultry farm, the appellant came in a white
ambassador car and called them at about 10-12 O' clock and
asked for a spade and when they asked as to why he required
the spade, he told them that his sister called him as his niece
had committed suicide and so he had come to cremate the dead
body of his niece. Being annoyed with such a reply, he along
with P.W.8 asked the appellant to leave.
P.W.11 Niroj Kumar Pattanaik was the Junior
Engineer (R & B), Bhubaneswar who stated that on 19.02.2003,
P.W.12 told him that one driver of a car was looking for the
appellant to pay his dues for taking the dead body of a relation
of the appellant to his village. He is a witness to the seizure of
some nude photographs as per seizure list Ext.6 as well as
// 10 //
seizure of two blue colour small pipes, one small iron rod and
one thin cane stick as per seizure list Ext.7.
P.W.12 Lingaraja Jena was working as watchman in
P.W.D. (R & B) and was staying in a quarter inside the campus of
the Division Office. He stated that the deceased was staying with
the appellant for a year prior to the incident and also identified
the photograph of the deceased marked as M.O.IV. He further
stated that at about 12 to 1 O' clock in the night on 17.02.2003,
the deceased knocked at the door of the office and wanted to
stay inside the office during the night. However, he denied
allowing her to stay with him in the office as he was alone in the
office. He further stated that on the next day, the appellant was
seen repeatedly going outside his quarters and coming inside for
about 30-40 times and in the evening at about 7.30 to 8.00 p.m.
during power cut time, one white Ambassador car came to the
quarters of the appellant and after sometime the car left. On the
next morning at 9.00 a.m., one man came and enquired about
the appellant and when he asked about the reason, the man told
him that he had taken the dead body of the niece of the
appellant in his car last night and that he had not received the
hire charges of Rs.2,000/-.
// 11 //
P.W.13 Sankarsan Sahoo is a witness to the seizure
of the car as per seizure list Ext.8/2.
P.W.14 Kishore Chandra Swain who was the
watchman of P.W.D. (R & B) Office, stated that one driver
enquired about the appellant and on his query, he disclosed
about carrying the dead body of the niece of the appellant in his
car to the appellant's village and the appellant was required to
pay the hire charges.
P.W.15 Baijayanti Singh is the wife of the appellant,
who stated that earlier she used to reside in the quarters of the
appellant but subsequently, the appellant ill-treated and
assaulted her for which she left him and went to reside with her
parents. After three months of leaving his company, she got
information that the appellant had sustained some burn injuries
and she went to see him. Upon reaching his house, she saw a
girl had given birth to child in his quarters. On her query, the
appellant informed her that the girl was his niece.
P.W.16 Kuber Parida is the owner of the cashew nut
orchard, where the dead body of the deceased was lying.
P.W.17 Pankaj Behera is a post-occurrence witness
who stated to have seen the face of the dead body lying in the
cashew nut orchard of P.W.16. He further stated that the face of
// 12 //
the deceased was looking black and he did not verify whether
the dead body had some injuries or not.
P.W.18 Dillip Kumar Pati was the Junior Engineer of
the Capital Maintenance Division. He is a witness to the seizure
of nude photographs of the deceased as per seizure list Ext.6
and iron rod and P.V.C. pipe as per seizure list Ext.7 from inside
the quarters of the appellant in presence of the appellant.
P.W.19 Saroj Kumar Pattnaik was the Junior
Engineer, Section-18, Unit-II, Kharvel Nagar and he is a witness
to the seizure of attendance register as per seizure list Ext.9 and
the entry in respect of the appellant made therein as per seizure
list Ext.10.
P.W.20 Dr. Asima Patra was the Assistant Surgeon,
District Headquarters Hospital, Khurda, who conducted post
mortem examination over the dead body of the deceased on
20.02.2003 and proved her report vide Ext.11.
P.W.21 Sushama Guru is the sister of the appellant
and mother of the deceased. She stated that the appellant made
extra judicial confession before her and had brought the dead
body of the deceased in the night in a white car and she noticed
marks of injuries all over the dead body. She further stated that
// 13 //
when she refused to accept the dead body, the appellant went
away in the car with the dead body.
P.W.22 Nilakantha Samantray was working as a
constable attached to Tangi police station and he is a witness to
the seizure of green colour night gown, one crystal necklace and
one waist thread of the deceased after those were produced by
the constable as per seizure list Ext.5.
P.W.23 Arup Kumar Sahu was the Tahasildar, Tangi
and he is a witness to the inquest report as per Ext.3.
P.W.24 Bikash Ranjan Beura was the Officer in-
charge of Tangi police station and he is the Investigating Officer
of the case.
The prosecution exhibited fifteen documents. Ext.1 is
the F.I.R., Ext.2/1, Ext.5, Ext.6, Ext.7, Ext.9, are the seizure
lists, Ext.8/2 is the seizure list in respect of the car bearing
No.DL-1C/F-3496, Ext.10 is the attendance register, Ext.11 is
the post mortem report, Ext.12 is the spot map, Ext.13 is the
rough sketch map, Ext.14 is the requisition of Tahasildar, Banpur
and Ext.15 is the carbon copy of letter no.74 dated 26.03.2003
of the Junior Engineer, P.W.D. (R&B).
// 14 //
The prosecution proved nine material objects. M.O.I
is the night gown, M.O. II is the crystal necklace, M.O.III is the
waist thread, M.O.IV to IV/9 are the ten colour photographs,
M.O.V & VI are the two plastic blue colour pipes, M.O.VII is the
iron rod, M.O. VIII is the cane stick and M.O.IX to IX/3 are the
four colour photographs of the deceased.
Defence Plea:
The defence plea of the appellant is one of complete
denial.
Findings of the Trial Court:
The learned trial Court after assessing the oral as
well as documentary evidence on record came to hold that there
is no direct evidence forthcoming against the appellant to have
committed murder of the deceased and the case rests upon
circumstantial evidence. It was held that the deceased had died
due to assault on several parts of her body and due to fracture of
hyoid bone. The appellant being the maternal uncle of the
deceased had taken the nude photographs of the deceased which
speaks about his sexual perversity. The learned trial Judge
seems to have relied upon the circumstantial evidence on record
and held that the chain of circumstances was complete and the
prosecution has successfully proved that the appellant had killed
// 15 //
the deceased and burnt her face in order to conceal her identity
and accordingly, convicted the appellant of the charges under
sections 302/201 of I.P.C.
Circumstances appearing against the appellant:
There is no dispute that there is no direct evidence in
the case as to who committed the murder of the deceased, when
and how and the entire case rests upon circumstantial evidence.
The following circumstances are appearing on record against the
appellant:-
(i) The deceased was last residing with the
appellant alone in the official quarters of the
appellant in the campus of P.W.D. office at
Ganganagar at the time of occurrence as stated by
P.W.11, P.W.12, P.W.15 and P.W.21;
(ii) The deceased was asking for shelter during the
midnight on 17/18.02.2003 as she was assaulted by
the appellant as stated by P.W.12;
(iii) Extrajudicial confession made by the appellant
before his sister (P.W.21);
(iv) Appellant brought the dead body of the
deceased to the house of his sister (P.W.21) in a car
// 16 //
having marks of injuries all over the body of the
deceased;
(v) The appellant was asking for a spade before
P.W.8, P.W.9 and P.W.10 in the night to bury the
dead body of his niece;
(vi) Dead body of a young girl aged about 20 to 25
years was found in the cashew nut garden of Kuber
Parida (P.W.16) with her face burnt which was later
identified to be that of the deceased through
photographs;
(vii) Driver of the car was searching for the appellant
to get his unpaid dues for carrying the dead body as
stated by P.W.12 and P.W.14;
(viii) Appellant was absconding and not attending his
office as stated by P.W.19 which was also revealed
from attendance register (Ext.9) and from other
evidence;
(ix) Leading to discovery of the weapons of offence
and nude photographs of the deceased at the
instance of the appellant from his quarters;
// 17 //
(x) Conduct of the appellant relevant under section
8 of the Evidence Act;
(xi) Post mortem examination report (Ext.11) of the
deceased proved by P.W.20 shows that the death
was homicidal;
Whether the deceased met with a homicidal death
(Circumstance no.xi):
Before delving into the question as to whether the
appellant is the author of the ghastly crime, it is imperative for
us to ascertain as to what was the nature and cause of death of
the deceased. Only if this Court comes to a definite and
incontrovertible finding that the death had occurred due to
external assaults bereft of natural reasons or suicidal attempts,
then only the question would arise as to who committed the
murder, when and how. We find that apart from the inquest
report (Ext. 3), the prosecution has relied upon the evidence of
Dr. Asima Patra (P.W.20), Assistant Surgeon attached to the
Capital Hospital, Bhubaneswar who on 20.02.2003 conducted
post-mortem examination of an unidentified dead body, which
was later identified to be of the deceased. She noticed the
following injuries over the dead body of the deceased:
// 18 //
i. One lacerated injury of size 4×2×2 c.m. on
anterior aspect of right leg just below the knee
joint.
ii. A bruise of size 5×4 c.m. present on right
side of the buttock.
iii. One parallel bruise of size 5 inches in length
present obliquely on the lateral aspect of right
thigh.
iv. Another parallel bruise of size 4 inches in
length present on anterior aspect of left thigh.
v. Another parallel bruise of size 3×2 inches
present over left calf.
vi. Bruise of size 3×2 inches present over
mons pubis.
vii. Three bruises of different sizes and shapes
present on the back (near the left scapula, near
the mid line on the right side, near the lower
portion of the back).
viii. Abrasion of size 3×2×1 c.m. present on the
right fore arm near wrist on ventral aspect.
P.W.20 opined that all the injuries noticed were ante
mortem in nature and might have been caused by hard and blunt
object. She also stated that such injuries can also be inflicted by
cylindrical objects like stick, iron rod and pipe having half to one
inch diameter. She noticed fracture of hyoid bone on dissection.
The cause of death was opined to be asphyxia by application of
// 19 //
force on the neck. The P.M. report has been proved as Ext.11.
The unidentified dead body was later on identified to be that of
the deceased. The medical opinion rendered by P.W.20 rules out
any possibility of suicidal death of the deceased and proves
beyond all reasonable doubt that the deceased was assaulted by
hard and blunt objects and her neck was compressed which
resulted in her death. The learned Amicus Curiae has not
challenged the homicidal death of the deceased. In view of the
inquest report (Ext.3), testimony of the autopsy doctor and the
post mortem report (Ext.11) findings, we are of the humble view
that the prosecution has successfully established that the
deceased met with a homicidal death. Thus, circumstance no.(xi)
has been established.
Deceased was last residing with the appellant alone in the
official quarters of the appellant (Circumstance no.i):
P.W.11, P.W.12, P.W.15 and P.W.21 are the
witnesses who stated about this circumstance.
P.W.11 has stated that the appellant was staying in
the outhouse inside the campus of Division Office where he was
working as a watchman. The wife of the appellant left him and
was staying in her native place. The parents of the appellant,
who were also staying in the said outhouse returned to their
// 20 //
village. He further stated that the deceased niece of the
appellant came to reside with him three to four months prior to
the occurrence and even after the parents of the appellant left,
the deceased was continuing to stay with the appellant in the
outhouse. In the cross-examination, P.W.11 has stated that the
outhouse in which the appellant was staying consisted of two
rooms and three doors and the appellant was unauthorizedly
staying in the said outhouse for which he was asked to vacate
the outhouse. He however stated that he had not visited the
outhouse while the deceased girl was staying there and he had
heard from the staff that the parents of the appellant, his wife
and the deceased girl had come to stay in the outhouse. He
further stated that his own house is situated at B.J.B. Nagar,
which is about three kms. away from the spot. No doubt, P.W.11
was the Junior Engineer of R & B Division, but he has stated that
the appellant was not working under his control at the time of
occurrence. He further stated that the Division office was facing
to the east whereas the appellant was staying in the extreme
west. In view of the nature of evidence given by P.W.11, it
appears that he had no personal knowledge that the deceased
was staying with the appellant in the outhouse as he himself had
never visited the outhouse while the deceased was staying there
// 21 //
and he stated to have not seen any female or relation coming to
the house of the appellant and he had heard about the deceased
to be staying in the outhouse from the staff. Therefore, the
evidence of P.W.11 being hearsay in nature, on this score, is not
acceptable.
P.W.12 who was a watchman in P.W.D. (R & B Office)
has stated that the appellant was working in the Division office
as D.L.R. and he was residing in the quarters inside the campus
of the Division office. The appellant was residing with his wife,
but after some quarrel, his wife left him and thereafter for about
a year, his niece was residing with him in the said quarters.
P.W.12 identified the photograph of the niece of the appellant
marked as M.O.IV. In the cross-examination, he has stated that
he was the watchman in the Division Office since 1986 and the
appellant was staying in the quarters prior to his joining. He
further stated that inside the campus, there was Division Office
as well as Sub-Division office situated side by side and the
quarters of the appellant was behind the Sub-Division office. He
further stated that the quarters of the appellant was 100 meters
away from the Division Office and he specifically stated to have
seen the wife of the appellant as she was residing with the
appellant for five to six years. He further stated that he had
// 22 //
seen the girl coming and going and therefore, there is nothing to
disbelieve in the evidence of P.W.12 that the deceased was
residing in the quarters of the appellant.
P.W.15 who is none else than the wife of the
appellant has stated that she was staying with the appellant in
the quarters inside the campus of the office and since the
appellant ill-treated and assaulted her, she left him and came to
reside in the house of her parents since 1st February 2001 and
she received information about some injuries caused to the
appellant for which she made a courtesy visit to the appellant
and found one girl had given birth to a male child in the quarters
and on her query, the appellant told that the girl was his niece.
She further stated that she had never seen that girl prior to that
date. She stated that on 4th April 2003 she came to know that
the niece of the appellant was murdered and she identified the
photographs of the deceased marked as M.Os. IV and IV/1. In
the cross-examination, she stated that she stayed with the
appellant in the quarters for about seven years and during such
period, she had given birth to two sons. Nothing has been
elicited in the cross-examination to disbelieve the evidence of
P.W.15 that the deceased was residing with the appellant in his
quarters when P.W.15 visited the appellant.
// 23 //
P.W.21 is none else than the sister of the appellant
and mother of the deceased. She stated that the deceased was
staying with the appellant in his Government quarters inside the
office four months prior to her death. She further stated that
while her ailing father and brother were staying with the
appellant in his quarters, the deceased had gone there to cook
for all of them, but after her father and younger brother came
back to the village, the appellant asked her (P.W.21) to leave the
deceased for some more days as she was preparing food for him.
Accordingly, P.W.21 allowed the deceased to stay with the
appellant. P.W.21 stated to have visited the quarters of the
appellant three days prior to the date of occurrence. In the
cross-examination, she stated that she had left her daughter in
the quarters of the appellant as she was pregnant and while
staying there, the deceased delivered a child and she took the
deceased with her to one of the relation's house after the child
was born and six months thereafter, when the father and
younger brother of the appellant came to reside in the quarters
of the appellant for their medical treatment for about four
months, the appellant came and took the deceased to his
quarters to prepare food for all of them. In the cross-
examination, she further stated that the appellant told her that
// 24 //
after three to four days, he would drop the deceased in the
village after purchasing dress materials for her.
In view of the evidence of P.W.12, P.W.15 and
P.W.21, we are of the humble view that the prosecution has
established that the deceased was staying alone in the official
quarters of the appellant with him at the time of occurrence.
Hence, the circumstance no.(i) is proved by the prosecution
against the appellant.
Deceased was asking for shelter during the night of
occurrence before P.W.12 (Circumstance no.ii):
As has already been observed while discussing about
the deceased staying with the appellant in the official quarters of
the appellant to be believable, we have placed reliance on the
evidence of P.W.12, who has also stated that on 17.02.2003 at
about 12 to 1 O'clock in the night, the niece of the appellant
came and knocked at the door of the office and called him and
when he asked her as to why she had come at such odd hours of
night, she told him that the appellant had assaulted her and she
wanted to stay inside the office during that night. P.W.12 refused
to allow the deceased to stay inside the office as he was alone.
He further stated that the deceased repeatedly requested him to
open the gate, but he refused and so, she left. In the cross-
// 25 //
examination, he has stated that when the deceased knocked the
grill gate at 12 to 1 O'clock in the night and called him, the
chowkidar Bhikari Badajena did not come.
P.W.21 has also stated to have seen injuries on the
dead body of the deceased while it was lying on the backside
seat of the car in which the appellant carried the dead body.
P.W.20, the doctor who conducted post mortem
examination has also noticed number of injuries which are stated
to have been caused by stick, iron rod and pipe.
Therefore, the prosecution has successfully
established that on the night of occurrence, the deceased was
assaulted by the appellant for which she sustained injuries and
asking for shelter before P.W.12, which was not provided to her.
It is also important to note that thereafter no one had seen the
deceased alive. Accordingly, circumstance no.(ii) is proved
against the appellant.
Extrajudicial confession made by the appellant before his
sister (P.W.21) (Circumstance no.iii):
P.W.21, the mother of the deceased stated that the
appellant made a phone call and informed her that the deceased
was in a serious condition as she was assaulted by some
// 26 //
miscreants ('goondas'). When P.W.21 retorted back that there
was absolutely no reason for any miscreant to assault her
daughter (deceased), upon facing such verbal retaliation from
P.W.21, the appellant nervously confessed that he had killed the
deceased. Hearing this, P.W.21 asked the appellant to bring the
deceased immediately. In the cross-examination, P.W.21 has
stated that the appellant telephoned to the house of Akhila
Sundaray (P.W.5) and called her there. She further stated that
when she got the information about the death of her daughter,
she disclosed it in her house and the neighbours also knew about
it. It has been confronted to P.W.21 and proved through the I.O.
(P.W.24) that she had not stated in her 161 Cr.P.C. statement
that the appellant telephoned her saying that her daughter was
serious as she was assaulted by goondas and that when she told
him that there was no reason for goondas to assault her
daughter or kill her, the appellant told her that he had killed the
deceased. Thus, P.W.21 seems to have stated about the extra-
judicial confession for the first time in Court during trial.
P.W.5 has stated that he received a telephone call
from the appellant who asked him to call P.W.21 and he went
and called P.W.21 and she came and after five minutes, the
appellant again made telephone call and P.W.21 received the
// 27 //
call. He further stated that he did not know what the appellant
told over phone to P.W.21. He was declared hostile by the
prosecution. In the cross-examination, P.W.5 has stated that
P.W.21 had not talked with him nor had stated anything to him
after she received telephone from the appellant and after talking
with the appellant over telephone, she immediately went away.
No other witness including the family members of
P.W.21 has been examined to corroborate her evidence that the
appellant made extra-judicial confession before her over
telephone to have committed the murder of the deceased.
In the case of Pawan Kumar Chourasia -Vrs.-
State of Bihar reported in 2023 Supreme Court Cases
OnLine SC 259, the Hon'ble Supreme Court held as follows:
"5. As far as extra-judicial confession is
concerned, the law is well settled. Generally, it is
a weak piece of evidence. However, a conviction
can be sustained on the basis of extra-judicial
confession provided that the confession is
proved to be voluntary and truthful. It should be
free of any inducement. The evidentiary value of
such confession also depends on the person to
whom it is made. Going by the natural course of
human conduct, normally, a person would
confide about a crime committed by him only
// 28 //
with such a person in whom he has implicit faith.
Normally, a person would not make a confession
to someone who is totally a stranger to him.
Moreover, the Court has to be satisfied with the
reliability of the confession keeping in view the
circumstances in which it is made. As a matter
of rule, corroboration is not required. However,
if an extra-judicial confession is corroborated by
other evidence on record, it acquires more
credibility."
Even though the evidence has come on record that
on the night of occurrence, the appellant had made telephone
call to his sister (P.W.21) and talked with her in the house of
P.W.5 over phone, but the extra-judicial confession part is not
believable, particularly when P.W.21 has stated the same for the
first time in Court during trial and not before the Investigating
Officer. We are of the view that the prosecution has not
established the extra-judicial confession made by the appellant
before his sister (P.W.21). Thus, the circumstance no.(iii) is not
proved against the appellant.
Appellant brought the dead body of the deceased to the
house of his sister (P.W.21) in a car with marks of injuries
on the body (Circumstance no.iv):
// 29 //
P.W.21 has stated that after receiving the phone call
from the appellant, when she asked him (appellant) to bring his
daughter immediately, the appellant came to the village on the
same night at about 10 p.m. in a white car with the dead body of
her daughter and she noticed marks of injuries all over the body
of the deceased which was lying on the backside seat of the car.
She further stated that seeing the dead body of her daughter,
she scolded the appellant, but the appellant begged apology and
told her that he had committed the sin. She further stated that
when she refused to accept the dead body of her daughter, the
appellant went away with the dead body in that car. In the
cross-examination, she has stated that she went near the car but
the appellant did not come out of the car. The deceased was
wearing chudidar dress and was covered with a shawl. She
further stated that she went inside the car, touched the body of
her daughter and found her dead and upon touching the body of
her daughter, she could find injuries and blood over her neck.
Nothing has been brought in the cross-examination to disbelieve
this part of evidence adduced by P.W.21. Therefore, the
circumstance no.(iv) is proved by the prosecution against the
appellant.
// 30 //
The appellant was asking for a spade before P.Ws.8, 9 and
10 in the night to bury the dead body of his niece
(circumstance no.v):
P.W.8 has stated that on the night of 18.02.2003,
while he was guarding his poultry farm near his house, the
appellant came at about 11 to 12 O'clock in the night and asked
P.W.10 to provide him with a spade. He further stated to have
noticed a white car standing at a distance on the road and when
he asked the appellant as to why he required a spade at such
dead hour of the night, the appellant told him that since his
niece had committed suicide, his sister had called him from
Bhubaneswar and as there was party fraction in the village, he
would cremate the dead body. Noticing the conduct of the
appellant, he and his brother (P.W.10) became afraid and asked
him to go away and the appellant went away in that car. In the
cross-examination, he has stated that the car which he saw near
his poultry farm was about 100 yards away from his farm and
when the appellant had come, it was a moon-lit night. He further
stated not to have disclosed the incident of night before anyone
of his family or to anyone in the village. Nothing further has been
elicited in the cross-examination of P.W.8 to disbelieve his
evidence.
// 31 //
P.W.10, who is the brother of P.W.8, has also stated
to be sleeping inside their poultry farm during the night on
18.02.2003 and at about 11 or 12 mid night, the appellant came
in a white ambassador car and called them and asked for a
spade and when he asked as to why he required a spade, he told
that since his sister called him as his niece had committed
suicide, he had come to cremate her dead body. P.W.10 further
stated that being annoyed, they asked the appellant to go away
and accordingly, the appellant went away in the car. In the
cross-examination, he has stated that when the appellant came
and called him, his brother (P.W.8) was there in the poultry farm
with him and he did not disclose this fact before anyone of his
family or anyone in the village. He further stated that when the
appellant called him, he got up first and then his brother waked
up and they talked with the appellant on the door step of the
farm and the car in which the appellant had come was standing
at a distance of 100 ft. from their farm and that he did not go
near the car. Nothing further has been elicited in the cross-
examination to disbelieve the evidence of P.W.10. Therefore,
P.W.10 corroborates the version of P.W.8.
P.W.9 has stated that during the mid night while he
was sleeping in his house inside the cashew nut garden of Siba
// 32 //
Chhotray, the appellant knocked at his door and called him and
when he opened the door, the appellant asked for help and on
his query, the appellant asked him to provide him a spade and
some kerosene and that the appellant had come in a white car.
P.W.9 further stated that when he asked the appellant as to why
he required those articles, he said that he had come with a dead
body. At this, when P.W.9 shouted at the appellant and
threatened to call people, the appellant went away from that
spot. In the cross-examination, P.W.9 has stated that the car
was standing at a distance of 50 cubits from his house and it was
a one room rest cottage where he was residing with his family
and that his wife and children though got up, but did not come
near the door when he was talking with the appellant. He further
stated that from his house, the appellant went towards the
village. He further stated that on the next day, when he noticed
20-30 persons near the spot where the dead body was lying, he
did not disclose anyone that appellant had come with a dead
body on the last night and that he did not disclose this fact out of
fear to anyone including the father of the appellant or to anyone
in his family. Nothing further has been elicited in the cross-
examination to disbelieve the evidence of P.W.10.
// 33 //
In view of the evidence of P.W.8, P.W.9 and P.W.10,
the prosecution has proved that in the night preceding the
recovery of the dead body from the cashew nut orchard of
P.W.16, the appellant had come to their house and was asking
for a spade to bury the dead body of his niece and when he was
scolded and asked to go away, he left in the car. Thus, the
circumstance no.(v) has been proved by the prosecution against
the appellant.
Dead body of a young girl aged about 20 to 25 years was
found in the cashew nut garden of P.W.16 with her face
burnt which was later found to be that of the deceased
(Circumstance no.vi):
Not only P.W.1, the informant but also P.W.2, P.W.3,
P.W.4, P.W.10, P.W.17, P.W.23 and the I.O. (P.W.24) have
stated about this circumstance that the dead body of a young girl
with a burnt face was found from the cashew nut garden of
P.W.16. The inquest over the dead body was conducted at the
spot in the presence of Tahasildar (P.W.23) and inquest report
(Ext.3) was prepared. P.W.24, the I.O. also took photographs of
the dead body from different angles, which were marked as
M.O.IX series. P.W.24 further stated that he seized the wearing
apparels of the deceased along with her waist-thread as per
// 34 //
seizure list Ext.5 and since the identity of the deceased could not
be ascertained, the constables buried the dead body near the
post mortem house. He further stated that on 27.03.2003, he
was in search of clues to ascertain the identity of the deceased
but could not. On 07.04.2003, he received information that the
deceased happened to be the niece of the appellant and
accordingly, he visited the quarters of the appellant and from
P.W.12, he could know that the niece of the appellant was
staying with him in his quarters and on the night of 17.02.2003,
the appellant had assaulted his niece. The quarters of appellant
was under lock and key, however, the I.O. got information that
the appellant was staying somewhere near Palaspalli. The
quarters of the appellant was guarded and the I.O. came to
Palaspalli. Subsequently, after the arrest of the appellant, at his
instance from his quarters, the coloured photographs of the
deceased were seized by the I.O. which were marked as M.O.IV
series. The I.O. further stated that P.W.12 identified the
photographs to be that of the deceased. P.W.12 has also proved
the photograph (M.O.IV) to be that of the deceased during trial.
Thus, the circumstance no.(vi) is proved by the prosecution
against the appellant.
// 35 //
Driver of the car was searching for the appellant to get his
unpaid dues for carrying the dead body (Circumstance
no.vii):
P.W.12 has stated that on the next day morning at
9.00 a.m., one man came and enquired about the appellant and
when he asked him the reasons thereof, he told him (P.W.12)
that he had taken the dead body of the niece of the appellant in
his car but he had not received his hire charges of Rs.2,000/-.
He further stated not to have seen the appellant thereafter till
Tangi police came with him and called him (P.W.12) to Airfield
police station. P.W.12 has stated in the cross-examination that
on 19.02.2003, when the driver of the car came and told him
that he had taken the dead body of the niece of the appellant,
the other watchman Kishore Swain (P.W.14) was present.
Nothing further has been elicited in the cross-examination in this
aspect. P.W.11, the Junior Engineer has stated that on
19.02.2003, P.W.12 told him that one driver was looking for the
appellant for payment of his dues relating to taking the dead
body of a relation to his village.
P.W.14 has stated that one driver came to their office
at about 9.00 a.m. and enquired about the appellant and
disclosed before them that on the previous night, he had taken
// 36 //
the dead body of the niece of the appellant in his car and that
the appellant was to pay hire charges of the car and that driver
had come two to three times in search of the appellant. In the
cross-examination, P.W.14 has stated that he did not disclose
anyone what the driver told him.
In view of the evidence of P.W.12 and P.W.14, the
prosecution has proved the circumstance no.(vii) against the
appellant.
Appellant was absconding and not attending his office as
stated by P.W.19 which was also revealed from
attendance register (Ext.9) and from other evidence
(Circumstance no.viii):
P.W.11 has stated that even though three months
prior to the occurrence, the appellant was sent to Sub-Division
office at Unit-3 as he was neglecting to perform his duties but
the appellant was still staying in the outhouse of the Division
office and from 19.02.2003, he could not see the appellant till
08.04.2003 when Tangi police arrested the appellant.
P.W.12 has stated after 18.02.2003, he had not seen
the appellant till 04/05th April when Tangi police came with the
appellant and called him to Airfield police station.
// 37 //
P.W.14 has also stated that the appellant was
residing in a quarters behind the office and he absconded for
about one and half months and thereafter, the police brought
him to the Division office.
P.W.19 was the Junior Engineer who stated that the
appellant was working in his section and he was the D.L.R. in the
office and on 19.04.2003, the police seized the attendance
register of the staff as per seizure list Ext.9 from which it
revealed that the appellant was absent from duty from
12.02.2003 to 21.04.2003. The attendance register was marked
as Ext.10.
P.W.24 has also stated that after he got information
that the deceased happened to be the niece of the appellant, he
conducted raid at different places and apprehended the appellant
from his rented house at Palaspalli.
Thus, from the evidence all these witnesses including
P.W.19 and the documentary evidence like the attendance
register, it has been proved that the appellant was absconding
after the date of occurrence and not attending his office. The act
of absconding may be a relevant piece of evidence to be
considered along with other evidence. Mere absconding should
// 38 //
not form the basis of a conviction as it is a weak link in the chain
of circumstantial evidence and it is as such not a determining
link. Absconding by itself is not conclusive either of guilt or of a
guilty conscience. However, the appellant has not offered any
explanation to such circumstance. Thus, the circumstance
no.(viii) is proved by the prosecution against the appellant.
Leading to discovery of the weapons of offence and nude
photographs of the deceased at the instance of the
appellant from his quarters (Circumstance no.ix):
P.W.24, the I.O. has stated in his evidence that the
appellant gave him information about the photographs of the
deceased and weapons of offence and led him to his quarters
and opening the lock thereof, the appellant went inside and
brought out one cane stick (M.O.VIII), one piece of iron rod
(M.O.VII) and two pieces of plastic pipes (M.Os. V & VI) which
were seized in presence of the witnesses and seizure list (Ext.7)
was prepared. The I.O. further stated that after searching the
house, he recovered a photo album containing ten photographs
and eight negatives of those photographs inside a cover kept
concealed behind a calendar pasted to the wall and out of such
photographs, four photographs were completely nude
photographs of the deceased and those were coloured
// 39 //
photographs and those were marked as M.O.IV series. The
negatives were marked as M.O.IV/10 to M.O. IV/17. The I.O.
stated that from the photographs, he could ascertain that all the
nude photographs were taken inside the quarters of the
appellant. The I.O. compared the photographs found inside the
quarters and the photographs of the deceased taken at the spot
where the dead body was located and found that one green
colour night gown which the deceased was wearing along with
black crystal necklace and red colour waist-thread were all
tallied.
P.W.11, the Junior Engineer has also stated about
the seizure of weapons and the photographs at the instance of
the appellant as per seizure list Ext.7 in which he had signed.
P.W.18 Junior Engineer has also stated about the
seizure of photographs and the weapons from the quarters of the
appellant as per seizure list Ext.7 in which he had put his
signatures. The weapons which were seized including the
photographs have been marked as material objects and the
witnesses have proved the same.
// 40 //
Thus, the prosecution has proved the circumstance
no.(ix) through the evidence of two official witnesses under
whom the appellant was working so also the investigating officer.
Conduct of the appellant relevant under section 8 of the
Evidence Act (Circumstance no.x):
It is pertinent to note the provision under section 8 of
the Evidence Act states that while fixing culpability for a crime,
motive, preparation and previous or subsequent conduct of the
accused are relevant factors and must be carefully weighed.
Though conduct of an accused is not a conclusive
proof of evidence which can be solely used for recording a
conviction, but when there is a chain of circumstances available
against an accused then his conduct becomes relevant as it adds
a link to the chain of circumstances. If conduct of the accused
provides credence to the incriminating circumstances available
against him, then it can be considered by Court as an additional
knot in the thread of evidence.
Apart from the circumstances already discussed in
the previous paragraphs, it appears that P.W.12 noticed the
appellant going in and coming out of his quarters for about 30-
40 times on 18.02.2003, which was the day following the
// 41 //
midnight when the deceased after being assaulted by the
appellant had approached P.W.12 to give her shelter inside the
office, and such conduct on the part of the appellant is
suggestive of restlessness which taken with other circumstances
shows that it was the after effects of commission of the crime.
The false statement made by the appellant before his sister
(P.W.21) that the miscreants assaulted the deceased and the
false statement made before P.Ws.8, 9 and 10 that the deceased
committed suicide are also relevant under section 8 of the
Evidence Act and these are additional links in the chain of
circumstances. It is the settled law that such piece of conduct of
the appellant can be held to be incriminatory which has no
reasonable explanation except on the hypothesis that he is
guilty. Conduct which destroys the presumption of innocence can
alone be considered as material. In this regard, it is useful to
refer to the decision of the Hon'ble Supreme Court in the case of
Anant Chaintaman Lagu -Vrs.- State of Bombay reported
in A.I.R. 1960 S.C. 500, wherein it is held as follows:-
"Circumstantial evidence in this context means a
combination of facts creating a network through
which there is no escape for the accused,
because the facts taken as a whole do not admit
of any inference but of his guilt....this conduct of
// 42 //
the accused was so knit together as to make a
network of circumstances pointing only to his
guilt...his methods was his own undoing;
because even the long arm of coincidence could
not explain the multitude of circumstances
against him, and they destroyed the
presumption of innocence with which law clothed
him."
Thus, the prosecution has proved the circumstance
no.(x) against the appellant.
Whether the chain of circumstances is complete?:
As already discussed, the prosecution has proved
that the deceased was the niece of the appellant and she was
last residing with the appellant alone in the official quarters of
the appellant in the campus of P.W.D. office at Ganganagar at
the time of occurrence. It has also been proved that the
deceased was asking for shelter during the midnight on
17.02.2003 before P.W.12 as she was assaulted by the appellant
which was not provided to her and thereafter no one had seen
the deceased alive. The appellant brought the dead body of the
deceased to the house of his sister (P.W.21) in a car having
marks of injuries all over the body of the deceased. The
appellant was asking for a spade before his co-villagers in the
// 43 //
night to bury the dead body of his niece. The dead body of a
young girl aged about 20 to 25 years was found in the cashew
nut garden of P.W.16 with her face burnt which was later
identified to be that of the deceased through photographs and
the post mortem examination report (Ext.11) of the deceased
proved that her death was homicidal. The driver of the car was
searching for the appellant to get his unpaid dues for carrying
the dead body. The appellant was absconding and not attending
his office after the date of occurrence. The appellant after being
taken into custody led the police to discover the weapons of
offence and nude photographs of the deceased from his
quarters. The seizure of the nude photographs of the deceased
which were taken inside the quarters of the appellant were kept
in a concealed manner and the same has been rightly held by
the learned trial Court to be pointing towards sexual perversity
of the appellant towards the deceased even though he was the
maternal uncle of the deceased.
A Court of law gets an upper-hand in determining
culpability of an accused where direct evidence is available;
however, the scarcity of direct evidence does not mandate that
an accused person should be given the benefit of doubt
compulsorily, rather it requires the Court to be more active to go
// 44 //
for a 'clue-searching expedition'. It is required to gather all the
circumstantial evidence available on record and to test the same
on the basis of the 'panchsheel' principles laid down by the
Hon'ble Supreme Court in its much-cited verdict in the case of
Sharad Birdhichand Sarda -Vrs.- State of Maharashtra
reported in (1984) 4 Supreme Court Cases 116. The
panchsheel principles, as propounded by the Highest Court, are
as follows:
1. The circumstances from which the conclusion
of guilt is to be drawn should be fully
established;
2. The facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty;
3. The circumstances should be of a conclusive
nature and tendency;
4. They should exclude every possible
hypothesis except the one to be proved;
5. There must be a chain of circumstances so
complete as not to leave any reasonable ground
for the conclusion consistent with the innocence
of the accused and must show that in all human
// 45 //
probability the act must have been done by the
accused.
It is aptly said, "Man may lie but the circumstances
do not". The Court should be alert while evaluating the evidence
of a case based on circumstantial evidence as the circumstances
can be created/concocted/planted in order to falsely entangle a
person on mere suspicion.
From the proved circumstances in the case in hand,
we are of the humble view that it makes the chain so complete
that it unerringly points towards the guilt of the appellant and it
further indicates that it is the appellant and none else who after
committing murder of the deceased caused disappearance of the
evidence with the intention of escaping from legal punishment.
The appellant has failed to discharge the statutory burden
imposed upon him under section 106 of the Evidence Act except
taking the plea of denial and therefore, the learned trial Court
has rightly found the appellant guilty under sections 302 and 201
of the Indian Penal Code. The sentence imposed by the learned
trial Court is quite justified in the facts and circumstances of the
case.
Before parting with the case, we deem it necessary
to mention that uncle is like a father figure. Uncle gives warmth
// 46 //
like mother and strength like father. The bond of faith, love and
affection of a niece on her uncle is unique. For her, uncle is a
blessing, a saviour who listens to her concerns, guides her,
supports her, takes care of her and always encourages her to do
the best in life. In childhood days, maternal uncle's house is the
most favourite destination. Who can forget the beautiful lines
from Hindi song, "Chanda Mama Se Pyara Mera Mama...Meri
Ankhon Ka Tara Mera Mama." The appellant lacked the qualities
of an uncle, made pious relationship ugly, spoiled the life of the
deceased niece, tortured her and ultimately committed her
gruesome murder.
In the result, the JCRLA being devoid of merits,
stands dismissed. The impugned judgment and order of
conviction handed down to the appellant and the sentence
passed thereunder are hereby upheld.
It appears that though the appellant was directed to
be released on bail by this Court vide order dated 13.05.2014 in
Misc. Case No.24 of 2014, but from the report of the
Superintendent, District Jail, Puri (WS) dated 03.12.2022, it
appears that the appellant was transferred to Special Jail,
Bhubaneswar on domestic ground on 16.06.2012 and therefore,
it prima facie shows that he has not availed the bail order.
// 47 //
However, in case he has been released on bail in the meantime,
he shall surrender before the learned trial Court within two
weeks from today to serve out the sentence awarded by the
learned trial Court which is confirmed by us, failing which the
learned trial Court shall issue non-bailable warrant of arrest for
his arrest and send him to judicial custody.
The trial Court records with a copy of this judgment
be sent down to the Court concerned forthwith for information
and compliance.
Before parting with this judgment, we put on record
our appreciation for Mr. Akhaya Kumar Beura, learned Amicus
Curiae for his valuable assistance and input in deciding this
appeal. He is entitled to his professional fees which is fixed at
Rs.7,500/-. We also acknowledge the invaluable contribution
made by Mr. Priyabrata Tripathy, learned Addl. Standing Counsel
in rendering help in reaching this decision.
..........................
S.K. Sahoo, J.
S.S. Mishra, J. I agree.
..........................
Signature Not Verified S.S. Mishra, J.
Orissa High Court,
Digitally Signed
The 17th October 2023/PKSahoo/Sipun
Signed by: PRAMOD KUMAR SAHOO
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 17-Oct-2023 10:48:04
