Orissa High Court

Hari @ Harendra Naik vs State Of Odisha on 8 January, 2024

Author: G. Satapathy

Bench: D. Dash, G. Satapathy

    IN THE HIGH COURT OF ORISSA AT CUTTACK
                       CRLA No.468 of 2012

  (An appeal U/S.374(2) of the Code of Criminal
  Procedure, 1973 against the judgment passed by Sri.
  B.N. Das, Adhoc Additional Sessions Judge, Fast Track
  Court No.3, Bhubaneswar in Crl. Trial (Sessions)
  No.5/11 of 2011 corresponding to GR Case No. 2080 of
  2010, arising out of Kharavela Nagar PS Case No.184
  of 2010 of the Court of learned SDJM, Bhubaneswar)

  Hari @ Harendra Naik                ...             Appellant
                               -versus-
  State of Odisha                     ...         Respondent

  For Appellant            :   Mr. S. Behera, Advocate

  For Respondent           :   Mr. G.N. Rout, ASC

       CORAM:
          HON'BLE MR. JUSTICE D. DASH
          HON'BLE MR. JUSTICE G. SATAPATHY

                      DATE OF HEARING :17.11.2023
                      DATE OF JUDGMENT:08.01.2024

G. Satapathy, J.

1. This appeal is directed against the judgment

passed on 09.05.2012 by the learned Adhoc Additional

Sessions Judge, Fast Track Court No.3, Bhubaneswar

in Crl. Trial (Sessions) No.5/11 of 2011 convicting the

appellant for commission of offence punishable

U/S.302 of IPC and U/Ss.25/27 of Arms Act and

sentencing him to undergo imprisonment for life for

offence U/S.302 of IPC and to undergo Rigorous

Imprisonment (RI) for three years on each count for

offences U/Ss.25/27 of Arms Act with stipulation of

running of sentence concurrently.

An overview of prosecution case:

2. On 27.07.2010 at about 9.15 PM, Dr.

Brahmananda Panda (hereinafter referred to as the

"deceased") went to his residential house situated in

the upstairs of his Nursing Home (Panda Nursing

Home, Kharavela Nagar, Bhubaneswar) after

completing consultation of the patient, but on the next

date morning at about 8 AM, when the sweeper of

Nursing Home, PW1-Minakshi Maharana went to the

room of the deceased to clean, she discovered the

deceased lying dead with a pool of blood and,

thereafter, she screamed and rest of the employee of

Nursing Home went there only to find the dead body

of deceased lying with injuries to his head, hand and

shoulder.

On this incident at about 8.30 AM, the

Manager of Nursing Home PW2-Jitendra Kumar Mishra

lodged an FIR vide Ext.1 against unknown person for

the murder of the deceased and, accordingly, on

receipt of Ext.1, the IIC, Kharavela Nagar-PW25

namely Satyajit Mishra registered Kharavela Nagar PS

Case No.184 of 2010 against unknown person for

offence U/S.302 of IPC and took up the investigation

of the case. In the course of investigation, PW25

interalia examined the informant and other witnesses,

held inquest over the dead body under Ext.2 as well as

sent the dead body to Capital Hospital for PM

examination, seized articles stained with blood and

also gave requisition to the DFSL team for spot visit.

Accordingly, the DFSL team found the finger print on

the handle of storewell kept inside the bed room of the

deceased and collected the finger print through

scientific process. In the course of investigation, PW25

apprehended the convict-Hari @ Harendra Naik, who

in police custody gave recovery of the weapon of

offence "Bhujali(MOI)" pursuant to his disclosure

statement under Ext.12 and MOI was accordingly

recovered and seized from a bushy place behind the

Panda Nursing Home under Ext.13. Similarly, the

convict also gave recovery of one Timex watch and his

wearing apparels stained with blood and the same

were accordingly seized by PW25 under Exts.14 and

15. Subsequently, PW25 got the finger print taken by

the DFSL from the storewell matched with the sample

finger print of the convict taken by DFSL team and

also collected the biological materials of the convict

through doctor. In the penultimate part of his

investigation, PW25 sent all the incriminating

materials seized to SFSL, Bhubaneswar through Ext.31

and received the chemical examination report under

Ext.32 and, thereafter, on completion of investigation,

PW25 submitted charge-sheet against the convict.

Finding prima facie material, the learned SDJM

took cognizance of offence U/S.302 of IPC and Sec. 25

& 27 of the Arms Act and committed the case of the

convict to the Court of Sessions and, thereafter, on

receipt of the record on transfer, the learned Adhoc

Additional Sessions Judge proceeded with the trial

when the convict denied to plead guilty to the charge.

This is how the convict faced the trial in the Court.

3. In support of the charge, the prosecution

examined PW1 to 25 in all, exhibited documents under

Exts.1 to 34 and identified ten material objects vide

MOI and X as against no evidence whatsoever by the

convict. The plea of the convict in the course of trial

was one of complete denial and innocent of the

offence. In addition, the convict further took the plea

in his statement U/S. 313 of Cr.P.C. that police took

his signatures on blank papers.

4. After appreciating the evidence on record

upon hearing the parties, the learned trial Court

convicted the appellant for committing murder of the

deceased by mainly relying upon the following

circumstance:

(i) Homicidal death of the deceased.

(ii) Sample finger print of convict tallied with the finger print taken from the storewell kept in bed room of the deceased.

(iii) Recovery of weapon of offence (Bhujali-MOI) at the instance of convict in presence of the witnesses pursuant to his disclosure statement.

(iv) Recovery of Timex watch MOII at his instance and the seized wearing apparels of the convict MO IV being found stained with blood of the deceased.

(v) Motive behind the crime which was for bearing grudge against the deceased for abusing him and his paramour who are found by the deceased in a compromise position in his Nursing home.

Rival Submissions:

5. In the course of hearing of the appeal, Mr. S.

Behera, learned counsel for the appellant has

submitted that the learned trial Court has fallen in

gross error by holding the chain of circumstance

complete to hold the appellant guilty of the offence,

but none of the circumstances were convincingly

established against the appellant. It is further

submitted by him that the appellant had borne grudge

against the deceased for abusing him and one lady

cook namely Gita Jena for finding them to be in a

compromising position, but the said Gita Jena has not

been examined by the prosecution and there is a

serious gap in the circumstance and the learned trial

Court ignoring these circumstance has proceeded

erroneously to convict the appellant. It is also

submitted by him that although PWs.1 to 7 have

deposed in the Court that the convict had threatened

the deceased to kill him for abusing him and his

paramour, but police was not approached in this

regard and, therefore, the motive behind the crime

cannot be said to have been established by the

prosecution against the convict. Mr. Behera, however,

has criticized the impugned judgment for over relying

upon the evidence of finger print expert since the

same was planted and the recovery of MOI-IV being

suspicious, the reliance on CE report by the learned

trial Court is misplaced on erroneous premises for

holding the appellant guilty of the charge. In summing

up his argument, Mr. Behera, learned counsel for the

appellant, has prayed to allow the appeal by setting

aside the impugned judgment of conviction and order

of sentence which according to him is not sustainable

in the eye of law.

6. On the other hand, Mr. G.N. Rout, learned

ASC has, however, strongly submitted that each of the

circumstance so proved against the convict by the

prosecution clearly and unerringly points towards the

guilt of the convict and the circumstances so

established form a chain so complete that it is

incapable of offering any explanation consistent with

the innocence of the convict and the circumstances

taken cumulatively prove only the hypothesis of the

guilt of the convict and, therefore, the impugned

judgment of conviction and order of sentence require

no interference by this Court. Mr. Rout has,

accordingly, prayed to dismiss the appeal.

Analysis of law and evidence

7. After having considered the rival submissions,

this Court proceeds to examine the sustainability of

the conviction of the appellant by going through the

evidence on record extensively and examining the

impugned judgment of conviction meticulously. In

order to prove the charge of murder, the primary

question crops of for discussion is the nature of the

death of the deceased. In this case, there appears no

dispute about the nature of death of the deceased to

be homicidal in nature which is apparent from the

evidence of doctor PW10-Dr. Kabita Nayak which

discloses eight incised wounds, three liner abrasions

and one cut wound on the dead body of the deceased

as well as internal injuries of fractures of right parietal

bone and left occipital bone, subdural haematoma and

effusion of blood in brain, in addition to her further

evidence which transpires that she by examining the

weapon of offence "Bhujali(MOI)" had answered to the

query of the IO affirmatively in Ext.9 by opining that

the death can be caused by MOI. PW10 was cross

examined by the defence, but nothing substantial was

elicited from her mouth to help the appellant in any

way.

8. It is worthwhile to reiterate that motive

assumes great significance in a case of murder.

According to the prosecution, the motive behind crime

(murder) of the deceased was for the reason that the

deceased had abused the appellant after finding him

with his (deceased) cook namely Gita Jena in a

compromise position inside the kitchen and very often

noticing their illicit affairs and the accused(appellant)

had threatened the deceased to kill him, when the

accused was ousted from the Nursing Home. The

above motive was consistently stated by PWs.2, 4, 5

and 7, but such evidence of motive as established

through the evidence of these witnesses has never

been demolished by the defence which is further

consolidated by their evidence to have seen the

appellant giving threatening to kill the deceased. It is

also stated by PW11, the son of the deceased that he

came to know from his late father that the

accused(appellant) who was a sweeper, had illicit

affairs with the lady cook Gita and the deceased

caught both of them red handed and abused the

accused(appellant) and warned him for the same and

he had accordingly advised his late father to remove

the accused from the Nursing Home and his late father

accordingly removed the accused(appellant).

9. Adverting to another circumstance against the

accused-appellant was his disclosure statement before

PW25 in presence of PWs.16 and 23. The testimony of

PWs.16 and 23 transpires that the accused while in

police custody had given recovery of "Bhujali" (MOI)

from a bushy place near the Nursing Home in their

presence pursuant to his disclosure statement and

they signed on the disclosure statement as recorded

by PW25 under Ext.12 and their evidence also

discloses that the accused had signed on such

disclosure statement. The above evidence finds

support from the evidence of IO-PW25, who had

precisely stated about recovery and seizure of MOI at

the instance of the accused and the evidence of these

three witnesses could not be demolished by the

defence in any way to disbelieve the recovery of MOI

at the instance of accused.

10. According to the evidence of PW25, he

has not only seized the MOI, but also seized the

wearing apparels of the accused (i.e. shirt and jean

pant (MO.III and X) and he had sent MO.I, III and X

and other incriminating materials to SFSL, Rasulgarh

for chemical examination under Ext.31 and the CE

report was received from the SFSL vide Ext.32 which

clearly discloses presence of human blood of "O"

Group which was the blood group of the deceased on

MO.I, III and X, but the accused has failed to offer any

explanation as to how the blood stain of the deceased

was found on his wearing apparels and the weapon

recovered at his instance, rather the answer given by

the accused in his statement U/S.313 of Cr.P.C. as to

presence of blood stain of the deceased on these items

as false, which provides additional link to the chain of

circumstance established by the prosecution against

the appellant.

11. Last but not the least, one of the

circumstances against the deceased which is the

strongest circumstance in this case is the finding of

finger print of the accused from the storewell kept in

the bed room of the deceased. The above fact was

established by the evidence of PW25 who testified in

the Court that during the visit, the DFSL team found a

chance finger print on the handle of almirah kept

inside the bed room of the deceased and they took the

developed chance finger print from the almirah also

the photograph thereof which was reiterated by PW17,

who stated in his evidence that he had also taken

photographs of the finger prints which was brought by

the finger print SI-Sarat Kumar Swain from the steel

almirah kept in the room and such evidence further

invigorated by the evidence of Sarat Kumar Swain

being examined as PW19 that he found physical clue

for getting chance finger print on the locker door of

the steel almirah and he developed the print with the

powder and asked the photographer to take the

chance finger print found there and the photographer

took the same in their presence. He(PW19) also took

the specimen finger prints of two of inmates of

Nursing Home. Exts.18 and 19 are the specimen finger

prints of two employees of the Nursing Home. It is

further revealed from the evidence of PW19 that he

took the sample finger prints of the accused (suspect)

and that of one Raja Naik. PW19 has accordingly

identified these specimen finger prints of accused Hari

Naik under Ext.20. More or less the evidence of PW20

transpires that on his direction, PW17 had collected

the finger prints from the almirah kept inside the

room. Although the defence has availed to cross

examine PW17 to 20, but it has not been able to

demolish their evidence with regard to collection of

sample chance finger prints and specimen finger prints

of accused. In addition, PW24 who was the finger print

expert of State Finger Print Bureau, Bhubaneswar and

who had examined the sample chance finger prints

and the finger prints taken from the almirah. PW24 in

his evidence has stated that on comparison, the

chance finger print marked "A" by the IO tallied with

the specimen print marked "X", which is said to be the

right thumb finger print of accused Hari Naik. The

defence has very casually cross examined PW24

without bringing any evidence in cross examination to

disbelieve his evidence which clearly suggests that the

chance finger prints found from the almirah kept in the

bed room of the deceased was the finger print of

accused Hari Naik. On analysis of evidence of PWs.17

to 20 and 24 makes it apparently clear that the finger

print collected from the almirah was that of the

accused Hari Naik(appellant) who in his statement

U/S.313 of Cr.P.C. has expressed ignorance to the

questions of finding his finger print from the house of

the deceased. Thus, this is another piece of strong

circumstance proved against the appellant which

clearly incriminates him.

12. On a careful conspectus of the evidence

on record together with discussion made hereinabove,

it appears to the Court that the prosecution has

proved the following circumstance against the

appellant beyond all reasonable doubt through legally

admissible evidence:

(i) Homicidal death of the deceased.

(ii) Motive of the appellant to kill the deceased.

(iii) Finding of finger prints of the appellant from the storewell kept in the bed room of the deceased.

(iv) Recovery and seizure of weapon of offence "Bhujali(MO.I)" pursuant to the disclosure statement of the appellant and recovery and seizure of wearing apparels of the appellant vide MO.III and X.