Orissa High Court
Banka Nidhi Behera vs State Of Odisha on 1 October, 2024
Bench: D. Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No.61 of 2023
In the matter of an Appeal under section-383 of the Code of
Criminal Procedure, 1973 and from the judgment of conviction and
order of sentence dated 17th February 2023 passed by the
Additional District & Sessions Judge, Kantabanji in Sessions Trial
No.67/62 of 2015-16.
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Banka Nidhi Behera ..... Appellant
-versus-
State of Odisha ..... Respondent
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode:
=========================================================
For Appellant - Mrs. B. Sahoo,
Advocate as Amicus Curiae
For Respondent - Mr. P.K. Maharaj,
Addl. Standing Counsel.
CORAM:
MR. JUSTICE D. DASH
MR. JUSTICE V. NARASINGH
DATE OF HEARING :26.09.2024: DATE OF JUDGMENT:01.10.2024
The Appellant, by filing this Appeal, from inside the jail has
assailed the judgment of conviction and order of sentence dated
17th February 2023 passed by the Additional District & Sessions
Judge, Kantabanji in Sessions Trial No.67/62 of 2015-16 arising out
of G.R. Case No.302 of 2014 corresponding to Bangomunda P.S.
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Case No.90 of 2014 of the Court of learned Judicial Magistrate First
Class, (J.M.F.C.), Kantabanji.
2. The Appellant (accused) thereunder has been convicted for
commission of offence under section 302/201 of the Indian Penal
Code, 1860 (for short 'the IPC') and he has been sentenced to
undergo imprisonment for life and pay of fine of Rs.20,000/- in
default to undergo rigorous imprisonment for four (4) years for the
offence under section-302 of the IPC; and to undergo rigorous
imprisonment for a period of seven (7) years and pay fine of
Rs.10,000/- in default to undergo rigorous imprisonment for six (6)
years for the offence under section-201 of the IPC.
3. Prosecution Case: -
On 27.09.2014, it was around 10 am, one Chandrakanti
Parabhue (Informant-P.W.1) lodged a written report with the
Inspector-In-Charge of Bangomunda Police Station stating therein
that on the previous evening, her son Dasaratha Parabhue while
playing in the house, one Banka Behera (accused) with one Tirtha
Behera came and they called her son namely, Dasaratha to
accompany them in order to bring chicken. The accused, Banka
took Dasaratha who was then aged only seven (7) years with him.
Dasaratha thereafter did not return home. So, the Informant (P.W.1)
with other villagers went to the house of accused. The accused
being absent, they asked the parents of accused as regards the
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whereabouts of Dasaratha who they replied that Dasaratha had not
come to their house with accused. The Informant (P.W.1) and
others then searched for Dasaratha. However, such attempt, went
in vain. On the next morning, the Informant (P.W.1) came to know
that her son was lying dead at Podhkhai Bandh near
Gandharbandh. She then raised suspicion that her son Dasaratha
had been murdered by this accused and others. Thereafter, the
Informant (P.W.1) lodged a written report before the Inspector-In-
Charge, Bangomunda Police Station.
Receiving the said report, the IIC, Bangomunda P.S. (P.W.23),
treated the same as F.I.R. and registering the case, took up
investigation. In course of investigation, he (P.W.23) examined the
Informant (P.W.1) and other witnesses. He visited the spot,
prepared spot map in presence of the witnesses, Ext.12. Then he
apprehended the suspect, Bankanidhi from Khariar and examined
him in the P.S. and recorded his statement. The I.O. (P.W.23) seized
the Hero Honda (CD Dawn) motorcycle and a Micro Max mobile
handset from his possession and prepared the seizure list in
presence of the witnesses. On the next day, the dead body of the
deceased was recovered from Podhkhai Bandh of village
Gandharabandh and inquest over the dead body of Dasaratha was
held in presence of witnesses. The prepared report to that effect is
Ext.7. The dead body was then sent for postmortem examination.
On the same day, the I.O.. (P.W.23) also apprehended Hrusikesh
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Das from his house and examined him and forwarded both the
accused persons to Court and seized the biological samples of the
accused persons and prepared seizure lists in presence of
witnesses. On 29.09.2014, he (P.W.23) examined other witnesses
and recorded their statements. On the same day, the I.O. (P.W.23)
apprehended the accused Chhanda Charan Das and Lingaraj Das
from their houses respectively and seized one NOKIA mobile hand
set from the accused Chhanda in presence of witnesses and
prepared seizure list. He then, seized the wearing apparels of the
accused persons, prepared seizure list in presence of witnesses and
on the same day, the I.O. (P.W.23) arrested the accused persons
namely, Chhanda and Lingaraj. On the next day he sent the
accused persons for medical examination to PHC, Bangomunda
and thereafter, the I.O. (P.W.23) forwarded them to Court. On
30.09.2014, P.W. 23 (I.O.) seized the biological samples of the
accused persons and received the postmortem examination report
(Ext.11) of the deceased from M.O., CHC, Kantabanji and prepared
the seizure list. Thereafter, the I.O. (P.W.23) sent the viscera of the
deceased and other connected materials. He (P.W.23) then arrested
the accused-Bankanidhi on the same day and recorded his
statement in presence of witnesses. On completion of investigation
submitted the Final Form was submitted placing the Appellant and
other three accused persons (already acquitted), to face the Trial for
commission of the offence under section-302(B)/302/201 of the IPC.
JCRLA No.61 OF 2023
4. Learned J.M.F.C., Kantabanji having received the Final Form
as above, took cognizance of the above noted offences and after
observing the formalities committed the case to the Court of
Sessions. That is how the Trial commenced by framing charge
against the accused persons for the said offence.
5. The plea of accused is that of complete denial and false
implication. It is his further defence that he had no involvement in
the death of the deceased.
6. In the Trial, the prosecution examined in total 24 (twenty-
four) witnesses. Out of whom, as already stated P.W.1 is the
Informant, who had lodged the F.I.R. (Ext.1), P.Ws.1, 2, 3, 16 and 17
are said to be the eyewitnesses to the occurrence who have seen the
accused-Banka Nidhi taking the deceased in his motorcycle and
some of them are also witness to the inquest. The P.Ws.5, 6, 8, 14
and P.W.18 are the co-villagers and post occurrence witnesses.
P.W.22 is the Doctor, who had conducted postmortem examination
over the dead body of the deceased and the I.O. has come to the
witness box as P.W.23.
Prosecution besides leading evidence, through by
examination of above witnesses, has also proved several
documents which have been admitted in evidence and marked
Exts. 1 to 24. Out of those, the important are F.I.R. (Ext.1), inquest
report (Ext.7), postmortem report (Ext.11), and spot map (Ext.12).
JCRLA No.61 OF 2023
7. Learned Counsel for the Appellant (accused) submitted that
that the prosecution case is simply based on last seen theory and
this accused has been held guilty for providing no explanation as to
what happened to Dasaratha after he went with him. She further
submitted that the time gap between the deceased last seen with
the accused and the recovery of the dead body being not too short
and only the night having passed, the Trial Court should not have
given so much importance to the non-offering of explanation by the
accused as during the period the deceased coming in contact with
others is not ruled out and in fact that suspicion has also been
raised in the F.I.R. and the very case of the prosecution so suggest
that there was involvement of other accused persons and the Final
Form has been submitted under section-120(B)/302/201/34 of the
IPC, when the charge was also framed for the said offences. Further
developing the submission, she inviting our attention to the
evidence of P.W.1, contended that the credibility of the prosecution
is under grave doubt when Tirtha Bhoi has not been made an
accused. She, thus submitted that with the available evidence on
record, the accused ought not to have been convicted for
commission of offence under section-302/120 of the IPC solely
banking upon the last seen theory. She, therefore, urged for
acquittal of the accused.
8. Learned Counsel for the State (Respondent) placing the
evidence of P.Ws.1, 2 and 3 as also inviting out attention to the
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contents of the F.I.R., Ext.1 submitted that it having been proved
beyond reasonable doubt that the accused had carried the deceased
(male child of seven years old) by giving the reason for such taking,
since has remained silent all through out the night till recovery of
the dead body in the morning that itself is enough to conclude that
it is the accused, who is the author of all the crime; more
particularly as the evidence on record has remained unimpeached
that Dasaratha was taken by this accused from his house, when he
was playing in the pretext of assisting the accused in carrying
chicken by sitting on the motorcycle.
9. Keeping in view the submissions made, we have carefully
read the impugned judgment of conviction impugned in this
Appeal. We have also travelled through the depositions of the
prosecution witnesses, P.Ws. 1 to 24. We too have perused the
documents admitted in evidence and marked as Exts. 1 to 13.
10. The factum of death of Dasaratha is not in dispute.
indisputedly, the nature of death of Dasaratha is not suicidal or
accidental. The prosecution having proved the said aspect through
the evidence of the Doctor (P.W.22) who had conducted autopsy
over the dead body of Dasaratha as also other witnesses, there is
absolutely no challenge to the same. As per evidence of the Doctor,
P.W.22, he has unnoticed three bruises over the left side of the neck
and one of the right side of the neck. It is also his evidence that on
JCRLA No.61 OF 2023
dissection, he found fracture of trenched ring, stomach contained
semi digested with gastric twice with abnormal smell and in the
mouth pharynx and esophagus and lungs kidney liver, spleen,
heart and intestine were congested. The cause of death is stated to
be on account of asphyxia.
11. The plea of the accused is that of complete denial. It is also
stated that his arraignment in the case is simply at the behest of
some persons in enmical terms with him.
It is the evidence of P.W.1, who happens to be the mother of
the deceased that on that day, deceased was playing in their house
and the accused came in a motorcycle and took the deceased with
him. The natural instinct of P.W.1 has also been expressed in this
way that she asked the accused as to why he was taking her son
Dasaratha and got the reply in which at that time, we find that
P.W.1 as mother would have nothing to doubt. This P.W.1 states
that Dasaratha when did not return till next evening, she with
others had gone to the house of accused who was then not present
in the house and his parents told that Dasaratha and the accused
had never gone to the house. It has been brought out during cross-
examination that she had contacted the accused in that evening
around 7.30 pm over telephone but then one Tirtha received the
call, and he expressed his ignorance about the whereabouts of
accused. This P.W.1 has stated during her examination in chief,
without giving time that she had asked the accused over phone and
JCRLA No.61 OF 2023
then accused had replied that Dasaratha was with him and after
some time, he remained in the house and thereafter again when
telephone was made to the accused, he did not pickup, and instead
it was picked up by Tirtha. Thus, it is the evidence of P.W.1 that
around 6 pm in the evening, the accused took the deceased with
him in his motorcycle making him sit as pillion rider. Thereafter, on
7.30 pm, the accused being asked by P.W.1, replied Dasaratha be
with him and assured that (Dasaratha) will be left in the house. But
thereafter, P.W.1 failed to establish in contact with the accused and
despite search also could not trace him out. The dead body was
recovered in the morning from near the pond of the village. The
accused was arrested on 28.09.2014. It appears that I.O. (P.W.23)
finding some materials although had arraigned other accused
persons that it was a conspiracy but no evidence being tendered in
that light, all of them have been acquitted.
P.W.1 although has stated that when Banka took her son
(deceased), Tirtha was also with Banka. But in view of the evidence
of P.W.1 that she had contacted the accused over telephone at 7.30
pm, and then he had assured to leave the deceased after same time
thereafter, said version of P.W.1 about the presence of Tirtha with
the accused when the deceased was taken by the accused pales into
insignificance in raising any doubt in the mind as regards the
complicity of the accused. We again find that the evidence of
P.Ws.2 and 3 provide corroboration to the evidence of P.W.1, when
JCRLA No.61 OF 2023
they have stated that it was around 6 pm in the evening this
accused was taking the deceased-Dasaratha in his motorcycle and
when was asked he , told that the purpose of carrying Dasaratha
was to assist him in bringing chicken by carrying those in the
motorcycle. There has been absolutely no challenge to the said
version of P.Ws.2 and 3. Thus, the prosecution with the above rock
solid evidence in our considered view has proved beyond
reasonable doubt that it was the accused who had taken the
deceased around 6 to 6.30 pm in the evening in his motorcycle and
there after around 7.30 pm, he had informed P.W.1 that the
deceased was with him and would be left in the house after some
time. This being the state of affairs in the evidence, as per the
evidence, the dead body has been recovered on the next morning. It
is found from the evidence of P.W.1 that the accused after receiving
first call around 7.30 pm in the evening was no more available to be
contacted and he was also not in his house. In view of all these,
when accused is not coming forward to explain as to when
Dasaratha left his company and wherefrom Dasaratha left his
Company and for what reason he so did which are within his
special knowledge; as per section-106 of the Evidence Act,
according to us the Trial Court did commit no error in holding that
the prosecution has established the charge of commission of
murder of Dasaratha by the accused beyond reasonable doubt.
JCRLA No.61 OF 2023
Therefore, we the finding of guilt of the accused as has been
returned by the Trial Court is not liable to be interfered with.
12. In the result, the Appeal stands dismissed. The judgment of
conviction and order of sentence dated 17th February 2023 passed
by the Additional District & Sessions Judge, Kantabanji in Sessions
Trial No.67/62 of 2015-16, are hereby confirmed.
(V. Narasingh), (D. Dash),
Judge. Judge.
Narayan
JCRLA No.61 OF 2023
