Orissa High Court
Nandalal Pandey vs State Of Odisha on 20 March, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 54 of 2010
An appeal from the judgment and order dated 04.08.2009
passed by the Addl. Sessions Judge, Nuapada in Sessions Case
No.03 of 2008.
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1. Nandalal Pandey
2. Nathu Pandey ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Akhaya Kumar Beura
Amicus Curiae
For Respondent: - Mr. Jateswar Nayak
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
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Date of Hearing and Judgment: 20.03.2025
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JCRLA No. 54 of 2010 Page 1 of 26
By the Bench: The appellants Nandalal Pandey and Nathu Pandey
along with accused Debakibai Das faced trial in the Court of
learned Additional Sessions Judge, Nuapada in Sessions Case
No.03 of 2008 for the offence punishable under section 302/34
of the Indian Penal Code on the accusation that on 21.08.2007
night at about 9.00 p.m. at Village Karchul, in furtherance of
their common intention, they committed murder of Nilakantha
Sabar (hereinafter 'the deceased'). They were further charged
under section 201 of the Indian Penal Code on the accusation
that knowing that the offence of murder has been committed,
they caused disappearance of evidence by disposing of the dead
body in Dadarpada well, with intent to screen themselves from
the legal punishment.
The learned trial Court vide impugned judgment and
order dated 04.08.2009, while acquitting the co-accused
Debakibai Das of all the charges, found the appellants guilty of
the offences charged and sentenced each of them to undergo
imprisonment for life under section 302/34 of the Indian Penal
Code, however no separate sentence was awarded for their
conviction under section 201/34 of the Indian Penal Code.
JCRLA No. 54 of 2010 Page 2 of 26
Prosecution Case:
2. The prosecution case, in short, is that Nuapada P.S.
U.D. Case No. 23 dated 24.08.2007 was registered on the report
of one Mohd. Hussein of village Malibhata that while he was
going to his field at Dadarpada, he found one gunny bag was
floating in his well. P.W.15 Harekrushna Mallik, S.I. of Police of
Nuapada Police Station enquired into the U.D. case and during
course of such enquiry, he proceeded to the spot and on
25.08.2007, the gunny bag was taken out of the well and after
opening the gunny bag, it was found that there was a dead body
of a male person aged about 32 to 35 years and two big size
stones were inside the gunny bag with the dead body. P.W.15
conducted inquest over the dead body in presence of the
Executive Magistrate and other witnesses and inquest report vide
Ext.2 was prepared. During course of inquest, it was found that
there were cut injuries on the right side neck of the dead body
and the skin of the dead body was completely removed on
account of decomposition. P.W.15 sent the dead body to District
Headquarters Hospital, Nuapada for autopsy. The manner in
which the dead body was found inside the well, P.W.15 came to
the opinion that somebody after committing murder of the
person concerned had put the dead body inside the gunny bag
JCRLA No. 54 of 2010 Page 3 of 26
along with two heavy stones and threw the same inside the well
so that the dead body would not float in the water.
During course of enquiry, P.W.15 ascertained that
the dead body was that of Nilakantha Sabar (deceased) as he
was not seen in the village for last three to four days. During
further enquiry, the complicity of the appellants so also the lady
accused Debakibai Das came to the fore and accordingly, first
information report (hereinafter 'F.I.R.') was lodged by P.W.15
before the officer in-charge of Nuapada Police Station, on the
basis of which Nuapada P.S. Case No.115 dated 25.08.2007 was
registered under sections 302/201/34 of the Indian Penal Code
against the appellants so also the co-accused Debakibai Das.
P.W.14, the officer in-charge himself took up
investigation of the case and examined the witnesses, visited the
spot, prepared the spot map (Ext.22), arrested the appellants
Nandalal Pandey so also co-accused Debakibai Das. While co-
accused Debakibai Das gave recovery of the handle of a Tangia,
on the basis of leading to discovery statement of the appellant
Nandalal Pandey, the police party and the witnesses came to the
pond and one wooden Badi (M.O.I) was seized at his instance as
per seizure list Ext.1. The I.O. also seized blood-stained earth
and sample earth as per seizure list Ext.8 and sent M.O.I to the
JCRLA No. 54 of 2010 Page 4 of 26
Medical Officer who conducted the post mortem examination for
his opinion, received the opinion along with the post mortem
report and the appellant Nathu Pandey was arrested on
28.08.2007 and was forwarded to Court. On completion of
investigation, charge sheet was submitted.
Framing of Charges:
3. Upon submission of the charge sheet, the case was
committed to the Court of Session, where the learned trial Court
framed charges against the appellants along with the co-accused
as aforesaid and all of them pleaded not guilty and claimed to be
tried. Accordingly, the sessions trial procedure was resorted to
establish their guilt.
Prosecution Witnesses, Exhibits and Material Objects:
4. In order to prove its case, the prosecution examined
fifteen witnesses in total.
P.W.1 Jabarsingh Sabar is a co-villager who stated
that on 25.08.2007, when he was taking bath, at that time the
accused Debaki came to him and told him that she was in deep
trouble and sought for his advice and told him that she kept the
deceased as her second husband who had been murdered by
some persons by axe and knife and that the culprits packed the
JCRLA No. 54 of 2010 Page 5 of 26
dead body of the deceased in a gunny bag and threw that bag in
a well belonging to some Khan. He further stated to have
disclosed the matter before the villagers and that a meeting was
convened in the village and the accused Debaki told the villagers
that both the appellants killed the deceased by axe and threw
the dead body in the well.
P.W.2 Ramsingh Sabar is the elder brother of the
deceased who stated that the deceased remained as husband of
accused Debaki in her house continuously for six years till he
died and that he identified his body from the photograph shown
by the police.
P.W.3 Nanda Kumar Sahu stated that as per the
direction of the police, the dead body of the deceased was
guarded which was inside a well and wrapped in a gunny bag
and on the next day morning, it was recovered and cut injury
was found on the neck of the dead body and photographs were
taken.
P.W.4 Sobharam Sabar is a co-villager of the
appellants and stated that he attended a meeting convened in
the village and in that meeting, accused Devaki disclosed that
JCRLA No. 54 of 2010 Page 6 of 26
accused Nandalal and Nathu murdered the deceased and threw
the dead body in a well after putting the same in a gunny bag.
P.W.5 Santaram Sabar is also a co-villager of the
appellants and he stated that on 25.08.2007, villagers of his
village as well as the villagers of Maulibhata assembled near a
well of a Muslim where the dead body of the deceased was found
wrapped in a gunny bag. In the evening hours of the date of
occurrence, the police came and suspecting some foul play, told
them to guard the well and on the next day, the police,
photographer and others came and lifted the gunny bag from the
well and opened it and a dead body of a male person was found.
P.W.6 Hirasingh Sabar has stated that the accused
Devaki disclosed in a meeting that the appellants killed the
deceased by means of Tangia and threw the body in a well
putting it in a gunny bag. Before the police, the accused Devaki
confessed her guilt and told that she would give discovery of iron
portion of tangia and knife and accordingly, she along with
appellant Nandlal led the police to her house and gave recovery
of the same.
P.W.7 Sadanand Sahu stated that when the dead
body of the deceased was removed from the well and taken to
JCRLA No. 54 of 2010 Page 7 of 26
Nuapada, he could identify that the dead body was that of the
deceased as the deceased was close to him and he also told the
police and family members i.e. his brothers that the dead body
belonged to Nilakantha.
P.W.8 Dr. Narendra Kumar Meher was posted as the
Medical Officer, District Headquarters Hospital, Nuapada. On
police requisition, he conducted post mortem examination over
the dead body of the deceased and proved his report vide
Ext.12. He also examined the appellant Nandlal and accused
Devaki on police requisition and proved the reports vide Exts.14
and 15 respectively.
P.W.9 Kishan Das is the minor son of the deceased
and the lady accused and he is an eye witness to the occurrence.
He stated that the appellants Nandlal Pandey and Nathu Pandey
killed his father in the middle part of 2007 at 9.00 p.m. in the
night in his house. He further stated that in that night, the
appellants brought liquor and chicken to his house and told his
father to arrange loan and his father agreed. The deceased and
the appellants took chicken and liquor. The appellants took the
deceased by giving push to their inner room and laid him on a
cot. The appellant Nathu brought out a knife (MO.VII) and dealt
blow on the deceased. When the lady accused obstructed the
JCRLA No. 54 of 2010 Page 8 of 26
blows, she sustained injuries on her palm. The knife blows struck
the neck of the deceased. Appellant Nandlal also dealt Tangia
blows on the neck of the deceased and after receiving the blows,
the deceased died at the spot.
P.W.10 Jaisya Nayak was working as a constable who
had taken the dead body of the deceased to the hospital for
post-mortem examination.
P.W.11 Mohd. Hussein has stated that on
24.08.2007, he had been to his field and smelled something foul
and asked the villagers and all of them came to a well of his field
and noticed something was floating wrapped in gunny bag. The
villagers present on the spot suggested him to report the matter
at the police station and accordingly, he lodged a report vide
Ext.20 and further stated that on the next day, the dead body
was recovered from the gunny bag by police.
P.W.12 Bijay Kumar Singh was working as A.S.I. of
Police, attached to Nuapada Police Station and on that day being
directed by the O.I.C., he seized the wearing apparels as per
seizure list Ext.4.
P.W.13 Padmanav Sahu stated that when the dead
body was recovered packed in a gunny bag from the well of
JCRLA No. 54 of 2010 Page 9 of 26
Hussain Khan, the police conducted inquest over the dead body
in his presence.
P.W.14 Prafulla Bagarty was the officer in-charge of
Nuapada Police Station, who is the Investigating Officer of the
case.
P.W.15 Harekrushna Mallik was the S.I. of Police
attached to Nuapada Police Station and he received the
complaint from Mohd. Hussein (P.W.11) and conducted U.D. case
enquiry and lodged the first information report (Ext.21).
The prosecution exhibited twenty four documents.
Ext.1 is the seizure list of wooden stick, Ext.2 is the inquest
report, Ext.3 is the seizure list of stones, Ext.4 seizure list of
Chadi, Ext.5 is the seizure list of blood group report, Ext.6 is the
seizure list of axe and knife, Ext.7 is the seizure list of plastic
chappal, Ext.8 is the seizure list of sample blood stain earth,
Ext.9 is the seizure list of Xerox copy of ROR, Ext.10 is the
seizure list of xerox copy of patta in the name of Mohd. Hussein,
Ext.11 is the confessional statement before police by accused
Debakibai, Ext.12 is the post mortem report, Ext.13 is the
opinion of query by P.O.8 on M.O.I, Ext.14 is the injury report of
accused Nandalal Pandey, Ext.15 is the injury report of accused
Debakibai Das, Ext.16 is the opinion of query by P.W.8 on
JCRLA No. 54 of 2010 Page 10 of 26
M.O.VII, Ext.17 is the blood grouping report of accused Debaki,
Ext.18 is the report regarding blood grouping of accused Debaki,
Ext.19 is the report of P.W.8 regarding collection of 10 digits of
dead body, Ext.20 is the U.D. F.I.R., Ext.21 is the written report
of P.W.15, Ext.22 is the stop map, Ext.23 is the confessional
statement before police by appellant Nandlal and Ext.24 is the
Chemical Examination Report.
The prosecution also proved nine material objects.
M.O.I is the wooden stick of cot, M.O.II is the five pieces of
gunny bag, M.O.III is the two big stones, M.O.IV is the plastic
rope, M.O.V is the chadi, M.O.VI is the Tangia, M.O.VII is the
knife, M.O.VIII is the plastic chappal and M.O.IX is the handle of
Tangia.
Defence Plea:
5. The defence plea of the appellants was one of denial
and the appellant Nathu Pandey took a specific plea that on the
date of occurrence, he had been to his daughter's house and he
knew nothing about the occurrence.
Findings of the Trial Court:
6. The learned trial Court after assessing the oral as
well as documentary evidence on record, came to hold that the
JCRLA No. 54 of 2010 Page 11 of 26
deceased Nilakantha was not seen in the village from the
occurrence day till his dead body was found from the well and
that is a strong circumstance against the appellants. The learned
trial Court taking into account the evidence of the doctor (P.W.8)
came to hold that the deceased had met a homicidal death and
the evidence of P.W.9, the child witness was accepted by the
learned trial Court as an eye witness to the occurrence. The
learned trial Court came to the conclusion that the appellants
had prior concert and pre-arranged plan to kill and shared their
common intention in disposing of the dead body with an attempt
to frustrate the course of justice and therefore, the appellants
were found guilty under sections 302/201/34 of the Indian Penal
Code. However, it was held that the prosecution has failed to
establish the charges against the lady accused Debakibai Das.
Accordingly she was acquitted of all the charges.
Contentions of the Parties:
7. Mr. Akyaya Kumar Beura, learned Amicus Curiae
appearing for the appellants contended that there is no clinching
material available on record to show that the dead body which
was recovered from the well in Dadarpada was that of the
deceased Nilakantha Sabar. According to him, the dead body
was identified from the photograph by P.W.2, who is the elder
JCRLA No. 54 of 2010 Page 12 of 26
brother of the deceased but the photograph was not proved
during trial. He further argued that the evidence on record
particularly that of P.W.8, the doctor who conducted post
mortem examination would indicate that from the body, all the
skin was absent except on both the feet and maggots were seen
over the upper part of chest and neck and therefore, it cannot be
said that the prosecution has successfully established the
identity of the dead body to be that of the deceased. He further
argued that the star witness on behalf of the prosecution is a
child witness, who was the son of the lady co-accused who faced
trial and got acquitted and the said child witness disclosed about
the occurrence six to seven days after the incident and before
disclosing it to the investigating officer, he had not disclosed
about the same before anyone and the belated disclosure creates
doubt about the truthfulness of the version of P.W.9. Learned
counsel further argued that even though on the basis of the
doctor's evidence, the prosecution can be said to have proved
that it is a case of homicidal death, but in view of the shaky
nature of evidence available on record and absence of clinching
evidence relating to the identification of the dead body and
belated disclosure of the child witness who can be easily tutored
to depose against the appellants shielding his mother, the co-
JCRLA No. 54 of 2010 Page 13 of 26
accused, it would be unsafe to base conviction of the appellants
on such evidence and therefore, it is a fit case where benefit of
doubt should be extended in favour of the appellants.
8. Mr. Jateswar Nayak, learned Additional Government
Advocate on the other hand supported the impugned judgment
and submitted that the evidence of the child witness (P.W.9) has
practically remained unchallenged and his evidence gets
corroboration from the medical evidence. The statement of P.W.9
has been recorded two days after the registration of the F.I.R.
and therefore, it cannot be said that there is inordinate delay in
disclosure by P.W.9 about the occurrence. He further argued that
P.W.2 being the elder brother of the deceased has identified the
dead body by seeing the photograph so also P.W.7, who is a co-
villager of the deceased and present at the time of recovery of
the dead body. Merely because the photograph shown to P.W.2
could not be proved during trial, the same cannot be a ground to
discard the evidence of identification of the dead body to be that
of the deceased, more particularly when the witnesses like P.W.3
has stated that police took the photographs of the dead body
which is also the evidence of P.W.15, the police officer who
conducted U.D. Case enquiry and the said evidence has
remained unchallenged. He argued that the learned trial Court
JCRLA No. 54 of 2010 Page 14 of 26
has rightly found the appellants guilty and therefore, the
impugned judgment and order of conviction should not be
interfered with.
Discussion and analysis of evidence:
9. Adverting to the contentions raised by the learned
counsel for the respective parties, we shall first deal with the
contention regarding the identification of the dead body.
P.W.2, the elder brother of the deceased has stated
that he was called to the police station and the police showed
him a photograph and he identified the dead body to be that of
his brother Nilakantha Sabar (deceased). In the cross-
examination, he has stated that he has not seen the dead body
of Nilakantha. Though learned defence counsel has given
suggestion to P.W.2 that he had not identified the photograph of
Nilakantha in the police station, but he has denied the same.
From the evidence of P.W.3, it appears that the
photograph of the dead body was taken and no suggestion has
even been given to P.W.3 that no such photograph has been
taken.
P.W.5 has stated that after the matter was reported
to the police, the police came to the village with photographer
JCRLA No. 54 of 2010 Page 15 of 26
and the gunny bag was lifted from the well and it was opened
and then the photographer took the photographs. No suggestion
has been given that no photograph of the dead body was taken.
P.W.7 was close to the deceased and he stated that
the dead body that was recovered from the well was that of the
deceased.
P.W.15, the informant who is also the S.I. of Police
has stated that during course of U.D. Case inquiry, he took
photographs of the dead body and the evidence of this witness
has also remained unchallenged.
Though the photographs of the dead body have not
been proved during the trial, but in view of the evidence
discussed above, we are of the view that the photograph of the
dead body was taken during the U.D. case inquiry and it was
placed before P.W.2, the elder brother of the deceased and he
has identified the dead body to be that of the deceased.
P.W.8, the doctor though noticed some features
regarding absence of skin on the major part of the body and
found maggots over the chest and neck and has stated that the
dead body which was sent to him was not capable of being
identified, but in view of the evidence of P.W.2 and P.W.7, we
JCRLA No. 54 of 2010 Page 16 of 26
are of the view that the prosecution has successfully established
the identity of the dead body to be that of the deceased.
Therefore, the contention of the learned Amicus
Curiae that the prosecution has failed to establish the dead body
recovered from the well in Dadarpada to be that of the deceased,
cannot be accepted.
10. Now, coming to the next aspect whether the
prosecution has proved the death of the deceased to be
homicidal in nature, we find that apart from the inquest report
(Ext.2), the evidence of P.W.8, the doctor who conducted post
mortem examination is very clear. P.W.8 noticed that there were
six numbers of antemortem wounds over the neck of the
deceased. The injuries are as follows:
(1) Just below the mandible of size 5cm x 2cm
x 2cm irregular margin;
(2) Centre of neck 4" x 3cm x 2" trachea and
oesophagus were cut down;
(3) 3cm from the centre of the second wound
of size 2" x 3" x 2" in right side artery vein
muscle was cut down;
(4) 2 cm from the 3rd wound of size 4" x 2cm x
2";
(5) & (6) wound 2cm apart from the 4th wound.
JCRLA No. 54 of 2010 Page 17 of 26
P.W.8 further opined that all the wounds are on the
right side of the neck, all these injuries might be due to sharp
cutting weapon and the cause of death was due to injury to the
large vessels, trachea and larynx and the death was homicidal in
nature and all the injuries in the neck taken together are
sufficient in the ordinary course of nature to cause death. The
post mortem report has been marked as Ext.12.
Learned Amicus Curiae has also not challenged the
homicidal death aspect and therefore, in view of the evidence of
P.W.8 coupled with the post mortem report Ext.12 and the
inquest report, we are of the view that the learned trial court is
justified in holding that the prosecution has established the
homicidal death of the deceased.
Evidence of eye witness (P.W.9):
11. The star witness P.W.9 Kisan Das deposed in trial
Court on 25th September 2008, which was a year after the
occurrence. At that point of time, he was a student in the High
School. Some formal questions were put to P.W.9 by the learned
trial Court to test his intellectual capacity and understanding and
on the basis of the answers given by the witness, the learned
trial Court came to hold that P.W.9 understood the questions and
JCRLA No. 54 of 2010 Page 18 of 26
was giving rational answers. Treating this witness to be a
competent witness, his evidence was recorded. We have perused
the questions put by the learned trial Court and answers given
by P.W.9. We are of the view that the learned trial Court has
taken sufficient precautions before recording the evidence of the
child witness and the learned trial Court rightly held the child
witness to be a competent one.
P.W.9 in his evidence has stated that the co-accused
Debakibai Das was his mother and the deceased was his father.
The occurrence took place in the night in the middle part of 2007
in his house. He further stated that the appellants told the
deceased to arrange some loan to which the deceased agreed
and thereafter chicken curry was prepared and two appellants
and deceased took chicken curry and liquor and then the
deceased vomited and then both the appellants took the
deceased by giving push to the inner room and laid him on a cot
and thereafter the appellant no.2 Nathu Pandey brought out a
knife and dealt blows to the neck of the deceased. At that time,
his mother (co-accused Debakibai Das) obstructed the blows for
which she sustained injuries on her palm and the appellant no.1
Nandalal Pandey dealt tangia blow on the neck of the deceased
and after receiving such blows, the deceased died at the spot. He
JCRLA No. 54 of 2010 Page 19 of 26
further stated that both the appellants put the dead body of the
deceased in a gunny bag and took it away from their house and
since that day, he could not trace his father.
In the cross-examination, P.W.9 has stated that the
appellant no.2 Nathu Pandey dealt two to three knife blows to
the throat of the deceased and appellant no.1 Nandalal Pandey
dealt tangia blow to the throat of the deceased. Nothing has
been elicited in the cross-examination to doubt the veracity of
the eye witness and as such his evidence has remained
unshaken.
The evidence of P.W.9 gets corroboration from the
evidence of the doctor (P.W.8), who noticed a number of injuries
which could have been caused by sharp cutting weapon on the
right side of the neck of the deceased. The doctor also found
that one incised wound on the left hand near the third finger of
the lady accused Debakibai Das and it was opined to be simple in
nature but could have been caused by a sharp cutting weapon.
The knife (M.O.VII) which was seized was sent to P.W.8 for his
examination and opinion and he has opined that the injury
noticed on co-accused Debakibai Das could be caused by M.O.VII
and the report has been marked as Ext.16.
JCRLA No. 54 of 2010 Page 20 of 26
The evidence of P.W.9 was attacked on the ground
that he did not disclose about the incident before anybody and
for the first time disclosed the same before the Investigating
Officer six to seven days after the incident. We found that the
F.I.R. was lodged on 25.08.2007 and the statement of P.W.9
under section 161 of Cr.P.C. was recorded on 27.08.2007. P.W.9
has stated in his cross-examination that they could not come out
of their house for four days as the appellants Nandlal Pandey and
Nathu Pandey put lock in their house from outside. He further
stated that he along with her sister and mother (co-accused
Debakibai Das) were called to the police station where third
degree was applied to his mother.
Law is well settled that so far as the children are
concerned, no precise age is fixed by law within which they are
absolutely excluded from giving evidence on the presumption
that they do not have sufficient understanding. Neither can any
precise rule be laid down with respect to the degree of
intelligence or knowledge which will render a child a competent
witness. Competency of the child witness can be ascertained by
questioning him/her to find out his intelligence to understand the
occurrence witnessed and ability to speak the truth before the
Court and thereby if his/her statement inspires confidence, it can
JCRLA No. 54 of 2010 Page 21 of 26
be relied upon even without corroboration. Competency of a child
witness cannot be questioned if his evidence is otherwise
probable and true. In view of section 118 of the Evidence Act, all
persons are competent to testify unless the Court considers that
they are prevented from understanding the questions put to
them, or from giving rational answers to those questions due to
tender years etc. Competency to testify depends on ability to
understand questions and to give rational answers. It depends
on the capacity and intelligence of the child witness, his
appreciation of difference between the truth and falsehood as
well as his duty to speak truth.
No doubt the evidence of the child witness is to be
taken with great caution as they are prone to tutoring. However,
nothing has been brought out in the cross-examination of P.W.9
that he had been tutored by anybody to give his statement
either before the Police or the learned trial Court. The manner in
which P.W.9 has deposed about the occurrence in examination-
in-chief and also faced and stood the test of searching cross-
examination by the defence counsel, we are satisfied about his
competency.
The evidence of P.W.9 appears to be clear, cogent,
trustworthy and above board. Therefore, we are of the view that
JCRLA No. 54 of 2010 Page 22 of 26
the learned trial Court has rightly placed reliance on the evidence
of P.W.9 particularly when it is getting corroboration from the
medical evidence. The evidence of P.W.9 that the dead body was
kept in a gunny bag is also getting corroboration from the other
evidence on record that the dead body was recovered from the
well in a gunny bag.
Extrajudicial Confession by accused Debakibai Das in the
village meeting:
12. It appears from the extrajudicial confession by
accused Debakibai Das in village meeting that it is exculpatory in
nature.
In case of Suresh Budharmal Kalani @ Pappu
Kalani -Vrs.- State of Maharashtra reported in 1998 (4)
Crimes 1 (SC), it is held that a bare perusal of the statement of
the accused makes it abundantly clear that it is self-exculpatory
and hence inadmissible in evidence as 'confession'. In case of
Gunanidhi Moharana -Vrs.- State reported in (1993) 6
Orissa Criminal Reports 158, it is held that the requirement of
section 30 of the Evidence Act is that before it is made to
operate against the co-accused, it should be strictly established.
In other words, what must be before the Court should be a
JCRLA No. 54 of 2010 Page 23 of 26
confession proper and not a mere circumstance or information
which could be an incriminating one. Secondly, it being the
confession of the maker, it is not to be treated as evidence
within the meaning of section 3 of the Act against the non-maker
co-accused and lastly, its use depends on finding other evidence
so as to connect the co-accused with the crime and that too as a
corroborative piece. It is only when the other evidence tendered
against the co-accused unmistakably points to his guilt then the
confession duly proved could be used against such co-accused if
it appears to affect him as lending support or assurance to such
other evidence. It is only when a person admits guilt to the
fullest extent and exposes himself to the pains and penalties
provided for his guilt, there is a guarantee for his truth and the
legislature provides that his statements may be considered
against his fellow accused charged with the same crime. In that
case the Hon'ble Judges after reading Ext. 24 which is the
confession of accused Gobinda, held that there was no self-
implication and in fact he has tried to extricate himself by stating
that he was merely a witness to the occurrence and was not a
participant. In case of Champa Rani Mondal -Vrs.- State of
W.B. reported in 2001 Supreme Court Cases (Criminal)
JCRLA No. 54 of 2010 Page 24 of 26
1514, it is held that exculpatory confession is inadmissible in
evidence and conviction cannot be based on such confession.
Even though no importance can be attached to the
extrajudicial confession made by the lady co-accused Debakibai
Das in the village meeting as it is exculpatory in nature, but we
are of the view that the learned trial Court has rightly found both
the appellants guilty of the offence charged since in view of the
evidence of P.W.9 and other evidence, it is clear that not only
the appellants committed murder of the deceased but also tried
to cause disappearance of evidence by disposing of the dead
body in the Dadarpada well with intent to shield themselves from
legal punishment.
Accordingly, the conviction of the appellants under
sections 302/201/34 of IPC is upheld. The Jail Criminal Appeal is
dismissed.
13. Before parting with the case, we would like to put on
record our appreciation for Mr. Akhaya Kumar Beura, the learned
Amicus Curiae for rendering his valuable help and assistance
towards arriving at the decision above mentioned. The learned
Amicus Curiae shall be entitled to his professional fees which is
fixed at Rs.10,000/- (rupees ten thousand only). This Court also
JCRLA No. 54 of 2010 Page 25 of 26
appreciates the valuable help and assistance provided by Mr.
Jateswar Nayak, learned Additional Government Advocate.
Trial Court records, if received be sent back to the
concerned Court along with a copy of the judgment forthwith.
..............................
S.K. Sahoo, J.
................................
Savitri Ratho, J.
Orissa High Court, Cuttack
The 20th March 2025/Puspa/Sukanta
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 24-Mar-2025 14:36:45
