Basu Munda vs State Of Orissa

S.K.Mishra, J.

This is a case of nepoticide. The sole appellant has been convicted by the learned Sessions Judge, Keonjhar for the offence under Section 302 of

the Indian Penal Code, 1860 (hereinafter referred as ‘the Penal Code’, for brevity) for having committing murder of his own nephew in the

night intervening 14/15.07.1997. His conviction and sentence to undergo imprisonment for life passed by the learned Session Judge, Keonjhar in

Sessions Trial Case No.3 of 1998 on 14.12.2001 are assailed in this appeal.

The case of the prosecution, in short, is that the appellant and father of the deceased happen to be brothers. They reside in separate houses but in

the same village. On 14.07.1997 evening, apprehending danger from the villagers, the appellant came to the house of his elder brother and requested to

stay there. He was served with a dinner. He, the deceased and younger sister of the deceased, namely, Surubali Munda, a young girl aged about 4

years, at that time, slept in the kitchen of the house of the informant. On the next morning, P.W.1, mother of the deceased, Smt. Raimani Munda,

knocked the door of the kitchen but the appellant did not open the door. He gave out that he has committed murder of her son Dabar Munda and will

also kill anybody, who will try to enter into the kitchen. Then neighbours were called, report was lodged before the A.S.I. of Police, Suakati Out-post,

who made a S.D. entry and took up preliminary investigation by sending the report to the O.I.C., Sadar Police Station, Keonjhar for registration of the

F.I.R. He proceeded to the spot, arrested the appellant, and examined the witnesses and handed over the investigation to the C.I., S.K. Mahanty. The

latter on completion of investigation, submitted charge sheet against the appellant.

The defence took the plea of denial of offence of murder but in his statement under Section 313 of the Code of Criminal Procedure, 1973

(hereinafter referred as ‘the Code’, for brevity) he admitted that he slept inside the kitchen of that house in the relevant night along with the

deceased Dabar Munda, but he denied to have committed murder of the deceased.

In order to prove its case, the prosecution examined 15 witnesses and led into evidence 12 Exhibits and one material object i.e., ‘tangia’ being

the weapon of offence. P.W.2, Ghasia Munda is the informant in this case. P.W.1, Smt. Raimani Munda is the first witness, who could know about

the murder of the deceased and refusal of the appellant to open the door of the kitchen. P.W.3, Sukura Munda, P.W.4, Mata Munda, P.W.5, Dutia

Mahakud are the other witnesses, who came to the spot on being informed by the P.Ws.1 and 2 and found the appellant locked up inside the room and

was not opening the same and was not allowing anybody to enter the room. P.W.5, Dutia Mahakud, P.W.6, Judhistir Barik, P.W.7 Budha Munda and

P.W.10, Narottam Dangua are all formal witnesses being the witnesses to the seizures. P.W.8, Dr. Pratap Chandra Rana has conducted the

postmortem examination on the dead body of the deceased. P.W.9, Dr. Chita Ranjan Sethi, on police requisition, conducted test determining the blood

group of Basu Munda to be ‘B’ Positive. P.W.11, Birbar Pradhan, Constable-21, escorted the dead body of the deceased to District Head

Quarters Hospital, Keonjhar for conducting postmortem examination. P.W.12, A.S.I. Dhaneswar Sahu was the Officer-In-Charge of Suakati Out-

post. He received the report of P.W.2 and took up preliminary investigation. P.W.13, Bainshnab Charan Biswal is the Scientific Officer of District

Forensic Science Laboratory, Keonjhar. He has collected physical clues from the place of occurrence. P.W.14, Maheswar Mahanta is another police

constable in whose presence seizure was made by the O.I.C., Suakati Out-Post, P.W.15, Susil Kumar Mohanty was the C.I. Sadar, Keonjhar. He has

conducted the investigation of the case and submitted charge sheet against the appellant.

The defence has not examined any witness on its behalf.

Basing on the evidence of P.Ws.1 and 5 and the attending circumstances like findings of the doctor conducting postmortem examination, his opinion

on examination of the weapon of offence, finding of the blood group of human group ‘B’ on the axe, khajuripati (met), blood stains on saree and

half shirt, and half pant of the deceased, the learned trial judge has come to the conclusion that the prosecution has established its case beyond all

reasonable doubt and proceeded to convict the appellant under Section 302 of the Penal Code and sentenced him to undergo imprisonment for life.

Learned Amicus Curiae, Mr. Satya Narayan Mishra does not dispute the findings of the learned Sessions Judge that the death of the deceased was

homicidal in nature. In fact, the evidence of the doctor P.W.8 and his opinion on examination of the weapon of offence i.e., M.O.-I together with the

contents of the postmortem examination report Exhibit-3 conclusively established that death of the deceased was homicide in nature. The learned

Amicus Curiae, however, disputes the complicity of the appellant in commission of the crime. He draws attention of the Court to the evidence of

P.Ws.1 and 2, the parents of the deceased, who have stated on oath that after their dinner, the appellant slept with their son Dabar and daughter

Surubali Munda in one room, which was also used as kitchen. It is argued by the learned Amicus Curiae that if Surubali was present inside the kitchen

where the alleged offence took place, then the appellant cannot be made liable for commission of the offence in view of the fact that the appellant

cannot be held to be alone with the deceased at the time of commission of offence.

Mrs. Saswata Patnaik, learned Additional Government Advocate, on the other hand, submits that though Surubali has not been examined in this

case, it will not affect the case of the prosecution as P.W.2 has categorically stated in his Examination-In-Chief that Surubali was about 3 years

younger to Dabar. At that time, Dabar, the deceased, was aged about 7 years. The occurrence took place in night between 14/15.7.1997 and the

evidence was recorded in July, 2001. By the time, the investigation was conducted, the younger sister of the deceased was only 4 years old. So, the

contention of the learned Amicus Curiae that the appellant was not alone with the deceased will not be of much help to the appellant.

We are of the view that, because of the nature of injury found on the neck of the deceased, which was stated to be caused by weapon of offence

i.e., M.O.-I being a ‘tangia’, could not have been caused by a small child aged about 4 years old. Keeping in view the peculiar facts of the case

and the fact that Surubali Munda was very young girl, aged about 4 years, at the time of occurrence, her non-examination is also of no consequence in

this case.

We have carefully examined the evidence of P.Ws.1 to 5. It is well established by the prosecution that in the previous night, the appellant came to

the house of P.W.2. He expressed his apprehension about the danger to his life from other villagers. Therefore, he was asked to stay in their house

and P.W.1 served dinner to him. He, the deceased, and Surubali slept inside a room, which was also used as kitchen. On the next day, P.W.1 knocked

the door and the appellant did open and threatened her stating that he has already killed Dabar. It is also apparent from the record that P.W.2 also

came and other neighbours were called but the appellant did not open the door. So, ASI, Suakati Out-post was informed. He came and apprehended

the appellant.

Keeping in view the clinching evidences, though, it is not direct evidence in the sense that none of these witnesses has seen the actual commission

of crime, we are of the opinion that the prosecution has established its case beyond all reasonable doubt. Hence, we are not inclined to interfere with

the findings recorded by the learned Sessions Judge, Keonjhar. In the result, the appeal is dismissed.

Accordingly, the CRA is disposed of.

The Trial Court Record (T.C.R.) be returned back to the trial court forthwith.

As restrictions are continuing for COVID-19, learned counsel for the parties may utilize the soft copy of this judgment available in the High

Court’s website or print out thereof at par with certified copies in the manner prescribed, vide Court’s Notice No.4587, dated 25.03.2020.