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2017 DIGILAW 1244 (ORI)

Arta @ Artatran Sahu v. State Of Orissa

2017-11-01

S.PANDA, S.PUJAHARI

body2017
JUDGMENT S. Pujahari, J. - The appellant herein, challenges the judgment of convivtion and order of sentence dated 11.08.2002 passed by the learned Judge, Special Court-Cum-Sessions Judge, Dhenkanal in C.T. (Special) Case No. 25 of 2003 holding him guilty under Sections 457, 363, 302 of the Indian Penal Code, 1860 (for short "the IPC") and convicting him thereunder. The appellant was sentenced to undergo R.I. for life and to pay a fine of Rs. 1,000/-, in default, to undergo R.T. for a further period of six months under Section 302 of IPC. R.I. for three years and to pay a fine of Rs. 500/-, in default, to undergo R.I. for a further period of three months under Section 363 of IPC and R.I. for three years and to pay a fine of Rs. 500/-, in default to undergo R.I. for a further period of three months under Section 457 of IPC with a direction that the substantive sentences are to run concurrently. 2. The case against the appellant, as set up by the prosecution, was that the appellant had sacrificed one Sitakanta Behera, aged about 7 years before the Deity at village-Rusimadhia located in Jharan forest as an offering to get blessing. To sacrifice a boy before the 'God' as offering, in the intervening night of 29/30.09.2 0 02 the appellant stealthily entered into the dwelling house of Pramod Kumar Behera (P.W.3) and kidnapped his son-Sitakanta Behera, aged around 7 years while he was fast asleep. The appellant sacrificed that boy before the Deity as an offering in that night by beheading the boy. After offering and completing the ceremonies, the appellant threw the trunk and head of the deceased at different places around that temple in that forest and concealed the weapon of offence, i.e., Katuri in a well situated close to that temple. On the next morning when P.W 3 could not trace his minor son he searched for him here and there and subsequently lodged a missing report at 8.30 a.m. on 30.09.2002 at Balimi Police Station. Before the deceased remained untraced he was wearing a red strip short and having also a red thread around his neck with a silver pendent with inscription of "Lord Jagannath" thereon. Before the deceased remained untraced he was wearing a red strip short and having also a red thread around his neck with a silver pendent with inscription of "Lord Jagannath" thereon. On 03.10.2002, P.W.3 and others found the beheaded body of the missing child lying inside a bush near the temple and subsequently they also traced the head lying on the Western side of that temple in a bush. Immediately, police was informed, the body was recovered and sent (or post-mortem examination. On suspicion, the appellant was arrested and while in police custody he gave recovery of the alleged weapon of offence (M.O.VI) concealed in a well by which he beheaded the child The Investigating Officer also seized the wearing apparels of the deceased as well as a red thread with pendent (M Os.I. II and III) found near the temple and also seized few other incriminating materials like Puja articles On completion of the investigation PW.12 submitted charge-sheet against the appellant he having allegedly committed the aforesaid offence. On the basis of materials placed by the Investigating Officer, the Trial Court in framed charge under Sections 457, 363 and 302 of IPC read with Section 3(2)(v) of the Schedule Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The appellant having pleaded not guilty to the charge, prosecution examined 15 witnesses and exhibited 23 documents and 11 Material Objects. However, while incriminating circumstances were put to the appellant under Section 313 Cr.P. he admitted to have kidnapped and killed the deceased child. The learned Trial Court on consideration of entire evidence came to a conclusion that the appellant made a human sacrifice, thereby committed murder of the deceased. Sitakanta Behera having kidnapped the child from the lawful custody of his parents. However in absence of sufficient materials, the Trial Court held the appellant not guilty of the charge under Section 3(2)(v) of the S.C. & S T. (PoA) Act. Accordingly, sentences were imposed as stated earlier. Hence this Jail Criminal Appeal. 3. The learned counsel for the appellant contended that there being no direct evidence that the appellant had committed the offences alleged against him and the circumstances relied on by the learned Trial Court being not established conclusively showing the guilt of the appellant, the judgment of conviction and order of sentence imposed are liable to be set-aside. 4. 3. The learned counsel for the appellant contended that there being no direct evidence that the appellant had committed the offences alleged against him and the circumstances relied on by the learned Trial Court being not established conclusively showing the guilt of the appellant, the judgment of conviction and order of sentence imposed are liable to be set-aside. 4. Assailing such contention raised on behalf of the appellant, the learned Additional Standing counsel defended the judgment of conviction and order of sentence, particularly when the appellant admitted to have killed the deceased 5. Except for such admission of the appellant to have committed the murder of the deceased, the entire in this case is circumstantial. The learned Trial Court has narrated the circumstances found in great details. 6. P W.9. Dr. Pabitra Mohan Biswal of Sub-Divisional Hospital, Hindu had conducted autopsy on the dead body of the deceased on 03.10.2002. He has deposed and incorporated in his post-mortem examination report (Ext. 12) that a trunk and head of a boy were produced for post-mortem examination and the doctor has observed the followings ."(i) The head had been amputed from the trunk. I found rigormortis on the body which was swellen and putrified Magots were all over the body The deceased boy was about 7 years old. 4. My examination revealed that the head from the neck part was severed by a cutting weapon. The vertebra column was visible. 5. The death was.caused due to haemorrhage and shock due to heavy bleeding. This is sufficient to cause the death of a person. The beheading injury is antemortem in nature Death was caused between five to six days prior to my examination." This P.W.9 has further added that body and head belonged to same person. On 27.11.2002 the seized Katuri (M.O ,VI) was also produced before the doctor and with reference to that weapon of offence, after the doctor and with reference to that weapon of offence, after verifying the dimention he opined that M.O.VI was the weapon of offence, by which the body was beheaded. In cross-examination the doctor has clarified that point and added that a single blow by force by means of M.O.VI can cause beheading of a child of 7 years old. In cross-examination the doctor has clarified that point and added that a single blow by force by means of M.O.VI can cause beheading of a child of 7 years old. This evidence of the doctor leaves no room to doubt that Sitakanta Behera who remained untraced in the intervening night of 29/30.09.2002 was killed where his body was beheaded and that act was done by a weapon of offence like M.O.VI. 7. P.W.3. the father of the deceased has testified the entire episode in his inimitable style which has been dealt with by the learned Trial Court in extensor in paragraph-6 of its judgment P W.3 has identified the dead body of his son who was kidnapped from the house on that fateful night. The evidence of PWs. 24 and 5 has sent further assurance to such statement of PW.3 This evidence establishes that on the intervening night of 29/30.09.2002 the deceased was kidnapped and was subsequently beheaded where body was recovered on 03.10.2002 around 4 p.m. near the temple of the village situated in a forest. The PWs 10 and 12, the Investigating Officers have stated in detail all such aspects which have been elaborately considered by the learned Trial Court 8. Admittedly, there is no direct evidence as to who beheaded the deceased by means of M.O.VI, when the entire case rests on circumstantial evidence. The learned Trial Court narrated different circumstances as under (i) The appellant was regularly worshipping the village deity located in Jharan forest. This is proved from the evidence of PWs 1 and 2 and a saint (P.W. 14) who was then staying in a Matha near that temple when the villagers searching the boy around that forest area, PWs 1 and 2 had seen the appellant in that temple The P.W. 14 added that about one and half.months prior to that fateful day the appellant and his mother had come to him and offered him "Durga Chalisa", "photos Of Goddess Kali", A Garland Consisting Of Small Sandlestud and some other photos of different Goddess marked as M.Os. VII to XI P.W. 14 had also stated that the appellant had disclosed before him that he had brought M.Os.VII to XI from Bombay and he regularly dreamt for which brought those articles Those Materials Objects were seized in course of investigation under Ext X. P.W. 14 further added that the appellant prostrated before the deity day in day out to get blessings. Prosecution relied on these circumstances to show that prior to that fateful date the appellant was prostrating in the temple to get blessings of the deity. (ii) P.W.7, a boy of tender age, has testified that around one and half years preceding the date of occurrence around 9 a.m. while he was following his father enroute their agricultural field negotiating Jharan forest he found the appellant coming out of that temple and followed him. He was frightened and terrified and ran for his life to his father. Finding his father, the appellant did not further chase the P.W.7 and left the place This witness has also added that on the next morning he also found the appellant moving around their village and he communicated the said fact to his father. (iii) P.W 11, the Scientific Officer, had collected a thread affixed with a silver pendent with inscription of Lord Jagannath from the southern side of the temple. That P.W. 11 also seized one empty Samaja 100 incense stick packet from that place. All these circumstances lead to an unerring conclusion that the appellant was prostrating before the deity in that temple and apparently he was in search of a boy to give human sacrifice to fulfill his dream of getting blessing of the Deity. (iv) P.W. 11, the Scientific Officer, has also collected blood patches from the floor of the temple and also collected blood scraping from the temple floor. (v) While in police custody the appellant disclosed before PW 12, the Investigation Officer that he would show the place where a 'Katuri' has been concealed and, accordingly, led the police and independent witness like P.W.5 to a well near that temple where Fire Brigade personnel dewatered the well and found a Katuri' having bloodstained. It was seized under Ext.8 The information given by the appellant is noted in Ext.9. M.O.VI is that Katuri'. PWs. 5, 6 and 12 testified this aspect. It was seized under Ext.8 The information given by the appellant is noted in Ext.9. M.O.VI is that Katuri'. PWs. 5, 6 and 12 testified this aspect. (vi) P.W. 15, the Investigating Officer, had transmitted that 'Katuri' (M.O.VI) to the doctor, P.W.9 who conducted post-mortem examination to ascertain as to whether that weapon of offence was used to behead the deceased. P.W.9 has opined that the weapon like M.O.VI was the possible weapon of offence used by the assailant in beheading the boy. That M.O.VI was also sent for chemical examination under Ext.20. Chemical examination report, Ext.22 revealed that the 'Katuri' contained blood but insufficient for serological test possibly when that 'Katuri' was concealed in a well over three days. Recovery of the weapon of offence consequent upon the information given by the appeflant suggests that he was the author of the concealment of that 'Katuri', M.O.VI, the possible weapon of offence. It is admissible under section 27 of the Indian Evidence Act, 1872. (vii) P.W. 11 who had collected blood scraping from the floor of the temple, and bloodstain earth from the southern side of the temple were also sent for chemical examination under forwarding report, Ext.20. The chemical examination report, Ext.22 reveals that it was human blood. The empty Samaja 100 incense stick packet had also cpntained human bloods. All such lead to a highly probable and reasonable conclusion that a human body was sacrificed in that temple before the deity on that fateful night. (viii) The dead body of the child was found lying near that temple when the appellant was present in the temple as deposed by PWs. 1 and 2. Except the appellant none was present or visited that temple during those three days. When the appellant was prostrating for 24 hours in that temple and when beheaded body and head of the deceased were found near that temple it also suggests the knowledge of the appellant to all such aspects. (ix) The appellant when questioned under section 313 of Cr.P.C., 1973 for drawing his attention to the incriminating circumstances brought on record admitted that he had killed that boy who was beheaded This admission also lends assurance to the circumstances brought on record. 9. (ix) The appellant when questioned under section 313 of Cr.P.C., 1973 for drawing his attention to the incriminating circumstances brought on record admitted that he had killed that boy who was beheaded This admission also lends assurance to the circumstances brought on record. 9. The admission/confession of the appellant that he had beheaded the deceased amounts to an confession and can be relied upon as held in the case of Maharashtra vs. Sandeep Singh, II (1992) CCR 195 (SC). It is held by the Apex Court that confession of an accused during course of his examination under section 313 of Cr.P.C , 1973can be utilized against him to hold him guilty. 10. We have considered all such circumstances as well as confession of the appellant and we are convinced that the circumstantial evidence brought on record is consistent with the guilt of the appellant and inconsistent with his innocence. All such circumstances are conclusive in nature. The Trial Court has discussed threadbare all such circumstances and observed the circumstances established was consistent only with the hypothesis of guilt of the appellant and we find no reason to disagree with such conclusion, particularly when the appellant at the fag end of the trial admitted his culpability and confessed his guilt to have committed that gruesome act by sacrificing a boy of tender age before the Deity with a lust in mind to get the blessing of deity. All such circumstances, which we have stated, lead to one and only conclusion that the appellant committed that gruesome murder. No other reasonable hypothesis was or could be suggested. 11. The appellant when made a human sacrifice by beheading an innocent child and offered him to the 'God' to fulfil his lust of getting blessings, his intent is manifest. The learned Trial Court considering all such legal and factual aspects has held him guilty under Section 302 of IPC among other sections. 12. In the result, we agree with the conclusion arrived at by the learned Trial Court both in regard to the conviction and sentence Accordingly, this Jail Criminal Appeal fails and is dismissed. 13. L.C R received be sent back forth with along with a copy of this Judgment.