Minja @ Rohit Pradhan vs State Of Odisha on 24 December, 2021

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Orissa High Court

Minja @ Rohit Pradhan vs State Of Odisha on 24 December, 2021

1. The Appellant is convicted for offences under Sections 364, 302, 201 and 379 of the Indian Penal Code (IPC) by the learned Additional Sessions Judge, Bhubaneswar in Criminal Trial No.79 of 2011 and sentenced to undergo imprisonment for life along-with imprisonment for different terms in connection with Balipatna P.S. Case No.93 dated 10th July, 2010 corresponding to G.R. Case No.587 of 2010.

2. The Appellant along with five others were prosecuted for commission of offences under Sections 364/302/379/411/34 read with CRLA No.127 of 2020 Page 1 of 19 Section 120-B of the I.P.C. Except the Appellant, other four co- accused persons were acquitted from the charges.

3. The deceased namely Tutu @ Prasant Pradhan and the Appellant were working at Kerala. They were involved in labour contract deals to arrange labourers to work at Kerala. The Appellant was working as the Manager along with P.W.19 under the deceased. He had earlier requested the deceased to make him a partner. But the deceased did not heed to the same. The deceased belong to the village Kanapur under Nimapara P.S. and the Appellant belong to the village Sagada-Deuli under the same P.S.

4. On 6th July, 2010 in the morning when the deceased present in his house and taking food, received a phone call from the Appellant. After taking his food when he came out from his house, his parent viz. P.W.11 and 15 asked him where he was going. The deceased replied that the Appellant (Minza @Rohit Pradhan), who is distantly related to him also, called him over phone and as such he is going with him. The deceased went with the Appellant in a bajaj scooter. The deceased was seen sitting in the rear seat of the scooter driven by the Appellant by different witnesses viz., P.Ws.4, 5, 6, 7 & 8. They went towards village Bhairipur. They took liquor with them and the Appellant had kept a Katuri (the weapon of offence - M.O.-IX) with him. Before reaching the village Bhairpur, the scooter stopped due to mechanical failure. Keeping the scooter there, they went walking to the farm house of the sister of the Appellant, namely, Manorama (one of the co-accused), situated in a lonely place at some distance. The said farm house is the CRLA No.127 of 2020 Page 2 of 19 spot of occurrence. One small room of asbestos roof with verandah was there. Nearby to it, a small pond and a coconut tree also were there in the premises of the said farm house. Both the Appellant and deceased drank liquor in the verandah of the asbestos room. After some time, the Appellant told the deceased to pluck green coconut from the tree standing on the bank of the pond. Reaching near the coconut tree, the Appellant instructed the deceased to climb the tree and pluck coconut. The deceased refused to climb the tree and sat under the tree. Then some hot altercation of words were exchanged between them as the deceased undermined the Appellant telling him as the Manager under him when he himself is the labour contractor. This infuriated the Appellant, who by replying that the deceased though had earlier promised to take him as a partner, but took another person from Jajpur as his partner in the labour contract business, and then dealt blows on the head of the deceased by means of the Katuri he was holding. The deceased died there instantly. The Appellant then washed the Katuri as well as the place under the coconut tree where the deceased sat bringing water from the tube-well situating in the same premises. Then he concealed the Katuri (MO-IX) in the heap of firewood kept on the verandah of asbestos room and leaving the dead body there returned back to the house of his sister at village Bhairipur, and again went inside the village. He called two of his friends from the village, went near the scooter, took the same to nearby garage, repaired it and then left. On the next day, the Appellant brought petrol from P.W.17 (turned hostile) and again came to the spot. He undressed the deceased, took off his gold finger ring, gold chain, mobile phone and wrist watch, and kept the wearing pant, shirt near his face, poured petrol and kindled fire CRLA No.127 of 2020 Page 3 of 19 so that his face could not be recognized. Then he put two sacks, one from the head side and the other from foot side to cover the body entirely, tied it and threw into the pond. Thereafter he cleaned himself at the tube-well and went to the house of his sister. He gave the gold chain to his sister saying that he has brought it from Kerala and then went to the village market (Khelar chhak) where he gave the mobile phone of the deceased to the other co-accused, Sadasib Pradhan and brought Rs.3,000/- from him and kept the wrist watch and gold finger ring with him. He threw the wrist watch into the pond at village Sagada-Deuli and concealed the finger ring inside the soil under an Arakha tree near the village Ratilo.

On the other hand, as the deceased did not return to house, his parents searched for him on the next day. P.W.11, father of the deceased came to know from the witnesses that the deceased was seen going with the Appellant in the scooter. P.W.11 lodged a man missing report in Nimapara P.S. regarding his missing son (the deceased) which was registered as Man Missing Report No.6 dated 9th July, 2010. P.W.11 and other witnesses were searching for the Appellant right from the next day of missing of the deceased, but could not found him. On 9th July, 2010, P.W.11 and P.Ws.4 to 8 met the Appellant on the way and when they asked the whereabouts of the deceased to him, the Appellant replied to them that he after killing the deceased in the farm house of his sister had thrown the dead body into the pond wrapping in two basta (sacks). The witnesses then went to the spot i.e. the farm house and found the dead body of the deceased inside the pond which was partially decomposed. Then P.W.11 went to Balipatna P.S. as the CRLA No.127 of 2020 Page 4 of 19 spot farm house was coming under the jurisdiction of the said P.S. and lodged the FIR under Ext.4.

5. The IIC of Balipatna P.S. registered the FIR and directed P.W.20, the then Sub-Inspector to investigate. Accordingly P.W.20 took up investigation, held inquest and requisitioned for the scientific team. P.W.21, the scientific officer visited the spot on the same day, prepared a spot visit report under Ext.19 and collected sample earth, blood stained earth and two bamboo leaves stained with blood with some pieces of hair.

6. P.W.20 also prepared a spot map under Ext.18. He examined the witnesses and arrested the Appellant on 15th July, 2010. The Appellant while in police custody confessed his guilt and also confessed to have kept the gold finger ring under the Arakha tree as well as giving of gold chain to his sister and mobile phone to Sadasib. The Appellant lead P.W.20 and other witnesses viz. P.W.16 and another to the place of concealment of the gold ring and gave recovery of the same. He also gave recovery of the gold chain and mobile phone from co-accused Manorama and Sadasib. All those articles were seized by P.W.20 under different seizure lists. P.W.20 continued investigation till 23rd August, 2010 and upon his transfer handed over the investigation to the IIC. From the IIC, P.W.18, another Sub-Inspector of Police took charge of investigation on 10th September, 2010 who continued investigation till 11th November, 2010 when he submitted the charge-sheet against all the accused persons for the offences aforestated.

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7. The Appellant did not plead guilty and claimed false implication.

8. Prosecution examined 22 witnesses and exhibited 31 documents in support of their case. The trial ended in conviction of the Appellant as stated earlier.

9. As the principal offence is under Section 302, I.P.C., it is relevant to mention here that the homicidal nature of death of the deceased is not disputed by the Appellant. Otherwise also as seen from the evidence of P.W.1, Dr. Sujata Mishra, who conducted the post mortem examination over the dead body on 10th July, 2010 at 11.45 a.m., the deceased sustained obliquely placed linear cut wound on the left parietal region of the scalp measuring 5 c.m. x 1 cm. The margins were clean cut. Another clean cut fracture was there on the left occipital mastoid area of length 5 cm associated with fissure fracture. One more cut wound was there extending from the bridge of the nose along the left maxilla upto left mandible associated with mandible fracture. There were two more injuries noticed on the back of the neck and on the left deltoid area. So keeping in view nature of those injuries, no more doubt remains about homicidal death of the deceased as has been rightly concluded by the learned trial court.

10. Admittedly no direct eye-witness is there. Prosecution depends on circumstantial evidence to bring home the charge against the Appellant. The principles relating to circumstantial evidence have been reiterated by the Supreme Court of India time to time in catena of CRLA No.127 of 2020 Page 6 of 19 decisions. In the case of Hanuman Govind, Nargundkar and another vs. State of Madhya Pradesh, AIR 1952 SC 343, the Supreme Court have propounded that;

"In cases where the evidence of a circumstantial nature, the circumstances which lead to the conclusion of guilt should be in the first instance fully established, and all the facts so established should be consistent only with the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words there must be a chain of evidence so complete as not to leave any reasonable doubt for a conclusion consistent with the innocence of the accused and it must be shown that within all human probability the act must have been committed by the accused."

11. The law on circumstantial evidence speaks that there must be a complete chain of evidence leading to conclusion that the accused is the only person who could have committed the offence and none else. To decide sufficiency of circumstantial evidence, the Court has to consider the total cumulative effect of all the proved facts, each of one which reinforces the conclusion of the guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused for determination of the issue even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of guilt of the accused and should exclude every hypothesis except one sought to be proved. There must be a chain of evidence so complete as CRLA No.127 of 2020 Page 7 of 19 not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (G. Parashwanath vs. State of Karnataka, AIR 2010 SC 2914).

12. The "Panchsheel" proof of a case based on circumstantial evidence, which is usually called five golden principles, have been stated by the apex Court in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622. They read as follows :- (Para 152) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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Law is further settled that every evidential circumstance is a probative link, strong or weak and must be made with certainty. Link after link tagged firmly by credible testimony may form a chain of sure guilty of the accused.

13. The circumstances stated as proved against the Appellant are that, first, he was seen last with the deceased shortly before the death of the deceased, secondly, he made extra judicial confession before the witnesses to have killed the deceased, thirdly, he gave recovery of the weapon of offence (MO-IX) as well as gold ring, gold chain and mobile phone of the deceased while in police custody, fourthly, he had a motive to kill the deceased, and fifthly, the dead body was recovered from the farm house of the sister of the Appellant i.e. the spot of occurrence.

14. Coming to examine the first circumstance, i.e. regarding last seen theory, it is important to see the evidence of P.Ws.4 to 8. They are the witnesses who have seen the deceased and the Appellant together. All those witnesses have stated that they saw the deceased going in the scooter of the Appellant sitting in the rear seat on 6th July, 2010 around 10.00 a.m. This is exactly the same time that P.W.11 has deposed in his evidence. P.W.11 has said the deceased came out of the house at about 10.15 a.m. As per the post mortem report which was conducted on 11th July, 2010 at 11.45 a.m., the time of death was prior to 5 to 9 days. This means, the probable time of death is between 11.45 a.m. on 6th July to 2nd July 2010. So the statement of P.Ws.4 to 8 that they saw the deceased and the Appellant together around 10.00 a.m. on 6 th July, CRLA No.127 of 2020 Page 9 of 19 2010 matches with the time stated by P.W.11 as well as by the post mortem doctor. It is argued here by the Appellant that the dead body of the deceased was recovered on 9th July, 2010 and as such there is no close proximity between the time last seen and finding of the dead body. But the learned counsel for the Appellant is not found right in his submission to compare the time gap from the time of last seen and the time his dead body was found. The proximity of time relevant to be calculated is between the point of time of last seen alive and the time of death. The time of discovery of the dead body is not always relevant to count the proximity. Because the time when the deceased died is always considered relevant to throw light on probable assailant and the nature of assault. In the present case if the time of death is taken at 11.45 a.m. on 6th July, 2010 and the point of time he was seen alive with the Appellant is around 10.00 a.m., then the time gap is so small that rules out all other possibilities of interference by any other person than the Appellant responsible for death of the deceased. Thus the last seen rule of evidence elicited through the witnesses being so consistent is established on record to point the finger only against the Appellant. This is a strong circumstance against him.

15. It is true that extra judicial confession is a weak piece of evidence and has to be appreciated with great deal of care and caution. The Supreme Court while explaining the dimensions of principles governing admissibility and evidentiary value of extra judicial confession, has stated in the case of State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 that, an extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court.

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The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The Supreme Court has further explained that such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of the witness who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.

16. When confession is found ordinarily admissible in evidence as a relevant fact, the taste is in regard to voluntariness and truthfulness of such confession as well as corroboration from other parts of evidence. The Supreme Court in the case of Sahadevan and another vs. State of Tamil Nadu, (2012) 6 SCC 403 have outlined the principles that;

"(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any CRLA No.127 of 2020 Page 11 of 19 material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

17. In the instant case as per prosecution, the Appellant has confessed before P.W.11, P.Ws.4, 5, 7 & 8 that he killed the deceased and threw his dead body inside the pond that belongs to his sister at village Bhairipur. This part of the evidence is found consistent in the statement of all such witnesses. P.W.11, the father of the deceased, has stated in his evidence that on 9th July, 2010 when he met the Appellant on the way while searching for the deceased and asked him about the deceased, the Appellant replied that he took the deceased in the scooter to Khelar market and thereafter to the farm house of his sister i.e. the spot. Thereafter he killed the deceased by means of Katuri (M.O.-IX) and threw it in the pond putting in jari bags. Hearing this from the Appellant when P.W.11 and other witnesses went to the farm house of the sister of the Appellant at village Bharipur, they found the decomposed dead body of the deceased inside the pond kept in bags. It is the consistent case of the prosecution that until then the whereabouts of the deceased was not known to anybody and upon such confession with disclosure made by the Appellant, the dead body of the deceased was found at the stated location. It is true that P.W.11 is a close relative of the deceased, but the other witnesses, viz., P.Ws.4, 5, 7 & 8 are not. Perusal of the evidence of P.Ws.4, 5 & 7 coupled with the statement of the P.W.11 inspires confidence about truthfulness of their version. The conduct of the witnesses on the background of missing of the deceased CRLA No.127 of 2020 Page 12 of 19 for last three days shows their natural eagerness to ask about the deceased to Appellant. Because he was the person with whom the deceased was last seen. Such confession of the Appellant before those witnesses appears to be voluntary and natural because he has to explain about the deceased. The inquisitiveness of the witnesses to ask whereabouts of the deceased is also natural in the given circumstances of the case. The reply so made by the Appellant which later was found true on verification suggests that the confession and disclosure of information about the deceased as voluntary and truthful. From the statements of those witnesses nothing adverse is found to disbelieve them.

18. Here it is submitted by the Appellant that there is contradiction in the statement of those witnesses as to when the Appellant made such confession, whether on 8th July or 9th July, 2010. But on perusal of their evidence, viz., P.Ws.4, 5, 7 & 11, it is clear that they met the Appellant on 9th July, 2010 and he stated as such before them on 9 th July, 2010. There is some discrepancy in the statement of P.W.11 with regard to the date. But the same is not found to be a material discrepancy upon perusal of his entire statement. Here it is important to mention that P.W.11, the father of the deceased, lodged a missing report in Nimapara P.S. which was registered as Missing Report No.6, dated 9th July, 2010. In this context, no ambiguity remains in the evidence of those witnesses that the Appellant confessed so before the witnesses on 9th July, 2010; where-after the witnesses found the decomposed dead body of the deceased in pursuance to the information given by the Appellant. The narration of facts of those witnesses is thus clear CRLA No.127 of 2020 Page 13 of 19 without leaving any ambiguity or doubt in the voluntariness and truthfulness of the confession made by the Appellant. However, this is a weak piece of evidence against the Appellant as extra judicial confession stated earlier.

19. Prosecution states that the Appellant while in police custody gave information leading to discovery of the gold ring, gold chain and mobile phone of the deceased as well as the weapon of offence under M.O.IX. Here it is submitted on behalf of the Appellant that the seized mobile is not established to be of the deceased nor M.O.IX has any established link to the alleged commission of offence. It is further stated that out of two independent witnesses before whom, besides the Police, the Appellant has allegedly gave the disclosure information, one has not been examined by prosecution and the evidence of the other one, viz, P.W.16 is untrustworthy.

20. It is relevant here to look into the evidence of the identifying witness first. As per prosecution story, the Test Identification Parade (TI Parade) in respect of the gold ring and the gold chain was conducted before the magistrate and the same was correctly identified by P.W.11, the identifying witness. Such identification of gold ring and gold chain has been flawlessly stated by P.W.11 in his evidence. The defense did not choose to challenge his statement in this regard during cross-examination. It is further seen that the identification of those gold ornaments of the deceased by P.W.11 in the TI parade has been supported in the evidence of P.W.22, the Judicial Magistrate and P.W.15, the Investigating Officer. As per the testimony of P.W.15, the CRLA No.127 of 2020 Page 14 of 19 gold ring which was recovered at the instance of the Appellant and identified by P.W.11 was engrossed with „TUTU‟ i.e. the name of the deceased. The chain was recovered from possession of Manorama, the sister of the Appellant and the ring was discovered from under the Arakha tree as per the information given by the Appellant while in Police custody. P.W.16, the independent witness has stated about the disclosure information given by the Appellant in Police custody how he disposed of the belongings of the deceased including the Katuri, the weapon of offence. Said P.W.16 is a witness to the seizure of those seized articles. P.W.20 is the concerned Investigating Officer before whom the Appellant had given the disclosure information. This P.W.20 has elaborately said how the Appellant led him and other witnesses to give discovery of the gold chain, gold ring and the mobile phone. No discrepancy or ambiguity is noticed in the said evidence of P.W.20. In addition to the same, it is further seen from the evidence of P.W.16 as well as P.W.20 that the Appellant had given discovery of the Katuri (M.O.-IX) from the heap of firewood kept in the verandah of the house situated at the spot. M.O.-IX is a weapon having wooden handle of length 5 inches with iron portion of 11 inches. The law with regard to discovery in consequence of the information received from the accused as relevant under Section 27 of the Indian Evidence Act has been settled in catena of decisions. In the case of Pulukuri Kotayya vs. King-Emperor, AIR 1947 PC 67 which is now become a locus classicus, the Privy Council has approved and settled the principles that the discovery of fact referred to in Section 27 of the Evidence Act is not an object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused has to it, has CRLA No.127 of 2020 Page 15 of 19 been reiterated and confirmed in subsequent decisions of the apex Court. It is true that M.O.-IX, the Katuri was found without any stain of blood upon the chemical examination, but the same does not itself wash away its‟ relevance keeping in view the nature of injuries sustained by the deceased and the kind of weapon M.O.IX is. Nonetheless hardly any doubt remains there about the information within the special knowledge of the Appellant regarding the gold ring and the gold chain, which have been correctly identified by P.W.11 without any flaw as the belongings of the deceased. The Appellant has no explanation to offer in this regard. Therefore, the contention of the Appellant to discard the evidence on this aspect is found without merit. Accordingly, the finding of the learned trial court that this is a strong circumstance against the Appellant pointing towards his guilt is confirmed.

21. On scrutiny of the materials brought on record, nothing is found adduced to prove the motive against the Appellant by any of the prosecution witnesses. Neither P.W.11 nor P.W.15 nor any other independent witnesses have stated so in their evidence. However, P.W.20, the Investigating Officer, while speaking about the disclosure statement of the Appellant has hinted at the same, which is not sufficient. So this piece of evidence being found without sufficient material cannot be used against the Appellant as a circumstance.

22. It is true that the spot wherefrom the dead body was recovered is belonging to the sister of the Appellant and her husband. As revealed from the evidence of different witnesses, the acquaintance of the CRLA No.127 of 2020 Page 16 of 19 Appellant to that spot is not rebutted in cross-examination. The location of the deceased while seen alive with the Appellant on the date of occurrence is within close proximity to that spot. On scientific examination of the spot as stated by P.W.21, the Scientific Officer, the coconut tree was having a cut mark at a height of 2 ft. from the ground. This supports the prosecution story that the Appellant dealt blow by means of M.O.-IX while the deceased was sitting under that tree. Therefore the spot of commission of offence which otherwise seems to be an easy accessible place for the Appellant and a lonely place, shown in the spot maps under Exts.14, 18 & 19 and so stated by both the Investigating Officers can be used as a link in the chain of circumstances against the Appellant.

23. One more fact is noticed that P.W.8, who is one of the witnesses seen the deceased with the Appellant in the scooter has stated in his cross-examination that the registration number of the said scooter is 1176. This is the same scooter that was seized by the Police from the house of the Appellant which belonged to the maternal uncle of the Appellant. This fact is not rebutted in evidence. The seizure witnesses have supported the same. This can be an additional link in the chain of circumstances.

24. It is further submitted on behalf of the Appellant that there is delay in lodging the FIR. Learned counsel for the Appellant strenuously submitted that when the deceased was found missing on 6 th July, 2010, the FIR was lodged on 10th July, 2010 despite prosecution story to the effect that the dead body of the deceased was found on 9 th CRLA No.127 of 2020 Page 17 of 19 July, 2010 and therefore, the prosecution having not explained the inordinate delay in lodging the FIR, concoction in the FIR story is a possibility.

25. Perusal of the FIR revels that the witnesses were searching for the deceased after he went missing from 6th July, 2010 and missing report was lodged in Nimapara P.S. It is the admitted case of prosecution that the witnesses came to know from the Appellant about death of the deceased on 9th July, 2010 and consequent thereof they also found the decomposed dead body on the same day at the spot. The FIR was lodged at 9.30 a.m. on 10th July, 2010. The informant, who is the father of the deceased, is a rustic village old man aged about 60 years. They had no other close relative except the deceased. The recitals of the FIR are found corroborative to the prosecution story and no material discrepancy or contradiction is noticed from the same. Therefore, considering the socio-economic background of the informant, nothing unusual is seen to doubt the prosecution case for lodging the FIR on the next morning. It is not a case where there is inordinate delay in lodging the FIR as contended by the Appellant. At best the FIR could have been lodged on 9th July, 2010 whereas it was lodged on the next morning on 10th July, 2010 at 9.30 a.m. So keeping other angles of prosecution case in view where the recitals of the FIR is found corroborated on material aspects, no benefit can be extended in favour of the Appellant for this small delay in lodging the FIR. Accordingly all such contentions raised on behalf of the Appellant are rejected.

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26. In view of the discussions made above, all such circumstances proved against the Appellant are forming the chain complete unerringly pointing the guilt against him excluding all hypothesis of innocence in his favour. As said in the case of Munish Mubar vs. State of Haryana, (2012) 10 SCC 464, the circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused. Accordingly, upon examination of the entire evidence in its entirety, the circumstances discussed above are undoubtedly giving the only inference of guilt of the Appellant.

27. In the result the appeal is dismissed being without merit.

(B.P. Routray) Judge (Dr. S. Muralidhar) Chief Justice B.K. Barik/PA CRLA No.127 of 2020 Page 19 of 19

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