UPENDRA NAHAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) UPENDRA Nahak (hereinafter referred to as the 'accused') has been accused of killing his own two daughters to perfect the art of witchcraft. He stood charged under section 302 of the Indian Penal Code, 1860 (in short, the 'IPC') and faced trial along with one Sanyasi Patra@ Da (since acquitted), who stood charged under section 302 read with section 109, IPC, for having abetted former to commit the murder of the two girls named Kuni and Tuni in the night of 13/14.4.1986.

(2.) BRIEFLY stated the prosecution case is as follows: There is a Math named Kambhupani Math situated on the bank of river Rushikulya near Aska town. The said Math consists of two rooms one the ground floor and one room in the underground with a small outer courtyard enclosed by walls. There is a gate on the southern side compound wall to go to the courtyard and from that courtyard there is a small door -way to go to the eastern side room and from that eastern side room one can go to the western side room through a door -way without door leaves and from that western side room there is a very small passage to go to the underground room. This Math was an abandoned one and was occupied occasionally since four to five months prior to the alleged date of occurrence by accused Sanyasi Patra, who was working as a helper in the Mechanical Section of the ORT Company at Berhampur town. He was living with family in a street known as Gate Bazar. In that Math, he had kept several photographs including one big photo of Abhiram Paramahansa (M.O.I) and some other articles from which one would carry an impression that he had started living like a saint, although still serving as a helper as aforesaid. About four or five days prior to the occurrence, accused Upendra came to his contact and wanted to learn the art of witchcraft. Accused Sanyasi Patra consented to become his Guru and give out that unless he offered human blood to the deity, perfection cannot be achieved in witchcraft. When accused Upendra volunteered to offer his two daughters to the deity for the purpose, Sanyasi agreed. At the material time, Tuni, the younger daughter of the accused Upendra, aged about three years, was staying in the house of her maternal grandfather Ranka Mohanty (P.W. 7). Accused Upendra went to the village of his father -in -law on 13.4.1986 at about 7.30 p.m. and brought Tuni in a bus with the pretext that he was performing a puja in his village for Graha Shanti where her presence was essential. His elder daughter Kuni, aged about 7 years, who was sleeping on the outer verandah of their house, was stealthily brought to the Math, where both the girls were sacrificed by cutting their necks by means of one Kalika -Kati (M.O.II) and their blood was offered to Abhiram Param hansa by putting some blood on M.O.I. Thereafter accused Upendra was directed by Co -accused Sanyasi to carry the severed heads of the two girls in an air bag (M.O. III) to Tara Tarini temple saying that those would be offered as 'bhog' there and he himself promised to arrive at that temple in the following morning along with his family members. While accused Upendra was carrying the air -bag containing two severed heads he was apprehended at Kavisuryana gar by some persons, who were witnessing a drama that was being staged in connection with Meru Jatra falling on 14.4.1986. He was taken to Kavisuryanagar Police Out Post. The Sub -Inspector of Police (P.W. 17) who was attached to the Out Post held inquest over those severed heads in presence of witnesses as per Exts. 4 and 4/1 and examined accused Upendra as to how he come by those heads. Station diary entry dated 14.4.1986 was made and plain paper F.I.R. (Ext. 17/1) was drawn up which was forwarded to Aska Police Station. On the basis of such report, a case was registered and investigation was undertaken. After registration of the case, the Officer -in -charge of Aska Police Station (P.W. 16) directed his Sub -Inspector (P.W. 9) to proceed to the Math and hold inquest over the dead bodies and sent message to the Scientific Officer, Chatrapur to send his team for assistance in the investigation. He himself left for Berhampur, where he arrested co -accused Sanyasi Patra in his house. Sanyasi's wearing apparels (M.Os. VII, VIII and IX) were seized as per seizure list dt. 18. On his return from Berhampur, he despatched both the dead bodies with heads to Berhampur Medical College Hospital for postmortem examination, as per command certificate (Ext. 2) and the dead body challans (Exts. 2/1 and 2/2). As per the direction of P.W. 16, the Sub -Inspector (P.W. 9) went to the Math and found that there was already a crowd, which was gradually swelling and with the help of a key produced by some one from the mob, the door of the eastern side room was opened and it was found that the dead bodies of the two girls without their heads were lying in the western room and inquest over those dead bodies was held in presence of witnesses. In the afternoon P.W. 17 arrived at the Math with the bag (M.O.III) containing severed heads of two girls. In the mean while, the team of Scientific Officer consisting of the Scientific Officer himself (P.W. 10), the Sub -Inspector of Finger Prints and the Assistant Sub -Inspector of Photographs arrived at the Math, found that there were several articles inside the Math which were stained with blood. Photographs of M.O.I and M.O.I. and of the dead bodies of the two girls without their heads were taken. The severed heads brought by P.W. 17 were joined with the trunks of the two girls in their necks and photographs were taken. Photographs of different finger prints appearing on different articles including M.O.I. were also taken, and for the purpose of comparison the specimen finger prints of both the accused were taken. Ext. 35 is the sheet containing all the finger prints of accused Upendra. The Circle Inspector of Police, Aska (P.W. 18) took charge of the investigation of the case on the same day and prepared the spot map and its index. From the western side room of the Math he seized the Kalika -kati (M.O. II) stained with blood from beneath a wooden box as per Ext. 21 in presence of witnesses and also several other articles including those stained with blood as per Ext. 22. From the underground room he seized one blood stained shirt (M.O. IV), one blood soaked dhoti (M.O. XI) and one blood soaked underwear with stripes (M.O. XII). One dibri made of glass (M.O. XIII), some blood soaked earth and some sample earth as per Ext. 19/1 were seized. After the postmortem was over, the reports were submitted. The blood stained articles, the nail clippings of accused Upendra and the air -bag (M.O. III) were sent for chemical examination to the Director of Forensic Science Laboratory, Regulgarh. The Chemical Examiner's report and the report of the Serologist read together indicate that the towel of the accused Upendra seized from his possession at Kavisuryanagar and the air -bag recovered from his contained human blood, and so also the floor scrappings, extracts from the photo of Abhiram Paramahansa. extracts from the alleged weapon of offence, namely, Kalika -Kati, the banian and a plastic cloth all recovered from the western side room, one old white dhoti (M.O. XI), the shirt (M.O. IV), one underwear (M.O. XII) and some floor scrappings, all recovered from the underground room, and the wearing apparels of the two deceased. According to the Chemical Examiner, he found blood in the Kalika -kati, but the same was insufficient for serological examination. According to the report of the Director of State Finger Prints Bureau, the latent finger prints detected on the glass of the photos M.O. XIV and XV tallied with the specimen right thumb print of accused Upendra.

(3.) TWENTY witnesses were examined to further the prosecution case. The learned Sessions Judge found that the prosecution case rested on circumstantial evidence. So far as accused Sanyasi is concerned, the learned Sessions Judge found that the two circumstances indicated against him were not sufficient to establish the charge. He, therefore, directed his acquittal. So far as accused Upendra is concerned, seven circumstances were relied upon by the prosecution. They are as follows: