UPENDRA KANHAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) ORDER of conviction under Section 302, I.P.C. and sentence of imprisonment for life pronounced by learned Second Addl. Sessions Judge, Cuttack as against the appellant in Sessions Trial No. 15 of 1995 (Sessions Trial No. 126 of 1995 of the Court of Sessions Judge, Cuttack) is under challenge.

(2.) ACCORDING to the case of the prosecution, accused -appellant Upendra Kanhar was serving as a boy in a confectionery shop in the name and style 'Cuttack Sweets Stall' situated at College Square, Cuttack. In the occurrence night, i.e., in the night of 04.10.1994 after the shop was closed at about 10 to 11 p.m. other boys retired to their retiring room on the rear side of the confectionery shop, but accused remained engaged in sweeping the canteen room where the deceased being the Manager took rest as usual. Around 4.30 to 5 a.m. of 05.10.1994 near Badambadi Bus -stand area Police Havildar (P.W. 6) found the accused moving carrying two bags. Out of suspicion he put a few questions and accused gave prevaricating statement. Thus, P.W. 6 searched the bags carried by the accused and found much quantity of coins in 17 nos. of polythene bags. He also noticed blood -stain on the left leg of the accused. Then he took him to the nearest police station and produced him before the A.S.I, of Police (P.W. 7). After ascertaining his whereabouts he was forwarded to Malgodown Police Station and then he was brought to the place of occurrence. By then the crime had been discovered and the police of Malgodown P.S. informed to take up investigation and the Investigating Officer (P.W. 8) so also the scientific officer (P.W. 3) were busy in investigation when the accused was brought to that place. During the spot visit, Investigating Officer found the dead body of the deceased lying in a pool of blood with multiple injuries so also the blood -stain in the iron pounder (pestle) and a knife lying at the basin. Investigating Officer also found that the cash drawer had been tampered with and cash (sale proceeds) removed and the keys of different locks used on gates and the drawer were missing. After arrival of the accused, on interrogation in presence of the witnesses he gave discovery of a 'Chadar' which was stained with blood, and accused stated that at the time of committing the crime he was wearing the same. He also took the police and the witnesses to a 'Taja' (parapet) of the cycle -stand adjoining to the nearby branch of State Bank of India and the missing keys were discovered at the instance of the accused. All such articles together with the blood -stained knife and the pounder were seized under different seizure lists (details thereof has been indicated in the impugned judgment). The dead body was sent for post -mortem examination and after completion of investigation, charge -sheet was submitted against the accused. In course of the trial, accused denied to the charge and claimed for trial. He took the plea of denial besides the plea of alibi by stating that a day previous to the occurrence he had left the confectionery after obtaining leave from the master. He also stated that he had received his wages on 04.10.1994.

(3.) LEARNED Counsel for the appellant argues that the circumstantial evidence accepted by the trial Court are not sufficient to complete the chain of circumstance in furtherance of the allegations made against the accused and, therefore, he is entitled to the benefit of doubt, if not a clean -cut acquittal. In the context of the manner in which the circumstantial evidence should be evaluated, he places reliance on the cases of Samir Chakarabarty alias Kasinath Bagchi v. State of Orissa (2003) 24 OCR - 844; Jaharlal Das v. State of Orissa 72 (1991) C.L.T. 289 (S.C.); Dhenka Munda v. State 71 (1991) C.L.T. 589; Dharani Pradhan v. State, 84 (1997) C.L.T. 736 and Arjun Marik and Ors. v. State of Bihar 1994 (1) SCALE, 821. Learned Addl. Govt. Advocate on the other hand supports the impugned judgment and the order of conviction and states that minor contradictions in the matter of recovery of the 'Chadar' (M.O.I. Ill) should not have been disbelieved by the trial Court and if that part of the evidence is accepted, then the rest of the evidence on record completes the chain of circumstances.