STATE OF ORISSA Vs. KHAGESWAR ALIAS SANTOSH BEHERA

JUDGEMENT

(1.) The above noted Death Reference and Jail Criminal Appeal arise out of the judgment dated 1-2-2005 passed by learned Sessions Judge, Keonjhar in S.T. Case No. 4 of 2003 and so both are disposed of by this common order.

(2.) Prosecution was launched against the accused-appellant with the allegation that in spite of having a wife named Kuni Behera and three children, the accused had an evil eye on the wife of Puria Perei and for that reason he was neglecting his wife and children and so Kuni and her children were living in the house of the parents of Kuni Behera for some time. When the matter stood thus, the accused came to the house of his in-laws on 13-6-2002 on the pretext of taking back his wife and children. But early in the next morning, he left that place without taking his family. So, the brother of Kuni took Kuni and her children to Pani Koil Chhak and left them in the custody of the accused. Thereafter on 17-6-2002 the dead body of Kuni was found in a Nala near Suanpoda weekly market. On the next day i.e. on 18-6-2002 the dead bodies of two of the children were found from a deserted well and the dead body of the 3rd child was found from a Nala. The recovery of dead bodies was reported to the police authorities, who investigated into the matter and found out that the accused killed his wife and children in order to continue his extra marital relation with another lady. The accused was accordingly charge-sheeted for offence under Sections 302 and 201, I.P.C. He was tried and found guilty for those offences by learned Sessions Judge, Keonjhar in the above noted sessions case. Learned Sessions Judge after imposing death penalty, referred the matter to this Court for confirmation of the death sentence vide DSREF No. 2 of 2005. The accused also filed the jail Criminal Appeal No. 21 of 2005 challenging the conviction and sentence passed against him.

(3.) Learned counsel for the accused-appellant submitted that the prosecution evidence is highly insufficient to establish the charges levelled against the accused beyond reasonable doubt and therefore, the conviction and sentence are unsustainable. He also submitted that the charge framed against the accused is defective and has resulted in utter prejudice to the accused-appellant. Learned Standing Counsel, on the other hand, supported the impugned judgment of the trial Court and argued that though there is no eye-witness to the alleged occurrence, yet circumstantial evidence coupled with the last seen theory put forth by the prosecution are sufficient to establish the charges under Sections 302 and 201, IPC. He also submitted that the defect in the charge as alleged, is at best an irregularity and has not caused any prejudice to the accused-appellant, as the entire facts, circumstances and evidence were placed before him at the time of recording the accused statement.