STATE OF ORISSA Vs. MADHU SWAIN

JUDGEMENT

(1.) WHEN this Government Appeal is taken up for hearing, Mr. A.K. Misnra, Learned Standing Counsel files a memo along with the Death Certificates and submits that accused -Respondent No. 7 Narendra @ -Babula Swain died on 18.05.2006 and accused -Respondent No. 8 Sadhu Swain died on 26.03.2004. Learned Counsel for the Respondents does not dispute to that factual submission. Under such circumstance, the Govt. Appeal abates against the aforesaid two deceased accused - Respondents.

(2.) HEARD argument from the parties. Hearing is concluded and the Judgment is as follows.

(3.) IT reveals from the lower Court's record that Nilamani Jena (hereinafter referred to as deceased') suffered homicidal death on 03.04.1999. According to the case of the prosecution, on that date deceased left the house with a view to go to Kenduapara High School to ascertain the centre of examination for Matriculation, in which he proposed to appear, and did not return to home. Raghunath Jena (P.W.1) is the father of the deceased and Indramani Jena (P.W.6) is the elder brother of the deceased. Both of them showed concern for missing of the deceased and ultimately gathered information that the accused persons had chased the deceased from the tea stall of Ranjan Das (P.W.2) at Kenduapara.They submitted a report accordingly to the Rural Police, Bhadrak, searched for the deceased and ultimately discovered his dead body minus the head lying on the land of one Jagabandhu Pradhan in village Adeipali under Bhadrak Police Station. After discovery of the headless dead body of the deceased, P.W. 1 identified the same to be of the deceased and at that spot lodged the F.I.R., Ext.1. On a further search the severed head of the deceased was located about half a kilometer away in another mouza. Inquest was held both of the body and the head respectively under Inquest Report, Exts.2 and 3, and were dispatched for post -mortem examination. P.W.9 is the doctor who conducted autopsy besides matching of the head and the body and reported under Post -mortem Report, Ext.4 that the deceased suffered homicidal death and the head had been chopped off from the body by a sharp cutting weapon In course of the investigation it could be ascertained that the accused persons, who had a grudge against P.W.1 and his family, had secured custody of the deceased at Kapali Road Railway Station and they took him towards Kenduapara. At the second spot, i.e., where the head of the deceased was found, the Investigating Officer also found a 'sika', rope and a stick (lathi) with blood -stain lying there and such incriminating articles together with the blood -stained earth were collected from both the spots. In course of the investigation, such articles were also forwarded to the State Forensic Science and Laboratory, Bhubaneswar to ascertain if that contains human blood and the group thereof. In that respect, the report of the S.F.S.L. indicating that human blood group 'B' was found on the 'sika', lathi and the blood -stained earth, which were relied on as Exts.8 series. Since there was no eye -witness to the occurrence of murder, prosecution banked upon the circumstantial evidence of the conduct of the accused persons in chasing the deceased at about noon time and thereafter dragging him in the evening at about 7.30 to 8 p.m. and discovery of the dead body on the following day as the circumstantial evidence to prove the charge against the accused persons. To substantiate such charges, prosecution tendered evidence of ten witnesses and relied on documents marked Exts.1 to 8. Prosecution relied on the evidence of P.Ws. 2, 3,4 and 5 besides P.Ws. 7 and 8 and proved the conduct of the accused persons and the last seen theory and the evidence of P.Ws. 1 and 2 about the enmity and the discovery of the dead body, inquest and seizure of incriminating materials.The stick (lathi), rope and 'sika' were respectively exhibited as M.Os. I, II and III.