SADANANDA BASISOI Vs. STATE

JUDGEMENT

(1.) THE Appellant has been convicted under Section 302 , Indian Penal Code and sentenced to death. The learned Sessions Judge has made a reference under Section 376, Code of Criminal Procedure for confirmation of the sentence of death.

(2.) THE prosecution case runs thus : Simachal Panda (p.w. 2) is the father of the deceased Sakuntala. p.w. 2 is married to the sister of Satyananda Khadanga. On 22 -2 -1968 the nuptial ceremony of the son of Satyananda was to take place in his house in the evening. The wife of p.w. 2 with some of his children including the deceased had come to the house of Satyananda 4 days before. Satyananda's backyard is just adjacent to the village road leading to Goutami. On either side of this road, there are houses of different castes. At about 7 P.M. on 20 -2 -1968 the deceased in the company of Swarnalate (p.w. 1), Pratima Rath, Debaraj Khadanga and Bijoy (younger brother of the deceased) were waiting for the arrival of the bride scheduled to come in a car. Prakash (p.w. 3), the younger brother of Sadananda (accused), came to the deceased and told her that her elder brother at Cuttack had sent a terylene frock through the accused and that the deceased would accompany him to take it from the accused. The deceased at first expressed reluctance and wanted her brother Bijoy to go and fetch the frock. p.w. 3 insisted that the accused wanted the deceased herself to come. The deceased Was about 11 to 12 years old and was married about 8 months back. She was bedecked with various gold ornaments weighing about 12 tolas. When the proceeded on the Goutami road towards Telenga Sahi in the company of p.w. 3, p.w. 1 and this companion Pratima Rath (not examined) wanted to go with the deceased. P.W. 3 pelted stones towards them to dissuade them from going, stating that the accused wanted the deceased alone. Accordingly p.w. 1 and Pratima Rath did not go with the deceased and p.w. 3. At about 7.30 P.M. Hanu Hisoi (p.w. 7) found the deceased in the company of the accused in the village Danda of Telenga Sahi near about the Goutami road and the cowshed of the accused. A little later Debahari Sahu (p.w. 10) found Dandasi Dora (not examined) pushing the outer Tati of the accused's cowshed, while the accused was pushing the very Tati from inside the cowshed. p.w. 10 heard the voice of the accused from inside the cowshed asking Dandasi to leave the place and telling him that he would follow him. p.w. 10 also heard the mother of the accused shouting on the Dando that the accused was assaulting his own wife inside the cowshed. p.w. 10 did not believe the statement of the mother and suspected that some other woman was in the cowshed in the company of the accused. After going some distance on the Goutami road, p.w. 10 met Bhima Swain (p.w. 12) and told him that the accused had confined a woman inside his cowshed. Both of them waited for some time when they met Jura Patra and Dukhishyam Sahu. Dukhishyam had a torch. After Borne time they noticed the accused coming out of the cowshed and sitting on the verandah of Dandasi Dora. After the accused came out of the cowshed, both of them went inside the cowshed of the accused. They flashed the torch, but did not find any human being. They left the place for this respective houses, and some time after they heard a great hulla from the side of the house of the accused. In the meantime the bride arrived in Satyananda's house. People took the feast as usual. Though the family members of p.w. 2 were residing in the house of Satyananda for the previous four days, p.w. 2 himself was remaining in his own house, At about 8 P.M. after the arrival of the bride when the feast took place, p.w. 2 made enquiries as to the whereabouts of the deceased. When he did not get any information, he went to the house of p.w. 1 and from her he learnt that the deceased had accompanied p.w. 3 to get a terylene frock from the accused. Accordingly p.ws. 2 and 7 and many other villagers went to the house of the accused to know the whereabouts of the deceased. Obviously there was fl. great commotion in the village. p.ws. 10 and 11 also arrived at the house of the accused. When the villagers gathered, the mother of the accused at first came out and said that the accused was suffering from fever. P.W. 3 was sent for. He divulged before the assemblage of people that on the direction of the accused he had brought the deceased at about 7 P.M. and left her in the company of the accused in the village Danda of Telenga Sahi touching the Goutami road. Thereafter the accused came trembling and confessed that he had killed the deceased out of greed to take her ornaments. The accused was asked to point out the dead body. He led the party through his cowshed to the empty kitchen room of Sukuru Reddy where the deceased was lying. Only 2 to 3 ornaments worn by the deceased had been taken away. The left ear -lobule was completely torn and a portion of the place was missing. The discovery of the death of the deceased was thus made, hardly within one hour of her disappearance. p.ws. 1, 2, 7, 10, 12 and Satyananda Khadanga are all residents of village Sidheswar. After the discovery of the dead body, two village watchmen of village Sidheswar came to the Sarpanch Jura Jena (p.w. 6) of village Sidhikhandi at a distance of about 4 furlongs from village Sidheswar. p.w. 6 immediately came to Sidheswar. In the meantime the accused had been detained by the villagers in the village Akhadaghar. On his arrival p.w. 6 found the accused in the village Akhadaghar. p.w. 3 told p.w. 6 that he took the deceased and left her in the company of the accused. The accused also made a confession before p.w. 6 as having killed the deceased for taking away the gold ornaments. p.w. 2 got the report (Ext. 1) written and gave it to p.w. 6, who in his turn wrote another report (Ext. 4) to the S.I. of Patapur Police Station. On the basis of these reports, the officer -in -charge drew up a formal F.I.R. (Ext. 10) and started investigation. The entire investigation was practically completed within a course of 12 to 14 hours. Only p.w. 7 had to be examined on 22 -2 -1968 as on 21 -2 -1968 he had gone away to Berhampur on his personal work.

(3.) THE next question for consideration is whether the Appellant killed the deceased. There is no eye -witnesses to the occurrence. Mr. Behura contends that the circumstantial evidence, relied upon by the learned Sessions Judge, does not establish beyond reasonable doubt that the accused committed the murder. The learned Standing Counsel, on the other hand, contends that the finding of the learned Sessions Judge rejecting the extra -judicial confession is wrong, and that not only the circumstantial evidence would justify the conviction but also the conviction can be further supported on the basis of the extra -judicial confession. Both the contentions require careful examination.