IMPORTANT POINTS
1. Where eyewitness of crime was a servant of an accused and remained silent spectator to the crime and had no mens rea and did not participate in offence he could not be termed as accomplice.
2. Gruesome murder of a four, year child only to satisfy greed for a child and a gold pot at instance of a tantric and murder committed in a diabolical manner calls for extreme penalty of death against perpetrator of crime.

Headnote:(i) Indian Penal Code, 1860 - Sections 364, 302 and 201 Appellant convicted for offences - A child 4 years of age kidnapped, taken to the field of appellant No. 1 with a tantrik and murdered in order to get a son and golden pot for appellant No.1 - PW 14, servant of appellant No.1 examined as the eye witness and extra Judicial confession by one of the appellants who had come to a pond to dispose of body of the child and was captured by informant - PW 14, a servant, being a mute spectator only proceeded to scot and thus could not be treated as an accomplice since he had neither mens rea nor had participated in the crime – He volunteered to disclose the Commission of crime after some days and reason for delay was duly explained by him - He could not be termed as accomplice – No evidence to show that PW 14 was an interested witness - Evidence contradictions pointed out in his evidence found not material Conviction based on his evidence and other circumstances called for no interference. (Paras 10 to 15 and 23)
       (ii) Evidence Act, 1872 Section 133 - Accomplice - Expression not defined - It is presumed to have been used in its ordinary sense - When witness was the servant of an accused and was a mute spectator to the crime, he could not be treated as an accomplice since he had neither the mens rea nor had participated in crime. (Para 15)
       (iii) Criminal Procedure Code, 1973 - Section 164 - Evidence of witness whose statement was earlier recorded under Section 164 Cr.P.C. has to be appreciated with circumspection. (Para 20)
       (iv) Indian Penal Code, 1860Section 302 - Death penalty - A defence-less and innocent child of 4 years was killed in a gruesome manner to satisfy the greed of killers at the instance of a Tantrik to get a son and a golden pot Crime was brutal and diabolical which shock the collective conscience of community - Extreme penalty was necessary in such cases to protect the community and to deter others from committing such crime - One of the appellants delivered male child during trial custody - On comparing the mitigating with aggravated circumstances, the aggravated circumstances were so overwhelming that no sympathy could be shown to that appellant - All the appellants deserved extreme penalty and sentence called for no interference. (Paras 25 and 26)
       Result: Appeal dismissed. Death sentence confirmed.

JUDGMENT

B.P. Das, J. - Four condemned accused hereinafter referred to as 'the appellants') have preferred the present Criminal Appeal challenging the judgment passed by the learned Additional Sessions Judge. Malkangiri. in S.C. No. 71 to 1999 convicting them for committing a heinous and shocking cold-blooded murder of an innocent kid of four years' old after kidnapping him and screening the evidence of murder in furtherance of their common intention punishable under Sec. 364, 302 and 201 read with Section 34 of the Indian Penal Code (for short the I.P.C.) and sentencing them to capital punishment and referring the same to this Court for confirmation as required under Sec. 366 of the Code of Criminal Procedure (for short the Cr.P.C.). Thus the Criminal Appeal as well as the Death Reference having given rise to common questions of fact and law were heard analogously and are being disposed of by this common judgment.

2. Concisely put, case of the prosecution is that after Ranjeet Mohanty alias Rana (hereinafter referred to as 'the deceased') was found missing from the village street of Balimela on 30-4-1997 at about 10 A.M., his uncle, Chita Ranjan Mohanty (the informant), and others searched for him but in vain for which a missing report was lodged in Orkel Police Station on the following afternoon. In the early morning of 1-5-1997 while the informant was going towards the pond in the, backyard of his house to attend call of nature, he found a person coming towards the pond carrying something on his shoulder. When the said man came nearer, the informant identified him to be the appellant Narayan Mazumdar, who was throwing a dead body by the side of the pond. At that juncture, the informant caught hold of him and raised hallah, hearing which people from the neighbourhood gathered there and found that the dead body thrown by Narayan Mazumdar was that of the deceased, who was missing since one day. On being asked, the appellant-Narayan Mazumdar disclosed that he alone had not murdered the child, some others also were involved in the complicity of the felony and he was ready to disclose their names and identify them. Accordingly, the appellant-Narayan Mazumdar led the informant and others to the house of the appellant Kunja Ramana, who along with his servants seeing Narayan Mazumdar in the company of informant and others abused them and threatened them to assault holding axe and lathis. So, the informant and others returned to the village but they along with some more villagers again proceeded to the house of the appellant-Kunja Ramana. On their arrival at the house of Kunja Ramana, they found the nails and the hair clippings of the deceased there. The appellant-Narayan Mazumdar also disclosed that in the said place the nails, hairs and tongue of the deceased were cut and Simachal Padhi, a Tantrik, offered the prayer. It was also disclosed by him that after the puja, the deceased was taken in a jeep to the house of the appellant-Subash Panda where the appellants and Simachal Padhi killed him throttling his neck and catching hold of his hands and legs. He also revealed that Simachal Padhi, Kunja Ramana and Subash Panda promised him to pay Rs. 25,000/- for disposal of the dead body. After Narayan Mazumdar made the extra-judicial confession as above, to the villagers, the latter along with the appellant-Narayan Mazumdar went to Subash Panda's house where they found the other appellants and also the Tantrik-Simachal Padhi, who, on being asked, told that he sacrificed the deceased to whom he could give "Jeevan Daan" within three hours. Thereafter with the dead body of the deceased all of them came to the house of the informant where the Tantrik performed puja. But having failed to give "Jeevan Daan" to the deceased, he tried to flee away from the said house. At that juncture the informant and others caught hold of the Tantrik, who was then handed over to the police. Accordingly, an information under Ext. 1 was lodged in Orkel Police Sta

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Cases Referred (10)