[Cites 22, Cited by 0]
Orissa High Court
Laxmidhar Swain vs State Of Odisha .... Opp. Party on 23 December, 2025
Author: Chittaranjan Dash
Bench: S. K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.63 of 2001
(An appeal under section 374(2) Cr.P.C. from the Judgment and
Order dated 13.02.2001 passed by the Second Addl. Sessions
Judge, Cuttack in Sessions Trial Case No.375 of 1999)
1. Laxmidhar Swain .... Appellants
2. Titu @ Deepak Kumar Mohanty
Mr. Dharanidhar Nayak,
Senior Advocate
-versus-
State of Odisha .... Opp. Party
Mr. Jateswar Nayak,
Addl. Govt. Advocate
CORAM:
THE HON'BLE MR. JUSTICE S. K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Hearing: 18.11.2025
Date of Judgment: 23.12.2025
Chittaranjan Dash, J.
1. This appeal is directed against the judgment and order dated
13.02.2001 passed by the learned Second Additional Sessions
Judge, Cuttack in Sessions Trial Case No.375 of 1999, wherein the
Appellants were found guilty of the offence under Sections 302/34
of the Indian Penal Code and sentenced to undergo imprisonment
for life. However, they were found not guilty for the offence under
Section 404 read with Section 34 of the IPC and were accordingly
acquitted thereof.
2. The prosecution case, as it unfolds from the case record and
the evidence adduced before the learned trial Court, is that on
19.10.1998 at about 8.30 P.M., the deceased, namely Surendra @
Sura Mulia, had gone to the house of one Judhistir Routray
(P.W.11) on his Luna moped bearing Registration No. OR-05-E-
6125 for some personal discussion. At around midnight, Akhaya
Pradhan (P.W.6) of the same village and Ajaya Mohanty (P.W.7) of
a neighbouring village informed the son of the deceased, who is the
Informant, that his father was lying dead with injuries. Upon
receiving such information, the Informant, along with his family
members and villagers, rushed to the spot and found the dead body
of his father lying on the river embankment with bleeding injuries
on the neck and left eye extending across the ear. The Luna moped
of the deceased was found lying beside the dead body, along with a
pair of chappals. It is further borne out from the prosecution case
that Akhaya Pradhan (P.W.6), Ajaya Mohanty (P.W.7), Sujit
Nayak, Rasananda Parida (P.W.8), and others stated that at about
11.00 P.M., while the deceased was returning from the house of
Judhistir Routray, he was allegedly chased by Deepak Mohanty @
Tutu, Bijan Parida @ Tania of village Mahespur, Naresh Baitharu
@ Gaga of village Kharla, Appellant-Laxmidhar Swain @ Nachhia
of village Khalarda, Akhaya Swain, and Subash Routray of village
Khalarda, and that the said persons were seen returning shortly
thereafter at high speed on their motorcycles. Since the deceased
had prior enmity with the accused persons, the Informant suspected
them to have committed the murder of his father and further alleged
that a sum of Rs.200/- was taken away from the pocket of the
deceased. The case record further reveals that the Officer-in-Charge
of Cuttack Sadar Police Station (P.W.19) received a telephonic
message from an unknown person regarding the dead body of one
Sura @ Surendra Mulia lying with injuries near the river
embankment at village Khalarda. On receipt of the said
information, the Officer-in-Charge, along with his staff, proceeded
to Kakatpur Canal Road at village Khalarda, Badasahi, where Tapas
Kumar Mulia, the son of the deceased, submitted a written report,
which was treated as the First Information Report. On the basis of
the said report, Cuttack Sadar P.S. Case No. 251 dated 20.10.1998
was registered, marked as Ext.4, and investigation was taken up
thereafter.
3. In course of the investigation, the I.O. (P.W.19) examined
witnesses, held inquest, seized the Luna moped, chappals, blood-
stained earth, wearing apparel, hair samples, nail clippings, and
other incriminating materials, sent the dead body for post-mortem
examination, arrested the accused persons from time to time. The
weapon of offence (Bhujali) was recovered on 05.11.1998 and
seized under Ext.6. After completion of investigation and receipt of
medical and chemical examination reports, charge-sheet was
submitted against the Appellants showing some as absconder.
4. The case of the defence is one of complete denial and false
implication, due to political rivalry.
5. In order to establish its case, the prosecution examined
nineteen witnesses in all. However, P.Ws.1, 3, 5, 6, 7, 8 and 9 did
not support the prosecution case, P.W.2, Niranjan Parida is a
witness to the inquest. P.W.4, Tapas Kumar Mulia is the Informant
being the son of the deceased is a post occurrence witness. He too
did not deliver much to the case on material particular. P.W.10,
Prashanta Kumar Behera is the eye witness to the occurrence.
P.W.11, Yudhisthir Routray is a witness to the circumstances as
well as post occurrence witness. P.W.12 is a witness to the seizure.
P.W.13 is a witness to the circumstance whereas P.W.14 is also a
witness to the circumstance as regards the extra judicial confession.
P.W.15 is a witness to the hatching of conspiracy of the murder.
P.W.16 is a witness to the seizure of weapon of offence such as
Bhujali. P.W.17 is the Medical Officer who conducted the post-
mortem examination. P.W.18 is a post occurrence witness as well as
witness to the seizure. P.W.19 is the Investigating Officer.
The defence, however, has examined two witnesses in all.
D.W.1 being a co-villager who found the Deceased with bleeding
injuries, and D.W.2, also a co-villager.
6. The learned trial court, upon assessment of the prosecution
evidence, primarily relying upon the testimony of P.W.10
corroborated by the medical evidence of P.W.17, besides other
circumstances held that the Appellants were the perpetrators of the
crime and caused the murder.
7. Mr. Dharanidhar Nayak, learned Senior Advocate appearing
for the Appellants, contended, inter alia, that the impugned
judgment of conviction is founded on surmises and conjectures and
suffers from serious infirmities in appreciation of evidence. It was
submitted that the learned trial Court erred in placing reliance on
the solitary testimony of P.W.10, whose evidence, according to the
defence, is wholly unreliable and unsafe to sustain a conviction for
an offence as grave as murder. Learned counsel argued that the very
claim of P.W.10 to have witnessed the occurrence stands
contradicted by the evidence of other prosecution witnesses on
record. Pressing upon this contention, learned counsel pointed out
that P.W.10 claimed to have been moving about on the relevant
night for the purpose of arranging labourers for his cultivation and,
during such movement, to have seen Appellant-Deepak Mohanty @
Tutu detaining the deceased on the canal ridge while riding a
scooter with co-accused Diga seated on the rear seat. It was further
asserted by P.W.10 that Appellant-Laxmidhar Swain and Bijan
Parida @ Tania were present on a Rajdoot motorcycle, with all the
vehicles in a stationary position and their headlights switched on.
P.W.10 went on to claim that he witnessed co-accused Diga
delivering a sword blow on the neck of the deceased, followed by
assaults by Appellant no.1 with a Bhujali and by Bijan Parida @
Tania with a Farsa. According to learned counsel, the aforesaid
narration is inherently improbable and bears clear signs of
fabrication.
It was further contended that the improbability of P.W.10‟s
version is fortified by the testimony of P.W.4, the Informant, who
stated that on reaching the spot he found both P.W.10 and Judhistir
Routray (P.W.11) present and that, upon enquiry, both of them
expressed ignorance about the incident. Learned counsel submitted
that had P.W.10 actually witnessed the occurrence, he would have
disclosed such vital information to the Informant at the earliest
point of time, and his silence on that occasion strikes at the root of
his credibility. Learned counsel also assailed the conduct of P.W.10
as being unnatural and suspicious, inasmuch as he claimed to have
fled from the spot out of fear despite no threat having been
extended to him by the assailants. It was further argued that the
delayed examination of P.W.10 by the police casts a serious doubt
on the veracity of his testimony. The contradictions between the
versions of P.W.10 and P.W.11, particularly with regard to
disclosure of the incident, were also highlighted as circumstances
which substantially erode the reliability of P.W.10.
It was additionally submitted that the evidence of P.W.11 is,
at best, hearsay in nature and cannot be relied upon to implicate the
Appellants. Learned counsel urged that the inconsistencies in the
prosecution version, especially concerning the presence and
conduct of the alleged witnesses at the spot, render the solitary
testimony of P.W.10 wholly unsafe to form the foundation of
conviction in the absence of independent and cogent corroboration.
Lastly, learned counsel argued that the remaining circumstances
relied upon by the prosecution, including the alleged extra-judicial
confession, the supposed hatching of a conspiracy, and the version
relating to the accused persons having chased the deceased on his
way back from the house of P.W.11, have been seriously criticised
as embellished and artificial. It was contended that the belated
examination of such witnesses appears to have been tailored to suit
the prosecution case, thereby rendering their evidence unworthy of
reliance.
8. Mr. Jateswar Nayak, learned Additional Government
Advocate, on the other hand, supported the impugned judgment and
order of conviction, contending that the same is in consonance with
the evidence available on record and does not call for any
interference. It was submitted that the prosecution has been able to
establish the guilt of the Appellants beyond reasonable doubt
through a coherent and consistent chain of evidence. Learned
counsel for the State argued that the testimony of P.W.10, when
read in conjunction with the evidence of P.Ws.11, 13, 14 and 15,
clearly establishes that the accused persons were the perpetrators of
the crime and had jointly assaulted the deceased, resulting in his
death. It was contended that the ocular account furnished by P.W.10
inspires confidence and stands fully corroborated by the medical
evidence adduced through P.W.17, thereby presenting a clear,
cogent, and trustworthy narrative implicating the accused persons
as the assailants. It was further submitted that the nature, seat, and
multiplicity of the injuries sustained by the deceased, the deadly
weapons used in the commission of the offence, and the vital parts
of the body targeted during the assault unmistakably demonstrate
that the injuries were sufficient in the ordinary course of nature to
cause death, as opined by the medical expert. According to learned
counsel, such evidence amply establishes that the accused persons
acted with intention and premeditation, and the assault was of such
severity that it resulted in the instantaneous death of the deceased.
On the aforesaid premises, learned counsel for the State contended
that the acts attributed to the Appellants squarely fall within the
ambit of the offence punishable under Section 302 of the Indian
Penal Code and that the learned trial Court rightly recorded the
conviction and imposed the sentence of imprisonment for life,
which, according to the State, warrants affirmation by this Court.
9. Before examining the rival submissions, it is necessary to
briefly note the evidence of the relevant prosecution witnesses. A
concise summary of their depositions is accordingly set out below.
P.W.4, Tapas Kumar Mulia, the Informant, while deposing
before the Court, did not support the prosecution case with regard to
the identity of the assailants. He stated that he was informed by
certain villagers, namely Batakrushna Sana, Subakar Pradhan,
Ranjan Parida and Nitayapanda Parida, that his father had been
murdered and that the dead body was lying at Hatigada Sahi of
village Khalarda. Upon receiving such information, he, along with
his relatives and villagers, proceeded to the spot and found the dead
body of his father lying there. He proved the lodging of the First
Information Report, marked as Ext.4, and his signature thereon as
Ext.4/1, stating that he himself had written the report. He further
deposed that his statement under Section 164 of the Cr.P.C. was
recorded by the Magistrate and that he had taken custody of the
Luna moped of his father after its seizure, the zimanama being
marked as Ext.5 and his signature thereon as Ext.5/1. In his cross-
examination, he stated that Prashanta Behera (P.W.10) and
Yudhisthir Routray (P.W.11) were present near the dead body when
he reached the spot, but both of them expressed ignorance regarding
the assailants. He further stated that the police had already arrived
at the spot before his arrival and admitted that the FIR was written
by him on the dictation of Yudhisthir Routray.
P.W.10, Prashanta Kumar Behera, the sole eyewitness to the
occurrence, deposed that he was acquainted with all the accused
persons as well as the deceased. According to him, on the night of
19.10.1998 at about 11.00 P.M., near Hatigada side at Bada village,
close to the canal ridge (Kapal Bandha), he witnessed the
occurrence while he had gone there to arrange labourers for his
cultivation. He stated that he saw Appellant-Titu alias Deepak
Mohanty riding a scooter with co-accused Diga seated on the rear
seat, and Appellant-Laxmidhar and Tania on a motorcycle, with all
the vehicles in starting condition and their lights switched on. He
further deposed that co-accused Diga first dealt a sword blow on the
neck of the deceased, causing him to fall to the ground, whereafter
Appellant-Laxmidhar assaulted him with a Bhujali on the forehead
and co-accused Tania inflicted a Farsa blow on his face. Out of fear,
he claimed to have fled from the spot, leaving his bicycle near the
canal, and later came to know that the deceased succumbed to the
injuries.
In his cross-examination, P.W.10 stated that the place of
occurrence was a basti area having about two houses, with 10 to 15
persons residing there, and that the houses were situated at a
distance of about 50 feet from the spot. He claimed that he was
standing on the canal embankment at a distance of about 10 to 20
feet when he witnessed the assault. He admitted that he did not
inform the family members of the deceased nor did he lodge any
report with the police. He further stated that his bicycle was not
seized by the police and was later brought back by his family
members. He denied any ill feeling towards Yudhisthir Routray and
refuted the suggestion that he had falsely implicated the accused
due to political rivalry or that he was elsewhere at the time of the
occurrence. He also denied being an associate of the deceased or
having any role in a conspiracy to murder him, and asserted that his
testimony regarding the assault was truthful.
P.W.11, Yudhisthir Routray, stated that he was acquainted
with both the accused persons and the deceased. He deposed that
on the night of 19.10.1998 at about 10.30 P.M., P.Ws.6 and 7 came
to his house on a motorcycle, and shortly thereafter the deceased
arrived on his Luna moped. According to him, they discussed
political matters concerning an upcoming Yuba Congress meeting,
and he paid a sum of ₹200 to the deceased towards pocket
expenses. P.Ws.6 and 7 left first, and about five minutes later the
deceased left his house on the Luna moped. He further stated that
at about 11.50 P.M. the same night, several persons including
Akshaya Pradhan and Ajaya Mohanty informed him that the dead
body of the deceased was lying on the canal embankment and that
the accused persons had been seen following the deceased in their
respective vehicles from near Maheshpur Chhak after consuming
liquor. On receiving such information, he went to the spot and
found the deceased lying with bleeding injuries, including cut
injuries on the neck, face and head. P.W.11 further stated that
earlier the deceased had supported Appellant-Titu alias Deepak
Mohanty, but later shifted his political support to him during the
election, on account of which the accused persons allegedly bore a
grudge against the deceased and committed his murder. In his
cross-examination, he candidly admitted that his knowledge
regarding the actual occurrence was not based on personal
observation but was derived from what others had told him. He
stated that he had given a telephonic message to the Officer-in-
Charge of Sadar Police Station, arranged to inform the family
members of the deceased, and noticed blood at the spot where the
dead body was lying near the road. He denied the suggestions of
false implication on account of political rivalry or any conspiracy
involving himself or P.W.10, and asserted that he was deposing
truthfully.
P.W.12, Arabinda Jena, deposed on oath that he was
acquainted with all the accused persons as well as the deceased,
Sura Mulia. He stated that in his presence the police seized the
blood-stained wearing apparels of the deceased from the spot.
According to him, the seizure list was prepared, read over and
explained to him, and he put his signature thereon as a witness. He
further deposed that the police also seized one blood-stained shirt
belonging to Appellant-Laxmidhar Swain at the police station in
his presence, and that he again signed the seizure list prepared in
that regard. Beyond the said seizures, he stated that he had no
personal knowledge about the occurrence. However, in his cross-
examination, the witness stated that the police had told him that the
shirt belonged to Appellant-Laxmidhar Swain and that a police
constable was holding the said shirt at the time of the alleged
seizure, thereby casting a doubt on the manner of seizure.
P.W.13, Sujeet Nayak, in his sworn testimony stated that
on the night of the occurrence at about 11.00 P.M., he and Sujit
Naik were talking on the other side of the canal at village
Khairada. He claimed to have seen the deceased, Suresh Chandra
Mulia, standing near the bridge along with another person, while
the accused persons, namely Tutu alias Deepak Mohapatra,
Digambar Swain, Tania Parida and Appellant-Laxmidhar Swain,
were sitting near a paan shop on a cement slab. According to him,
the scooter of accused Tutu alias Deepak and the Rajdoot
motorcycle of accused Tania were parked nearby. He further stated
that after P.Ws.6 and 7 passed by on a motorcycle, the deceased
left on his Luna moped and, thereafter, the said accused persons
followed him in their respective vehicles. He claimed that after
about 15 to 20 minutes, the vehicles returned at high speed towards
Pratapnagari village with the accused riding them, and later P.Ws.6
and 7 informed him that the deceased was lying dead.
In his cross-examination, P.W.13 admitted that he could
not note the registration numbers of the vehicles and had not seen
any document relating to their ownership. He further stated that it
was an Amabasya night, that he was standing at a distance of about
700 feet from the place where the accused were allegedly sitting,
and that there was no electric light at that spot. He admitted that he
had not seen any accused persons other than those named by him.
He asserted that he had disclosed these facts to the Investigating
Officer during his examination and denied the suggestion that he
had not seen the accused persons and was falsely deposing at the
instance of P.W.11.
P.W.14, who was examined in support of the alleged extra-
judicial confession, stated on oath that on 02.12.1998, while
returning from Bhubaneswar, he met accused Tutu alias Deepak
Mohanty at Rasulgarh Chhak. According to him, on being
questioned, the accused stated that the incident would not have
occurred had the deceased, Sura Mulia, not been murdered and
further disclosed that Yudhisthir Rout could not come out of his
house after the killing of the deceased. He further stated that the
accused told him that he had detained the deceased and that the
deceased was assaulted by the other accused persons.
However, in his cross-examination, P.W.14 stated that he
met the accused at Rasulgarh Chhak while waiting for an auto-
rickshaw and that the meeting took place on 02.12.1998. He
admitted that he could not say to whom he disclosed the alleged
conversation and that he had come to know about the murder of the
deceased from villagers. He further admitted that he had heard that
Tutu Mohanty and others had killed the deceased and that accused
Tutu alias Deepak did not disclose the names of the other accused
persons to him. He could not explain how the police came to know
about his alleged conversation with the accused prior to recording
his statement and admitted that he did not approach the police on
his own to report the same. He stated that on 03.12.1998 he was
examined by the Investigating Officer at the police station on being
called. He denied the suggestion that accused Tutu alias Deepak
had not made any extra-judicial confession before him and further
stated that he had returned from Bhubaneswar after selling
vegetables. He also stated that generally they travel in groups and
sometimes return in groups, and denied the suggestion that he had
deposed falsely at the instance of Padmananv.
P.W.15, Suratha Swain, in his sworn testimony stated that
he was acquainted with all the accused persons as well as the
deceased, Sura Mulia. He deposed that on the night of the
occurrence, at about 7.00 P.M., while he had gone near the bridge
side to take tea, he noticed the accused persons, namely Appellant-
Laxmidhar Swain, co-accused Akshaya Swain, co-accused Diga,
co-accused Tania and Appellant-Titu@Deepak, engaged in a
discussion amongst themselves. According to him, he overheard
them saying that the situation would be resolved if the deceased,
Sura Mulia, and Judhistir Routray (P.W.11) were killed.
Thereafter, he left the place and returned home. In his cross-
examination, he stated that he did not have any bodyguard for
security and that he had overheard the conversation from outside
the tea stall and identified the accused persons from their voices.
He further stated that he had informed the Investigating Officer
about the said discussion, although his statement was recorded
after a lapse of about 12 to 13 days. He denied the suggestion that
he had not heard any such discussion or that he was falsely
deposing at the instance of P.W.11.
P.W.16, Bandhu Charan Sahu, deposed that he knew the
accused persons as well as the deceased, Surendra Mulia. He stated
that on 05.11.1999, in his presence, the police seized one Bhujali,
which was traced out from the canal water by Parasuram Behera
and Pitapanjan Behera. He further stated that the police prepared a
seizure list in respect of the said weapon, which was read over and
explained to him, and that he signed the same after knowing its
contents. He proved the seizure list as Ext.6 and his signature
thereon as Ext.6/1, along with the signature of another witness. In
his cross-examination, he stated that though the seizure list
mentioned that the Bhujali was recovered from the canal water in
his presence, he could not recollect the length of the weapon or the
P.S. case number. He, however, denied the suggestion that no
seizure had been effected in his presence.
P.W.17, Dr. Manoj Kumar Jena, a Lecturer in the Forensic
Department of S.C.B. Medical College, Cuttack, deposed that on
police requisition he, along with Prof. J.K.B. Routray, conducted
the post-mortem examination over the dead body of Surendra
Kumar Mulia. He described the presence of multiple incised
wounds on the face, mouth and other parts of the body, fractures of
the cranial bones and contusions of the brain. According to him, all
the injuries were antemortem in nature and could be caused by a
sharp cutting weapon of moderate weight. He opined that death
was due to shock and haemorrhage as a result of cranio-cerebral
injuries and that the time since death was approximately 12 hours.
He proved the post-mortem report as Ext.7 and his opinion as
Ext.9, stating that the Bhujali produced before him could cause the
injuries except the abrasion injury. In his cross-examination, he
stated that there was no injury on the neck and admitted that he had
not opined that any single injury was independently sufficient to
cause death, though cumulatively the injuries were sufficient to
cause death.
P.W.18, Krushna Chandra Jena, stated that he knew
accused Deepak Mohanty as well as the deceased. He deposed that
on the night of Dipabali Amabasya, at about 11.00 P.M., on
hearing an alarm, he proceeded towards the house of the deceased.
On the way, he met Akshaya Pradhan and Ajoy Mohanty sitting on
a motorcycle, who informed him that the deceased had been killed.
On reaching the spot, he found the deceased lying dead with cut
injuries on the head and mouth. He further stated that the police
seized the L.F.C. Book, blood-stained earth and other articles from
the spot in his presence, and he proved the relevant seizure lists
along with his signatures. In his cross-examination, he admitted
that several persons, including Judhistir Routray and other
witnesses, were present at the spot and described the place of
occurrence as a bushy area near the house of Trailokya Samal.
P.W.19, Gyanaranjan Mohanty, the Investigating Officer,
deposed that on receipt of a telephonic message at about midnight
regarding a dead body lying at village Khalarda, he proceeded to
the spot and received the written report from the Informant, which
was treated as the First Information Report. He stated that he
conducted the investigation, visited the spot, examined witnesses,
seized various articles including the Luna moped, chappals,
documents and blood-stained earth, and prepared the inquest report
as well as the spot map. He further stated that the dead body was
sent for post-mortem examination and that the blood-stained
wearing apparels of the deceased were subsequently seized.
According to him, the accused persons were arrested on different
dates, the weapon of offence, namely the Bhujali, was recovered
from the canal after the water level subsided, and the seized
articles were sent for chemical examination. After obtaining the
medical and scientific reports, he submitted the charge-sheet.
In his cross-examination, P.W.19 admitted certain
procedural lapses, including non-examination of some nearby
residents, non-seizure of the vehicles allegedly used by the accused
persons, and irregularities in the maintenance of case diary entries.
He, however, denied the suggestions that the investigation was
tainted by political influence, bias or that it was conducted in a
perfunctory manner.
10. Having considered the submissions advanced by learned
counsel for the respective parties and keeping in view the nature of
the offence with which the Appellants stood charged, the foremost
question that arises for determination is whether the deceased met
a homicidal death. In this context, apart from the ocular version of
P.W.10, who gave a graphic account of the assault leading to the
death of the victim, the medical evidence assumes considerable
significance. P.W.17, the Medical Officer who conducted the post-
mortem examination over the dead body of the deceased, deposed
that he performed the autopsy on police requisition and recorded
the following external and internal injuries: -
(i) Incised would of size 9 cm × bone deep (eye-
socket) present transversely being extended from left
side of the face from the lateral angle of eye to the
medial angle of right eye where the underlying
tissues and the bone cut cleanly
(ii) Incised would of size 4 cm × 0.5 cm muscle deep
present transversely over the left maxilla
(iii) Incised would of size 4 cm × 0.5 cm bone deep
present over the left ala of nose
(iv) Incised would of size 13 cm × 1 cm mandible
deep present over the mouth extending 7 cm away
from the right ear and extended to the left being
involving the lower lip and the mandible which is
cut cleanly at is middle
(v) Incised would of size 4 cm × 1 cm muscle deep
extended from the right of external injury no. iv
above the face up to 4 cm in length
(vi) Incised would of size 10 cm × 0.5 cm muscle
deep present 1 cm below the external injury no. v
and placed horizontally
(vii) Incised would of size 10 cm × 0.5 cm muscle
deep placed horizontally 1 cm below the external
injury no. vi
(viii) Grazed abrasion of size 7 cm × 4 cm present
over the left shoulder tip
On dissection, following internal injuries were found:-
(i) The occipital lobes of both cerebral
hemispheres are found contused with haemorrhage
over it
(ii) The left orbital plate is fractured linearly in
length of 4 cms
(iii) The Sphenoid is fractured in a length of 6 cms
11. On the basis of these findings, he opined that all the injuries
were ante-mortem in nature and could have been caused by a sharp
cutting weapon of moderate weight. He further opined that the
cause of death was shock and haemorrhage resulting from cranio-
cerebral injuries and that the time since death was approximately 12
hours prior to the post-mortem examination. He also stated that
relevant exhibits were collected, preserved and handed over to the
police for necessary examination. The testimony of P.W.17 with
regard to the nature of the injuries, the cause of death and the use of
a sharp cutting weapon has remained unchallenged. Significantly,
during the course of hearing of the appeal, the defence also did not
dispute the fact that the deceased met a homicidal death. In the
absence of any material to the contrary, and in view of the cogent
and unimpeached medical evidence on record, we find no reason to
differ from the conclusion reached by the learned trial Court.
Accordingly, we concur with the finding that the deceased died a
homicidal death.
12. Coming to the question of complicity of the Appellants, it is
not in dispute that the prosecution rests its case primarily on the
solitary testimony of P.W.10, who has directly attributed the
commission of the murder to the Appellants. In his sworn
deposition, P.W.10 gave a detailed narration of the overt acts
allegedly committed by the Appellants, the weapons said to have
been used in the assault, and the manner in which the deceased
sustained fatal injuries resulting in his instantaneous death. If such
testimony were to be accepted at its face value and without
reservation, it would present a complete and coherent account
pointing towards the involvement of the Appellants in the murder of
the deceased.
However, the defence has seriously assailed the credibility
and reliability of P.W.10, thereby necessitating a careful and close
scrutiny of his evidence before it can be accepted as truthful. Such
an exercise becomes all the more imperative in the present case, as
the learned trial Court has substantially founded the conviction on
the sole testimony of this witness. It is well settled that it is the
quality of evidence and not the quantity that determines its
probative value. Though a conviction can legally be based on the
testimony of a solitary eyewitness, such evidence must be wholly
reliable, free from suspicion, and of sterling quality so as to inspire
complete confidence in the mind of the Court.
13. The Hon‟ble Supreme Court, in Rai Sandeep @ Deepu
alias Deepu vs. State (NCT of Delhi), reported in (2012) 8 SCC 21,
has lucidly explained the concept of a "sterling witness", as
follows:
"22. In our considered opinion, the "sterling witness"
should be of very high quality and caliber whose
version should, therefore, be unassailable. The court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from
the starting point till the end, namely, at the time when
the witness makes the initial statement and ultimately
before the court. It should be natural and consistent
with the case of the prosecution qua the accused.
There should not be any prevarication in the version of
such a witness. The witness should be in a position to
withstand the cross-examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well
as the sequence of it. Such a version should have co-
relation with each and every one of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty
of the offence alleged against him. Only if the version
of such a witness qualifies the above test as well as all
other such similar tests to be applied, can it be held
that such a witness can be called as a "sterling
witness" whose version can be accepted by the court
without any corroboration and based on which the
guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the
crime should remain intact while all other attendant
materials, namely, oral, documentary and material
objects should match the said version in material
particulars in order to enable the court trying the
offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of
the charge alleged."
14. The Hon‟ble Supreme Court in the aforesaid decision has
held that an eye-witness must be of very high quality and calibre,
whose version is unassailable. The Court must be in a position to
accept the testimony of such a witness at its face value without
hesitation. To test the quality of such evidence, the truthfulness of
the statement assumes paramount importance, and equal emphasis
is required to be placed on the consistency of the version from the
inception of the prosecution case till the culmination of the trial.
The testimony should be natural, cogent, and in complete harmony
with the prosecution case against the accused, without any material
prevarication or embellishment. The witness must also be able to
withstand cross-examination of any length or severity, and his
evidence should not leave room for any doubt with regard to the
occurrence, the persons involved, or the sequence of events.
Viewed in the aforesaid legal backdrop, the testimony of
P.W.10 calls for strict and cautious scrutiny. Unless his evidence is
found to be wholly trustworthy, consistent and unimpeachable, it
would be unsafe to sustain the conviction of the Appellants solely
on the basis of his testimony.
15. Having regard to the criticism advanced by the defence that
P.W.10 has falsely projected himself as an eyewitness to the
occurrence, a careful scrutiny of his evidence reveals certain
inconsistencies and prevarications which cannot be brushed aside as
inconsequential while assessing the veracity of his testimony. One
such circumstance emerges from the contradictory versions
regarding disclosure of the incident. While P.W.11 stated that
P.W.10 had disclosed the occurrence to him on the very night of the
incident, P.W.10 categorically denied having made any such
disclosure. Similarly, though there is evidence on record suggesting
the presence of P.W.10 at the spot immediately after the
occurrence, P.W.10 himself denied being present there at that time.
Significantly, P.W.4, the Informant, stated that immediately
after being informed by P.Ws.6 and 7 that his father had been
assaulted and was lying injured, he rushed to the spot and found
both P.W.10 and P.W.11 present there. He further stated that upon
enquiring from them about the assailants, both P.W.10 and P.W.11
expressed ignorance. This version assumes importance, as it
directly contradicts the claim of P.W.10 of having witnessed the
assault. Further, while P.W.11 asserted that P.W.10 disclosed the
occurrence to him on the very night, P.W.10 denied the same,
thereby introducing a material contradiction. In such circumstances,
had P.W.10 truly been an eyewitness to the incident, there appears
to be no plausible reason for him to deny knowledge of the
occurrence either before P.W.4 or before the police, particularly
when the investigation had already commenced in the village.
In view of Section 6 of the Evidence Act, the doctrine of res
gestae refers to facts, statements, or acts made by a person that are
so closely connected with the facts in issue as to form part of the
same transaction. Such facts are relevant and admissible in
evidence. It is an exception to hearsay evidence as it does not allow
any time for fabrication of false story which is the reason why
hearsay evidence are not admissible as they allow a great deal of
doubt to fabricate the false story to dilute the truth. The concept of
spontaneity and immediate acts are essential conditions for a fact to
be admissible under Section 6. A transaction can include both
physical acts done by a person, or a word said or statements
connected with the facts in issue and it can be such words spoken
by the person who has done such acts, or some other person
connected with the issue. The statement given by P.W.10 before
P.W.4 immediately after the occurrence at the scene of occurrence
having no knowledge as to who killed the deceased is admissible as
res gestae and it creates a serious doubt as to his being an eye-
witness to the occurrence and renders his testimony unreliable.
Moreover, though P.W.10 claimed to have disclosed the
incident to his family members and other villagers, none of such
persons were examined by the prosecution. Even P.W.10 denied
having disclosed the occurrence to P.W.11, whereas P.W.1 stated
that he had come to know about the occurrence on the very night
from P.W.10. An additional and significant circumstance
highlighted by the defence is the delayed examination of P.W.10 by
the investigating agency. Despite P.W.10 admittedly being present
in his house in the same village, and notwithstanding the fact that
his family members and villagers would have known about his
alleged witnessing of the incident, his statement was recorded only
about one and a half days after the occurrence. If the version of
P.W.10 was true, such a delay in his examination remains
unexplained. The cumulative effect of these discrepancies and
contradictions goes to the root of the prosecution case insofar as the
claim of P.W.10 being an eyewitness is concerned. These
infirmities are not minor or peripheral in nature but strike at the
credibility of the witness, thereby creating a serious doubt regarding
the reliability of his testimony as an eyewitness to the occurrence.
16. The evidence on record further discloses that the statement
of P.W.10 was recorded belatedly, despite the admitted position that
he was present in his house throughout and that the police had been
frequently visiting the village in connection with the investigation.
This delay assumes significance particularly in a situation where the
witness himself categorically stated that no threat or intimidation
was extended to him by the accused persons. In such circumstances,
a cogent and convincing explanation was required from the
prosecution as to why P.W.10, despite allegedly having witnessed
the occurrence and being aware of the identity of the assailants,
refrained from disclosing the same to the police at the earliest
opportunity. This becomes all the more relevant when P.W.10
claimed that he had already disclosed the occurrence to the villagers
as well as to his family members, yet chose to wait until his
statement was formally recorded by the investigating agency.
Learned counsel for the Appellants has further relied upon
the judgment of the Hon‟ble Supreme Court in State of Orissa vs.
Brahmananda Nanda, reported in AIR 1976 SC 2488, to submit
that an eye-witness who withholds the identity of the assailant for a
considerable period without any plausible explanation cannot be
treated as reliable. In the said decision, the Supreme Court held that
failure of the witness to disclose the name of the assailant for about
one and a half days, despite the presence of police and absence of
any real threat, constituted a serious infirmity which destroyed the
credibility of the testimony. The principle laid down therein
squarely applies to the facts of the present case, where P.W.10,
despite claiming to have witnessed the occurrence, neither disclosed
the names of the assailants at the earliest opportunity nor offered
any convincing explanation for such silence, even when the police
had already commenced investigation. Such unexplained conduct
casts a serious shadow on the trustworthiness of his version.
The delay in the examination of P.W.10 could have carried
some sanctity had the prosecution examined any independent
villagers to substantiate the claim that the witness had indeed
disclosed the occurrence to them soon after the incident. Likewise,
no member of his family was examined to lend assurance and
credibility to his version. The absence of such corroborative
evidence, when considered in conjunction with the statements of
P.W.11 and P.W.4, as discussed hereinbefore, renders the testimony
of P.W.10 short of the standard of a "sterling witness" whose
evidence could be relied upon implicitly and beyond reproach.
Considering the gravity of the offence alleged against the
accused persons, the scrutiny of evidence must necessarily be more
rigorous. Where the prosecution seeks to rest its case substantially
on the solitary testimony of an eyewitness, such evidence must be
free from embellishment, consistent in all material particulars, and
must ring true so as to inspire the confidence of the Court. In the
facts and circumstances of the present case, the testimony of
P.W.10 does not satisfy these essential requirements and, therefore,
cannot be accepted as wholly reliable to sustain the conviction on
its own.
17. The reliance placed on the issue of delay in recording the
statement of P.W.10 is required to be examined in the light of the
settled legal position in Firoz Khan Akbarkhan vs. The State of
Maharashtra, reported in 2025 SCC OnLine SC 627, wherein the
Hon‟ble Supreme Court has clarified the as follows:
"21. Insofar as the delay of 2/3 days in recording the
statements of the eye-witnesses under Section 1615 of
the Code of Criminal Procedure, 1973 (hereinafter
referred to as the „Code‟) is concerned, the said delay
has been thoroughly explained by the witnesses,
including the Investigating Officer, to the effect that
there were riots in the area. On this score, the
Investigating Officer was involved in maintaining law
and order in the affected area. In the attendant facts
and circumstances, the course of action adopted by the
police cannot be termed unjustified and no adverse
inference can be drawn on this count. No doubt that
Court has laid down that an inordinate delay in
recording witness statements can prove to be fatal for
the prosecution, as pointed out by three learned Judges
in Ganesh Bhavan Patel v State of Maharashtra,
(1978) 4 SCC 371; however, therein, the delay in
recording statements of the material witnesses was
accompanied by a delay in registering of the FIR and
the surrounding circumstances, which led the Court to
hold that there was a „a cloud of suspicion on the
credibility of the entire warp and woof of the
prosecution story.‟ In Jagjit Singh v State of Punjab,
(2005) 3 SCC 689 and State of A.P. v S Swarnalatha,
(2009) 8 SCC 383, the Court held in favour of the
convict/accused, as the inordinate delays therein could
not be sufficiently explained. Delay of about 27 days,
in a case where communal violence had broken out,
was held not fatal, in Lal Bahadur v State (NCT of
Delhi), (2013) 4 SCC 557. Delay of over 2 years in
recording witness statements was deemed not fatal,
when explained, in Baldev Singh v State of Punjab,
(2014) 12 SCC 473. Delay in recording witness
statements was held not fatal per se in Sunil Kumar v
State of Rajasthan, (2005) 9 SCC 283 and V K
Mishra v State of Uttarakhand, (2015) 9 SCC 588.
Delay in recording statements of witnesses was held to
have cast serious doubts on the prosecution version in
Shahid Khan v State of Rajasthan, (2016) 4 SCC 96
and Jafarudheen v State of Kerala, (2022) 8 SCC
440. It was held, in Goutam Joardar v State of W. B.,
(2022) 17 SCC 549, by a Coordinate Bench that „there
was some delay in recording the statements of the
eyewitnesses concerned but mere factum of delay by
itself cannot result in rejection of their testimonies.‟
Per our understanding, Ganesh Bhavan Patel (supra)
is not an authority to contend that delay in recording
witness statements is always fatal to the prosecution‟s
case. Thus, stricto sensu, delay in recording witness
statements, more so when the said delay is explained,
will not aid an accused. Of course, no hard-and fast
principle in this regard ought to be or can be laid
down, as delay, if any, in recording statements will
have to be examined by the Court concerned in
conjunction with the peculiar facts of the case before
it. Our reading of the above shall apply on all fours to
delays in the context of Section 164 of the Code."
Emphasis supplied
18. Tested on the anvil of the aforesaid principles, the present
case stands on a materially different footing. Here, the delay in
recording the statement of P.W.10 is neither satisfactorily explained
nor supported by any compelling circumstances such as law and
order exigencies, fear, or inability on the part of the investigating
agency. On the contrary, the evidence reveals that P.W.10 was
available in the village, police were visiting the locality for
investigation, and yet no plausible explanation has been offered as
to why the witness, who claims to be an eyewitness and to have
disclosed the incident to villagers and family members, did not
come forward at the earliest opportunity. The delay, therefore,
cannot be viewed in isolation but assumes significance when
considered alongside the material inconsistencies, contradictions,
and omissions in his testimony, as well as the absence of
corroboration from independent or natural witnesses.
Though learned counsel for the State has placed reliance on
the decision of the Hon‟ble Supreme Court in Goutam Joardar vs.
State of West Bengal, (Supra), to contend that mere delay in
recording statements of witnesses is not by itself fatal to the
prosecution case, the said principle cannot be applied mechanically
to the facts of the present case. As consistently held, the issue of
delay has to be examined in the backdrop of all the available
circumstances, the conduct of the witness, and the overall
credibility of the prosecution version. Unlike cases where delay
stands convincingly explained, the prosecution herein has failed to
furnish any cogent or plausible explanation for the belated
examination of this witness or for the manner in which his
statement surfaced during investigation. The absence of such
foundational facts renders the testimony of the witness shrouded in
mystery and fraught with serious doubt.
19. So far as the version of the witness relating to the alleged
extra-judicial confession is concerned, the same suffers from
glaring infirmities. Before adverting to the appreciation of the
evidence, it would be apposite to refer to the settled legal position
governing the evidentiary value of such confessions. The Hon‟ble
Supreme Court in Chandrapal vs. State of Chhattisgarh, reported
in (2022) SCC OnLine SC 705, has cautioned that an extra-
judicial confession, by its very nature, is a weak piece of evidence
and must be subjected to strict scrutiny, as follows:
"11. At this juncture, it may be noted that as per
Section 30 of the Evidence Act, when more persons
than one are being tried jointly for the same offence,
and a confession made by one of such persons
affecting himself and some other of such persons is
proved, the court may take into consideration such
confession as against such other person as well as
against the person who makes such confession.
However, this court has consistently held that an
extra judicial confession is a weak kind of evidence
and unless it inspires confidence or is fully
corroborated by some other evidence of clinching
nature, ordinarily conviction for the offence of
murder should not be made only on the evidence of
extra judicial confession. As held in case of State of
M.P. Through CBI v. Paltan Mallah, the extra
judicial confession made by the co-accused could be
admitted in evidence only as a corroborative piece of
evidence. In absence of any substantive evidence
against the accused, the extra judicial confession
allegedly made by the co-accused loses its
significance and there cannot be any conviction
based on such extra judicial confession of the co-
accused."
20. In the instant case, at the outset, it is noticed that the witness
was examined nearly eight days after the incident, when on the very
next day after the alleged confession was said to have been made
before him. Moreover, the evidence on record clearly establishes
that P.W.14, who is relied upon for the alleged extra-judicial
confession, never volunteered to approach the police on his own. It
is further evident that the said witness is a resident of a place far
removed from the village where the occurrence took place. No
evidence, either direct or circumstantial, has been brought on record
to disclose the nature or degree of acquaintance between this
witness and the Appellants, which could reasonably explain why
the accused would repose such confidence in him so as to
voluntarily confess their alleged involvement in the crime. There is
also a complete absence of any material to even remotely indicate
the source from which the I.O. came to know about this alleged
confession or the manner in which the witness was traced as a
recipient of such information. Consequently, the purported extra-
judicial confession cannot be treated as sacrosanct or relied upon as
a credible piece of evidence against the Appellants.
21. Coming to the circumstance relating to seizure, the evidence
of the seizure witness with respect to the alleged recovery of the
blood-stained shirt of the Appellant-Laxmidhar is found to be
prevaricating and unreliable. In his examination-in-chief, P.W.18
stated that the said shirt was seized by the police in his presence.
However, in his cross-examination, he materially departed from this
version and categorically stated that the police had merely shown
the shirt to him and that he had no knowledge about the place from
where it was seized or the circumstances under which such seizure
was effected. This material inconsistency strikes at the root of the
prosecution case so far as the seizure is concerned and renders the
alleged recovery doubtful.
Further, the C.E. Report vide Ext.16 does not disclose the
blood group detected on the seized article, thereby failing to
establish that the blood allegedly found on the shirt was that of the
deceased. In the absence of such scientific corroboration, the mere
recovery of a blood-stained article, even if assumed, does not
advance the prosecution case. Consequently, none of the
incriminating articles seized and sent for chemical examination can
be said to have established any cogent nexus between the crime and
the accused.
22. In view of the foregoing analysis and the discussion made
hereinabove, while this Court affirms the conclusion that the
deceased met with a homicidal death, the prosecution has failed to
establish, by reliable and cogent evidence, whether direct or
circumstantial, the guilt of the Appellants beyond all reasonable
doubt. The evidence on record suffers from material
inconsistencies and infirmities, which go to the root of the
prosecution case and render it unsafe to sustain the conviction. In
such circumstances, the Appellants are clearly entitled to the
benefit of doubt, and the conviction and sentence recorded against
them cannot be allowed to stand.
23. In the result, the Criminal Appeal is allowed. The judgment
of conviction and order of sentence dated 13.02.2001 passed by the
learned Second Additional Sessions Judge, Cuttack in Sessions
Trial Case No.375 of 1999 are hereby set aside. The Appellants are
acquitted of the charge under Section 302 read with Section 34 of
the Indian Penal Code by extending to them the benefit of doubt.
24. Since the Appellants are on bail, their bail bonds stand
discharged. They shall be released from all liabilities arising out of
the present case, if not required in connection with any other case.
(Chittaranjan Dash)
Judge
I, Agree.
Signed by: ANANTA KUMAR PRADHAN
Judge
A.K.Pradhan
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 23-Dec-2025 16:50:37
