[Cites 9, Cited by 0]
Orissa High Court
Kathu Karua vs State Of Odisha on 23 December, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.58 of 2006
An appeal under section 374 of Cr.P.C. from the judgment and
order dated 06.10.2005 passed by the Adhoc Additional Sessions
Judge (F.T.), Champua in S.T. Case No.109/79 of 2004-03.
-------------------------
Kathu Karua ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Debi Prasad Dhal
Senior Advocate
Mr. B.S. Dasparida
Advocate
For Respondent: - Mr. Aurovinda Mohanty
Addl. Standing Counsel
CRLA No.450 of 2005
Ramesh Apat ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Debi Prasad Dhal
Senior Advocate
(Amicus Curiae)
For Respondent: - Mr. Aurovinda Mohanty
Signature Not Verified
Addl. Standing Counsel
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF
-------------------------
ORISSA, CUTTACK
Date: 23-Dec-2025 14:15:48
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 1 of 50
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH
-----------------------------------------------------------------------------------------------------------------------
Date of Hearing: 16.12.2025 Date of Judgment: 23.12.2025
--------------------------------------------------------------------------------------- --------------------------------
S.K. Sahoo, J.: The appellant Kathu Karua in JCRLA No.58 of 2006
and the appellant Ramesh Apat in CRLA No.450 of 2005 along
with co-accused Dadu @ Anil Patra faced trial in the Court of
learned Adhoc Additional Sessions Judge (F.T.), Champua in S.T.
Case No.109/79 of 2004-03 for offences punishable under
section 376(2)(g), 302/34 and 201/34 of the Indian Penal Code
(hereinafter „I.P.C.‟) on the accusation that on 22.08.2002 at
Kamarjoda tank under Joda police station, they committed gang
rape on „BN‟ (hereinafter, „the deceased‟) and intentionally
committed her murder in furtherance of their common intention
and that knowing or having reason to believe that the offence of
gang rape and murder had been committed, caused certain
evidence connected with the said gang rape and murder to
disappear by throwing the dead body near Kamarjoda tank inside
the putus bushes with intention to screen themselves from legal
punishment in furtherance of their common intention.
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 2 of 50
The learned trial Court vide impugned judgment and
order dated 06.10.2005 though acquitted the co-accused Dadu
@ Anil Patra of the offences charged, but found both the
appellants guilty of the offences charged and sentenced each of
them to undergo R.I. for a period of ten years for the offence
under section 376(2)(g) of the I.P.C., R.I. for life and to pay a
fine of Rs.5,000/- (rupees five thousand) for the offence under
section 302/34 of the I.P.C. and R.I. for a period of three years
and to pay a fine of Rs.1,000/- (rupees one thousand) for the
offence under section 201/34 of the I.P.C. and all the sentences
were directed to run concurrently.
Since both the appeals arise out of same judgment,
with the consent of learned counsel for the respective parties,
those are heard analogously and disposed of by this common
judgment.
Prosecution Case:
2. The prosecution case as per the first information
report (hereinafter, „F.I.R.‟) (Ext.1) lodged by P.W.1 Pabitra
Naik, the brother-in-law of the deceased on 23.08.2002 at about
9.15 a.m. before the Officer in-charge of Joda police station
(P.W.10), in short, is that he had been residing at Banspani Coal
Hutting since last twenty five years. On 22.08.2002 at about
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 3 of 50
3.00 p.m., he returned home after finishing his duties from S. lal
Mines, Joda and at about 9.00 p.m., his mother-in-law Srimati
Naik came to his house and told him that her daughter-in-law
(deceased), who was also the sister-in-law (Sala bhauja) of
P.W.1, had been to Kamarjoda in order to tie Rakhi to his God
brother Surendra Mohanty at about 4.00 p.m. leaving her two
children in the house, but she did not return home. Upon hearing
this from his mother-in-law Srimati Naik, P.W.1 went to the
house of Surendra Mohanty but came to know from him that the
deceased had not come there and then he asked Bhuban Penthei
and some other persons from the locality regarding the
whereabout of the deceased but he could not ascertain any
whereabouts of the deceased and then he returned to the house
and slept. On the next morning i.e. on 23.08.2002 at about 6.00
a.m., P.W.1 got an information from one Geeta Munda (P.W.5)
that a woman was lying unconscious inside the putus bushes
below the ridges of Kamarjoda embankment. Then P.W.1 along
with Rudra Gopa and Mohan Karua came to that spot and found
the deceased was lying dead inside the putus bushes and she
was in a naked condition and blood was oozing from her nose
and eyes and that her napkin and chappals were lying at a little
distance so also her plastic bag and Rakhies. Seeing the dead
body of the deceased, P.W.1 strongly suspected that somebody
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 4 of 50
had committed rape on her and then committed her murder.
After returning from the spot, P.W.1 told the incident before his
wife (P.W.4), his mother-in-law, P.W.5 and also before other
villagers and then the villagers immediately rushed to the spot
and made a scrutiny as to who committed the offence and in that
process, the villagers suspected involvement of the two
appellants in the crime and took them to Giri Babu (P.W.3), the
village Mukhia. The appellants were interrogated by P.W.3 and
other villagers about the occurrence and then the appellants
were taken to the police station, but prior to their arrival, P.W.1
came with his wife (P.W.4) to the police station and orally
reported the matter.
P.W.10 Prakash Kumar Naik, the Officer in-charge of
Joda police station reduced the oral report of P.W.1 into writing
and read over the same to him and finding the same to have
been correctly written, P.W.1 put his signature in the report. As
the above report revealed a cognizable case under sections
376/302/201 of the I.P.C., P.W.10 treated the report as F.I.R.
(Ext.1) and registered the same as Joda P.S. Case No.126 dated
23.08.2002 and he himself took up investigation of the case.
During course of investigation, P.W.10, the I.O.
examined the informant (P.W.1) and accompanying witness
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 5 of 50
Purnima Naik (P.W.4) on the same day. P.W.3, P.W.5 and others
came to the police station and produced appellants Kathu Karua
and Ramesh Apat before P.W.10. P.W.10 thereafter examined
both the appellants and also examined Girish Chandra Mohanty
(P.W.3) and visited the spot and prepared the spot map vide
Ext.7. The dead body of the deceased was lying at the spot with
her wearing apparels folded on her chest and the entire body up
to her chest was naked and he also found one napkin and a pair
of plastic chappal, one plastic bag containing Rakhi near the spot
and there was dragging mark from the embankment up to the
place where the dead body was lying and the putus bushes were
found to have been disturbed and there was blood stains at the
spot. P.W.10 held inquest over the dead body of the deceased at
the spot in presence of the witnesses and prepared the inquest
report Ext.2. He seized the plastic bag containing Rakhi, a pair of
hawai chappal, one brown colour napkin, some blood-stained
earth and sample earth and prepared seizure list Ext.6. P.W.10
dispatched the dead body of the deceased to Govt. Hospital,
Barbil for post mortem examination through constable C/247
R.K. Sahoo and at about 2.00 p.m., co-accused Dadu @ Anil
Patra voluntarily surrendered before P.W.10 at the police station
and he was examined and on the same day at about 3.00 p.m.,
P.W.10 arrested both the appellants and the co-accused and at
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 6 of 50
3.15 p.m., he seized the wearing napkin of the co-accused
suspected to be stained with semen and blood and prepared the
seizure list Ext.3 and at about 3.30 p.m., he seized the wearing
check napkin of appellant Ramesh Apat suspected to be stained
with semen and blood and prepared the seizure list Ext.4 and
similarly, he also seized the wearing blue colour nicker of
appellant Kathu Karua suspected to be stained with semen and
blood and prepared the seizure list Ext.5. At about 4.00 p.m.,
P.W.10 sent both the appellants and the co-accused to the
Government Hospital, Joda under three separate requisitions for
collection of their sample blood and nail clippings, pubic hairs
and other medico legal points through A.S.I. B.K. Tripathy.
P.W.10 also seized the wearing apparels of the deceased on
production by the constable after the post mortem examination
over the dead body was over and prepared the seizure list Ext.12
and examined other witnesses. P.W.10 seized the sample blood,
sample semen, nail clippings, sample pubic hairs of both the
appellants and the co-accused and kept it in separate vials after
collection of same by M.O., Govt. Hospital, Joda on production by
A.S.I. B.K. Tripathy and prepared the seizure list Ext.13.
On 24.08.2002 at about 1 p.m., P.W.10 forwarded
both the appellants and the co-accused Dadu
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 7 of 50
@ Anil Patra to the Court of learned J.M.F.C., Barbil in custody
with a prayer to record their confessional statements under
section 164 Cr.P.C. On 12.11.2002, he made a prayer before the
learned J.M.F.C., Barbil to dispatch the seized articles to S.F.S.L.,
Rasulgarh for chemical examination. On 24.08.2002, P.W.10
received the post mortem examination report and on
27.11.2002, he made a query to P.W.11, who conducted the
post mortem examination over the dead body of the deceased to
opine whether the injuries found over the dead body of the
deceased could be possible by small boulder or stones and
whether the injuries found on the person of the deceased could
be possible during sexual assault and the Medical Officer gave
his opinion vide query report Ext.16/2. On completion of
investigation, P.W.10 submitted charge sheet against both the
appellants and the co-accused Dadu @ Anil Patra on 06.12.2002
under sections 376(2)(g)/302/201/34 of the I.P.C.
Framing of Charges:
3. After submission of charge sheet, the case was
committed to the Court of Session after complying due
formalities. The learned trial Court framed charges against both
the appellants and the co-accused as aforesaid and since the
appellants and the co-accused refuted the charges, pleaded not
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 8 of 50
guilty and claimed to be tried, the sessions trial procedure was
resorted to prosecute them and establish their guilt.
Prosecution Witnesses, Exhibits and Material Objects:
4. During the course of the trial, in order to prove its
case, the prosecution has examined as many as twelve
witnesses.
P.W.1 Pabitra Naik is the brother-in-law of the
deceased and also the informant in the case. He supported the
prosecution case.
P.W.2 Bhaskar Karua and P.W.3 Giridhari Mohanty
did not support the prosecution case for which they were
declared hostile by the prosecution.
P.W.4 Purnima Naik is the wife of P.W.1 and sister-
in-law (brother‟s wife) of the deceased. She stated that the
deceased went to a neighbouring village on Rakhi Purnima to tie
Rakhi but her mother informed her in the evening hour on the
date of occurrence that the deceased did not return home and
thereafter, her husband (P.W.1) went in search of the deceased
but could not found her. She further stated that she came to
know from P.W.5 and P.W.8 that a female had been killed and
her dead body was lying by the side of the embankment and
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 9 of 50
thereafter, she along with others went to the spot and identified
the dead body to be that of the deceased and that the dead body
was lying in a naked condition and there was bleeding injuries
from her eye lids and nostrils and she guessed that the deceased
was being raped and killed and thereafter, on the query of the
villagers, it came to her knowledge that the appellant Kathu
Karua was the perpetrator of the crime and on interrogation, he
confessed his guilt of committing rape and murder of the
deceased along with appellant Ramesh Apat and the co-accused.
P.W.5 Geeta Champia, P.W.7 Malati Naik and P.W.8
Kamala Gope are the witnesses to the extrajudicial confession
made by appellant Kathu Karua and they supported the
prosecution case.
P.W.6 Ramachandra Naik partly supported the
prosecution case for which he was declared hostile by the
prosecution.
P.W.9 Babulu Patra is a star witness but did not
support the prosecution case for which he was declared hostile
by the prosecution. On being cross-examined by prosecutor, he
supported the prosecution case.
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 10 of 50
P.W.10 Prakash Kumar Naik was the Officer in-
charge of Joda police station, who is the Investigating Officer of
the case.
P.W.11 Dr. Satyabrata Panda was the Assistant
Surgeon at Government Hospital, Barbil, who on police
requisition, conducted post mortem examination over the dead
body of the deceased and proved his report vide Ext.17. He also
proved his opinion on the query by P.W.10 vide Ext.16/2.
P.W.12 Dr. Jagdish Prasad Sahoo was the Medical
Officer at Government Hospital, Joda, who on police requisition,
examined both the appellants and the co-accused and proved his
reports vide Ext.9/2, Ext.10/2 & Ext.11/2.
The prosecution exhibited eighteen documents. Ext.1
is the F.I.R., Ext.2 is the inquest report, Exts.3, 4, 5, 6, 12 and
13 are the seizure lists in respect of the seizure of different
articles, Ext.7 is the spot map, Ext.8 is the dead body challan,
Ext.9/2 is the medical examination report of co-accused Dadu @
Anil Patra, Ext.10/2 is the medical examination report of
appellant Ramesh Apat, Ext.11/2 is the medical examination
report of appellant Kathu Karua, Ext.14 is the prayer of the I.O.
to send the seized articles for chemical examination, Ext.15 is
the forwarding report, Ext.16 is the query of the I.O. regarding
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 11 of 50
rape and murder of the deceased, Ext.17 is the post mortem
report and Ext.18 is the chemical examination report.
The prosecution has also proved nine material
objects. M.O.I is the printed saree, M.O.II is the reddish pink
colour saya, M.O.III is the black blouse, M.O.IV is the brown
napkin, M.O.V is the brown check napkin, M.O.VI check napkin,
M.O.VII is the blue half pant, M.O.VIII is the Rakhi and M.O.IX is
a pair of hawai chappal.
Defence Plea:
5. The defence plea of the appellants is one of denial
and false implication in this case.
Defence has neither examined any witness nor
exhibited any document.
Findings of the Trial Court:
6. The learned trial Court, after assessing the oral as
well as documentary evidence on record, particularly the
evidence of the Medical Officer (P.W.11) and the post mortem
report finding vide Ext.17, came to hold that the deceased met
with a homicidal death. The Court observed that there are no
eye witnesses to the occurrence of rape and murder of the
deceased and the prosecution relies on the circumstantial
evidence available on record against the appellants. The learned
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 12 of 50
trial Court further taking into account the evidence of the
independent witnesses, the I.O. (P.W.10) and the medical
evidence (P.W.11) coupled with the admitted fact that the
deceased was a middle-aged widow and the dead body of the
deceased was lying in a half-naked condition inside the putus
bushes below the ridges of the embankment came to the
conclusion that she had been gang raped prior to her death. The
learned trial Court after close scrutiny of the evidence on record
indicated the following circumstances emerged against the
appellants:
"(i) The deceased left her house at about
4.00 p.m. on 22.08.2002 and went to
Kamarjoda to tie Rakhi on the hand of his God
brother;
(ii) There is an embankment which runs in
between Banspani where the deceased was
residing at the time of occurrence and
Kamarjoda, her proposed destination;
(iii) The deceased did not return home in the
intervening night of 22/23.08.2002;
(iv) The dead body of the deceased was found
inside a lonely and isolated place i.e. the putus
bushes below the ridges of the embankment
which runs from Banspani to Kamarjoda;
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 13 of 50
(v) The dead body of the deceased was lying
half naked and there were no clothing up to her
waist and her wearing apparels were folded on
the upper parts of her waist and there were
injuries on her face, eyes and head;
(vi) The deceased died within a few hours of
her departure from her house;
(vii) There were dragging marks on the
embankment ridges near the spot where the
dead body was lying;
(viii) Bablu Patra (P.W.9) was passing through
that embankment on the date of occurrence at
about 4.00 to 5.00 p.m. and he heard the
sound of shrinking of „OON AAN‟ from the putus
bushes below the embankment and he saw
appellant Kathu Karua standing naked inside
the putus bushes and he also saw the hair and
blouse of a woman who was lying inside the
putus bushes and that appellant Kathu was
standing at the side of that female being
naked;
(ix) The extrajudicial confession of accused
Kathu Karua and Ramesh Apat."
After discussing the circumstances, the learned trial
Court held that the prosecution has well proved the
circumstances that the appellant Kathua Karua was seen in the
same putus bushes where the deceased was lying at about 4.00
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 14 of 50
to 5.00 p.m. on 22.08.2002 and where her dead body was
detected in the early morning of 23.08.2002 and that the
presence of appellant Ramesh Apat and the co-accused nearby
the putus bushes have been unerringly established.
The learned trial Court further held that P.W.2 and
P.W.3 have suppressed their knowledge regarding the
extrajudicial confession of both the appellants and the evidence
of P.Ws.2 and 3 will no way ruin the case of prosecution as the
factum of extrajudicial confession has been well proved by other
independent witnesses and particularly by P.W.8 and the
materials in the case record is completely silent that P.W.8 had
got any motive for falsely implicating both the appellants and the
co-accused in the case. The learned trial Court further held that
the extrajudicial confession made by both the appellants before
the villagers including P.W.9 regarding their guilt of committing
the rape and murder of the deceased on 22.08.2002 at the putus
bushes near Kamarjoda-Banspani embankment is inculpatory
and the same has been conclusively proved with the
corroborative circumstances of the case. The learned trial Court
further held that except the confessional statement made by the
co-accused before the police, he has not made any extrajudicial
confession before the villagers and he voluntarily surrendered
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 15 of 50
before the police and confessed his guilt of committing the rape
and murder of the deceased and there is no other evidence
against the co-accused for committing the crime except the
confession before the police. The learned trial Court further held
that the injuries found on the person and human blood in the
wearing apparels of both the appellants are the additional links
to the chain of circumstances for proving their involvement in the
offence. The learned trial Court further held that in view of the
prosecution evidence and the surrounding circumstances which
have been proved unerringly leads to the only conclusion that
both the appellants were responsible for the gang rape and
murder of the deceased and their involvement in the crime has
been unerringly proved by the prosecution beyond all reasonable
doubt. Accordingly, both the appellants were found guilty under
sections 376(2)(g)/302/201/34 of the I.P.C. The learned trial
Court further held that there is no other corroborative evidence
against the co-accused Dadu @ Anil Patra except the confession
of both the appellants and the confession of co-accused before
the police after his surrender at the police station and therefore,
acquitted the said co-accused.
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 16 of 50
Contentions of the Parties:
7. Mr. Debi Prasad Dhal, learned Senior Advocate
appearing on behalf of appellant Kathu Karua in JCRLA No.58 of
2006 and appellant Ramesh Apat in CRLA No.450 of 2005 being
ably assisted by Mr. B.S. Dasparida argued that there is no direct
evidence implicating both the appellants and the case is based
on circumstantial evidence. Learned counsel argued that in the
absence of any direct evidence and merely on the basis of
extrajudicial confession of the appellants and the co-accused,
they cannot be held guilty for the said crime. Learned counsel
further argued that the extrajudicial confession is only a
circumstantial piece of evidence, which needs corroboration on
material particulars and in absence thereof, it is not safe to base
a conviction. Learned counsel further found fault with the
approach of the learned trial Court in placing reliance upon the
evidence of P.W.9 inasmuch as though P.W.9 after being
declared hostile by the prosecution stated that the appellant
Kathu Karua threatened him to keep mum and that if (P.W.9)
disclosed to anyone, he (appellant Kathu Karua) would murder
him, but in the cross-examination by defence, he has admitted
that he had not stated before the police about threat given by
the said appellant to commit his murder and not to disclose
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 17 of 50
before anybody. Learned counsel further submitted that
notwithstanding the settled position of law that even the
testimony of a hostile witness can be relied upon as admissible
evidence, but when there is apparent contradiction in his
statements, it is risky to rely upon his version which must be
discarded from the prosecution evidence. He further argued that
so far as appellant Ramesh Apat is concerned, except the
extrajudicial confession of appellant Kathu Karua, there is no
other evidence against him and therefore, it is a fit case where
benefit of doubt should be extended in favour of the appellants.
To substantiate his arguments, he placed reliance on the
decisions of this Court in the cases of Astami Mahakud -Vrs.-
State of Odisha reported in 2023 (II) Orissa Law Reviews
246, Sima @ Simanchal Behera -Vrs.- State of Orissa
reported in (2024) 93 Orissa Criminal Reports 626 and
Rupa Jerai and others -Vrs.- State of Odisha reported in
(2025) 100 Orissa Criminal Reports 1068.
Mr. Aurovinda Mohanty, learned Additional Standing
Counsel, on the other hand, supported the impugned judgment
and argued that the extrajudicial confession of the appellant
Kathu Karua before the villagers forms a link in the chain of
circumstances sought to be established by the prosecution and
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 18 of 50
when it is corroborated by other material evidence like the
evidence of P.W.9, the same can be safely relied upon. It is
contended that the presence of appellant Kathu Karua at the
scene of occurrence in a naked condition where the deceased
was also lying dead in a naked condition, the seizure of his
nicker in which human blood of Group „A‟ was found which was
also found in the wearing apparels of the deceased, makes the
chain complete and therefore, the learned trial Court is quite
justified in relying upon the same in convicting the appellants
and therefore, the appeals should be dismissed.
Whether the deceased met with a homicidal death?:
8. Adverting to the contentions raised by the learned
counsel for the respective parties, let us first discuss the
evidence on record as to whether the prosecution has proved
that the deceased met with a homicidal death.
In this context, the evidence of the doctor (P.W.11)
is very relevant. P.W.11 was the Asst. Surgeon at Govt. Hospital,
Barbil, who conducted post mortem examination on 23.08.2002
over the dead body of the deceased and found the following
injuries:
"i. A body of average stout female soaked with
water, dried leaves found between hairs of her
head;
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 19 of 50
ii. Presence of rigor mortis in all four limbs,
dried blood clots in left ear and nostrils;
iii. Multiple abrasions of various sizes found on
the back, buttock and thigh;
iv. Multiple nail marks present in the both side
of neck;
v. Laceration found on left eye brow, left and
right upper eye limbs;
vi. Subaponeurotic blood clot present in the
frontal region;
vii. Fracture of left temporal and occipital bone
with extradural blood clot found in the region;
viii. Laceration of occipital lobe of brain."
P.W.11 opined that all the injuries described above
were ante mortem in nature. On dissection, P.W.11 found the
following injuries:
"i. Upper left alveolar margin on upper limbs
and upper left incisor was exposed and loose;
iii. There was swelling in abdomen, the liver
kidney and spleen were intact, uterus was
normal, ovaries are normal, hymen absent, loss
of rugosity, old perennial scar was present and
vagina admits two fingers, OS is slit like."
P.W.11 further opined that the cause of death was
due to head and brain injury. He further opined that such injuries
can be the cause of death of a person in ordinary course of
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 20 of 50
nature and time since death was 12 to 24 hours. He proved the
P.M. report vide Ext.17.
On the query made by the I.O., P.W.11 opined that
some of the injuries detected could be caused by a small boulder
or stone and the rest of the injuries could be possible by the
culprits during sexual assault on the deceased. The opinion of
P.W.11 has been marked as Ext.16/2.
Except putting a simple hypothetical question,
nothing has been elicited in the cross-examination of the doctor
(P.W.11) to discard his evidence on homicidal death of the
deceased. Similarly, the manner in which the deceased was
found in a half-naked condition at the spot and the injuries
sustained on her body also proved that the deceased was
subjected to rape.
The learned counsel for the appellants has also not
seriously challenged the findings of the doctor relating to the
homicidal death of the deceased or rape on her.
Therefore, on a conjoint reading of the inquest report
(Ext.2), post mortem report (Ext.17) and the evidence of the
doctor and above all other materials on record, we are of the
humble view that the findings of the learned trial Court regarding
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 21 of 50
the nature of death of the deceased to be homicidal and that she
was subjected to rape is based on clinching materials and
therefore, we concur with such findings.
Principles for appreciation of case based on circumstantial
evidence:
9. Admittedly, there is no direct evidence relating to the
commission of rape and murder of the deceased and the case is
based on circumstantial evidence.
The law relating to the basing conviction on
circumstantial evidence is clear in view of the five golden
principles laid down by the Hon‟ble Supreme Court in the case of
Sharad Birdhichand Sarda -Vrs.- State of Maharashtra
reported in A.I.R. 1984 S.C. 1622, wherein it has been laid
down that the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(i) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established;
(ii) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty;
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 22 of 50
(iii) the circumstances should be of a
conclusive nature and tendency;
(iv) they should exclude every possible
hypothesis except the one to be proved; and
(v) there must be a chain of evidence so
complete as not to leave any reasonable ground
for the conclusion consistent with the innocence
of the accused and must show that in all human
probability, the act must have been done by the
accused.
These five golden principles, according to the Hon‟ble
Supreme Court, constitute the panchsheel of the proof of a case
based on circumstantial evidence.
In the case of Kishore Chand -Vrs.- State of
Himachal Pradesh reported in (1991) 1 Supreme Court
Cases 286, the Hon‟ble Supreme Court held as follows:
"4. The question, therefore, is whether the
prosecution proved guilt of the appellant beyond
all reasonable doubt. In a case of circumstantial
evidence, all the circumstances from which the
conclusion of the guilt is to be drawn should be
fully and cogently established. All the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. The
proved circumstances should be of a conclusive
nature and definite tendency, unerringly pointing
towards the guilt of the accused. They should be
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 23 of 50
such as to exclude every hypothesis but the one
proposed to be proved. The circumstances must
be satisfactorily established and the proved
circumstances must bring home the offences to
the accused beyond all reasonable doubt. It is
not necessary that each circumstance by itself
be conclusive but cumulatively must form
unbroken chain of events leading to the proof of
the guilt of the accused. If those circumstances
or some of them can be explained by any of the
reasonable hypothesis then the accused must
have the benefit of that hypothesis."
In the case of Gambhir -Vrs.- State of
Maharashtra reported in (1982) 2 Supreme Court Cases
351, the Hon‟ble Supreme Court held as follows:
"9. It has already been pointed out that there is
no direct evidence of eye witness in this case
and the case is based only on circumstantial
evidence. The law regarding circumstantial
evidence is well-settled. When a case rests upon
the circumstantial evidence, such evidence must
satisfy three tests: (1) the circumstances from
which an inference of guilt is sought to be
drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused; (3) the circumstances, taken
cumulatively, should form a chain so complete
that there is no escape from the conclusion that
JCRLA No.58 of 2006
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CRLA No.450 of 2005 Page 24 of 50
within all human probability the crime was
committed by the accused and none else. The
circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of
the guilt of the accused. The circumstantial
evidence should not only be consistent with the
guilt of the accused but should be inconsistent
with his innocence."
In a case based on circumstantial evidence, there is
always a danger that conjecture or suspicion may take the place
of legal proof. The Court has to be watchful and ensure that
suspicion, howsoever strong, should not be allowed to take the
place of proof. A moral opinion howsoever strong or genuine and
suspicion, howsoever grave, cannot substitute a legal proof. A
very careful, cautious and meticulous appreciation of evidence is
necessary when the case is based on circumstantial evidence.
The prosecution must elevate its case from the realm of „may be
true‟ to the plane of „must be true‟.
The core principles which need to be adhered to by
the Court, while examining and appreciating circumstantial
evidence, have been strenuously discussed by the Hon‟ble
Supreme Court in the case of Devi Lal -Vrs.- State of
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CRLA No.450 of 2005 Page 25 of 50
Rajasthan reported in (2019) 19 Supreme Court Cases
447 in the following words:
"17......It has been propounded that while
scrutinising the circumstantial evidence, a Court
has to evaluate it to ensure the chain of events
is established clearly and completely to rule out
any reasonable likelihood of innocence of the
accused. The underlying principle is whether the
chain is complete or not, indeed it would depend
on the facts of each case emanating from the
evidence and there cannot be a straitjacket
formula which can be laid down for the purpose.
But the circumstances adduced when considered
collectively, it must lead only to the conclusion
that there cannot be a person other than the
accused who alone is the perpetrator of the
crime alleged and the circumstances must
establish the conclusive nature consistent only
with the hypothesis of the guilt of the accused."
In the case of Jaharlal Das -Vrs.- State of Orissa
reported in A.I.R. 1991 S.C. 1388, it is held as follows:
"The Court has to bear in mind a caution that in
cases depending largely upon circumstantial
evidence, there is always a danger that the
conjecture or suspicion may take the place of
legal proof and such suspicion however so
strong cannot be allowed to take the place of
proof. The Court has to be watchful and ensure
JCRLA No.58 of 2006
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CRLA No.450 of 2005 Page 26 of 50
that conjectures and suspicions do not take the
place of legal proof. The Court must satisfy itself
that the various circumstances in the chain of
evidence should be established clearly and that
the completed chain must be such as to rule out
a reasonable likelihood of the innocence of the
accused".
In case of Budhuram -Vrs.- State of Chhattisgarh
reported in (2012) 11 Supreme Court Cases 588, it is held
as follows:
"12. The law relating to proof of a criminal
charge by means of circumstantial evidence
would hardly require any reiteration, save and
except that the incriminating circumstances
against the accused, on being proved, must be
capable of pointing to only one direction and to
no other, namely, that it is the accused and
nobody else who had committed the crime. If
the proved circumstances are capable of
admitting any other conclusion inconsistent with
the guilt of the accused, the accused must have
the benefit of the same."
It is thus clear that even in the absence of direct
evidence, if various circumstances relied on by the prosecution
relating to the guilt of the accused are fully established beyond
all reasonable doubt and the chain of events are complete, the
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 27 of 50
Court is free to award conviction on the basis of such
circumstantial evidence.
Keeping in view the ratio laid down in the aforesaid
decisions of Supreme Court, the evidence on record needs to be
analysed to see how far the prosecution has proved the
circumstances as enumerated by the learned trial Court and
whether the circumstances taken together form a complete chain
to come to the irresistible conclusion that the appellant is the
perpetrator of the crime in question.
Assessment of evidence on record on each of the
circumstances:
10. Nine circumstances as mentioned above under the
heading of „findings of the trial Court‟ need to be analysed
systematically.
Circumstance Nos. (i) & (iii):
10.1. The first circumstance is that the deceased left her
home at about 4.00 p.m. on 22.08.2002 and went to Kamarjoda
to tie Rakhi on the hand of his God brother and the third
circumstance is that the deceased did not return to her home in
the said night.
In this context, the evidence of P.W.1 and P.W.4 is
very much relevant.
JCRLA No.58 of 2006
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CRLA No.450 of 2005 Page 28 of 50
P.W.1 has stated that the deceased was his sister-in
law (wife of brother in-law) and on the date of occurrence, in the
evening hours, his mother in-law who was residing with the
deceased told him that the deceased had left home at 4.00 p.m.
to tie Rakhi to Surendra Mahanta but she had not returned. He
further stated that at about 9.00 p.m., he left his home on a
bicycle to trace the deceased out and arrived at the house of
Surendra Mahanta, who told that the deceased had never come
to his house. He further stated that since it was late night, he
could not search for the deceased anymore and came back to his
house. On the following morning, P.W.5 informed him that the
dead body of a woman was lying at the side of the embankment
which was running in between village Banspani and Kamarjoda.
Upon hearing the same, P.W.1 proceeded to the spot and found
the dead body of a female lying half-naked with bleeding
injuries, which he identified to be that of the deceased. Nothing
has been brought out in the cross-examination to disbelieve his
evidence.
P.W.4 has also stated in a similar manner like her
husband (P.W.1) that the deceased was the wife of her younger
brother and further stated that her mother informed her in the
evening hours on the date of occurrence that the deceased did
JCRLA No.58 of 2006
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CRLA No.450 of 2005 Page 29 of 50
not return home for which P.W.1 went in search of her but could
not trace her out and subsequently, she came to know from
P.W.5 and P.W.8 that a female had been killed and her dead
body was lying by the side of the embankment. She further
stated that she along with others went to the spot and identified
the dead body of the deceased. There is nothing in her cross-
examination to disbelieve her version made in the examination
in-chief.
Thus, the prosecution has proved both the
circumstances nos.(i) & (iii).
Circumstance Nos.(ii) & (iv):
10.2. The second and fourth circumstances relate to the
embankment which was running in between Banspani and
Kamarjoda where the dead body of the deceased was found at
the time of occurrence and her dead body was discovered inside
the bushes at the same embankment.
P.Ws.1, 2, 4, 5, 6, 7, 8, 9 and the I.O. (P.W.10) have
clearly stated that the dead body of the deceased was lying
inside the putus bushes near the ridges below the embankment,
which was running from Banspani to Kamarjoda and the inquest
report (Ext.2) also corroborates to the same. This aspect seems
to have not been challenged in the cross-examination by the
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 30 of 50
learned defence counsel and even the learned counsel for the
appellants has also not challenged these two circumstances.
Thus, we are of the humble view that the prosecution
has successfully established the circumstance nos.(ii) and (iv).
Circumstance No.(v):
10.3. This circumstance indicates that the dead body of the
deceased was lying half-naked and there was no clothing up to
her waist and her wearing apparels were folded on the upper
parts of her waist and there were injuries on her face, eyes and
head.
P.W.1 has stated that when he came to the spot, he
found the dead body of a female was lying half-naked and there
were no clothes up to her waist. He identified the dead body to
be that of the deceased. He further stated to have detected
bleeding injury on her body and that the body was swollen.
P.W.4 has stated that when she came to the spot,
she found the dead body of the deceased was lying naked and
there were bleeding injuries on her eye lids and nostrils.
P.W.7 has stated that when she came to the spot,
she found the dead body of the deceased was lying naked and
there were no clothes up to her waist and she saw blood was
JCRLA No.58 of 2006
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CRLA No.450 of 2005 Page 31 of 50
oozing from her nostril and mouth and the eyes were damaged
and the deceased was turned to blind.
P.W.10, the I.O. has stated that when he arrived at
the spot, he found the dead body of the deceased was lying with
her wearing apparel folded on her chest and the entire body up
to her chest was naked.
Thus, we are of the humble view that the prosecution
has successfully established the circumstance no.(v).
Circumstance No.(vi):
10.4. The sixth circumstance speaks about death of the
deceased was within a few hours of her departure from her
house. In this respect, the evidence of the doctor (P.W.11) is
relevant.
The post mortem report (Ext.17) prepared by P.W.11
indicates that the death of the deceased occurred within twelve
to twenty four hours of the post mortem examination. P.Ws.1
and 4 have specifically stated that the deceased left her house at
about 4.00 p.m. on 22.08.2002. P.W.11, the doctor has
mentioned in Ext.17 that the post mortem examination was held
at 1.00 p.m. on 23.08.2002. Therefore, the death of the
deceased can be co-related within a few hours of her departure
from her house.
JCRLA No.58 of 2006
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CRLA No.450 of 2005 Page 32 of 50
Thus, we are of the humble view that the prosecution
has successfully established the circumstance no.(vi).
Circumstance No.(vii):
10.5. The seventh circumstance speaks about the dragging
mark present on the embankment near the spot where the dead
body of the deceased was lying.
In this respect, the testimony of I.O. (P.W.10) is
relevant, who stated that there was a dragging mark from the
river embankment up to the dead body and the putus bushes
were found to have been disturbed. He further stated that there
were blood stains at the spot and that he prepared the spot map
Ext.7. There is absolutely no cross-examination to negate the
above testimony.
Thus, we are of the humble view that the prosecution
has successfully established the circumstance no.(vii).
Circumstance No.(viii):
10.6. The eighth circumstance is that Bablu Patra (P.W.9)
was passing through the embankment on the date of occurrence
at about 4.00 to 5.00 p.m. and he heard the sound of shrinking
of „OON AAN‟ from the putus bushes below the embankment and
saw the appellant Kathu Karua standing naked inside the putus
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 33 of 50
bushes and he also saw the hair and blouse of a woman who was
lying inside the putus bushes and that appellant Kathu was
standing at the side of that female being naked. This is no doubt
a very vital circumstance.
P.W.9 in the examination in-chief has stated he did
not know anything about the occurrence and that on being
informed by one Ramachandra, he went to Joda police station
where the police asked him to sign on some paper and
accordingly, he signed on a paper. He was declared hostile by
the prosecution, however in the cross-examination by the
prosecution, he has stated that on the date of occurrence at
about 4.00 to 5.00 p.m., he went to the house of Jitu Patra of
Kamarjoda to return his mortgaged watch through the
embankment which was running from Banspani to Kamarjoda
and at the embankment, he saw the appellant Ramesh Apat so
also the co-accused Dadu @ Anil Patra. He further stated to have
heard sound of shrieks „OON AAN‟ which was coming below the
embankment. He further stated that appellant Kathu Karua was
standing inside the putus bushes and he was naked and that he
also saw the blouse and hair of a woman who was lying inside
the putus bushes and that the appellant Kathu Karua was
standing at the side of female who was lying inside putus
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 34 of 50
bushes. He further stated that appellant Kathu Karua threatened
him to keep mum and that he would murder him (P.W.9) if he
disclosed before anybody. In the cross-examination, he has
stated that the appellant Ramesh Apat was chasing goats and
co-accused Dadu Patra was coming for bath when he found them
on his way to Kamarjoda. He further stated that the village
people usually go to the side of the embankment to answer the
call of nature. He further stated that after seeing the appellant
Kathu Karua naked, he returned back. He further stated that he
had not stated before the I.O. that appellant Kathu Karua had
threatened him to commit his murder if he would disclose before
anybody. He has denied the suggestion that he had not seen any
woman lying inside the putus bushes and that the appellant
Kathu Karua was standing naked inside the putus bushes.
Law is well settled that the evidence of a
prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be treated as effaced
or washed off the record altogether but the same can be
accepted to the extent his version is found to be dependable on
careful scrutiny thereof. The portion of the evidence which is
consistent with the case of the prosecution or defence and are
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 35 of 50
admissible in law can be used by the prosecution or the defence.
It remains admissible in the trial and there is no legal bar to base
an order of conviction upon his testimony if corroborated by
other reliable evidence. It is for the Judge of fact to consider in
each case whether as a result of the cross-examination and
contradiction, the witness stands thoroughly discredited or can
still be believed in regard to a part of his testimony. If the Judge
finds that in the process, the credit of the witness has not been
completely shaken, he may, after reading and considering the
evidence of the said witness, as a whole, with due caution and
care, accept, in the light of other evidence on record, that part of
testimony which he found to be creditworthy and act upon it.
In the case in hand, even though at the first
instance, in the examination in-chief, P.W.9 stated that he did
not know anything about the occurrence but after being declared
hostile by the prosecution, it has been elicited by the prosecution
as to how he saw the appellant Kathu Karua standing inside the
putus bushes in a naked condition and he heard the sound of
„OON AAN‟ from the putus bushes and also saw the blouse and
hair of a woman, who was lying inside the putus bushes and the
appellant Kathu Karua was standing by the side of the female
who was lying there. Though the defence has cross-examined
JCRLA No.58 of 2006
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CRLA No.450 of 2005 Page 36 of 50
this witness, but the evidence of P.W.9 on the aforesaid score
has not been shaken. Specific suggestion has been given by the
learned defence counsel to P.W.9 that he had not seen the
woman lying inside the putus bushes and the appellant Kathu
standing naked there, but he has denied such suggestion. Of
course, the prosecution has elicited from the evidence of P.W.9
that appellant Kathu threatened him to keep mum and to murder
him in case he disclosed to anybody but in the cross-
examination, he has stated not to have stated before the I.O. in
that respect.
Though the learned Public Prosecutor has elicited
from P.W.9 that at the embankment, he had seen the appellant
Ramesh Apat and co-accused Dadu Patra, but in the cross-
examination by the defence, he has stated that the appellant
Ramesh Apat was chasing goats and co-accused Dadu Patra was
coming for bath when he found them on the way to Kamarjoda.
Therefore, his evidence regarding the presence of appellant
Ramesh Apat on the embankment is not sufficient to entangle
him in the crime, however, his evidence against appellant Kathu
Karua has not been completely shaken and therefore, his entire
evidence cannot be washed off the record altogether and it can
be accepted to the extent of his implication against appellant
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 37 of 50
Kathu Karua regarding his presence inside putus bushes in a
naked condition where a female (deceased) was lying and the
appellant was standing by her side.
Circumstance No.(ix):
10.7. The ninth circumstance relied upon by the learned
trial Court is the extra judicial confession of the appellants Kathu
Karua and Ramesh Apat.
The relevant witnesses on this aspect are P.Ws.4, 5,
7 & 8.
The learned defence counsel has placed reliance on
the following decisions:-
In the case of Astami Mahakud (supra), a
Coordinate Bench of this Court held as follows:-
"11. It is the settled position of law that the
Court should not presume from the beginning
that extra judicial confession is always suspect
and is a weak piece of evidence. The Court is
further required to examine the same with a
greater degree of care and caution and the
acceptance of the same would depend upon the
nature of circumstance, the time when
confession is made and the credibility of the
witnesses to speak about such confession and
finally whether the confession was voluntary
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 38 of 50
and truthful. The extra judicial confession in
order to form the foundation of a conviction, it
must be ensured that the same inspires
confidence and is corroborated by other
independent reliable evidence. The extra
judicial confession when is surrounded by
suspicions circumstances and suffers from
material discrepancies or inherent
improbabilities and does not appear to be
cogent as per the prosecution version, its
credibility becomes doubtful and it loses its
importance and in that event, it would be
difficult to base a conviction on such a
confession. It has always been said that the
extra judicial confession must be established to
be true and made voluntarily and the matter
then must be in a fit state of mind. The same
thus must successfully pass through the test of
credibility."
In the case of Sima @ Simanchal Behera (supra),
this Court held as follows:-
"8........ Law is well settled that extra judicial
confession is a weak piece of evidence and the
evidence relating to extra judicial confession
must satisfy the mind of the Court that it was
not only voluntary but comes from a person on
whom the accused can repose confidence and
that he is a truthful witness."
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 39 of 50
In the case of Rupa Jerai and others (supra), this
Court held as follows:-
"11.......The extrajudicial confession must be
established to be true and made voluntarily
and in a fit state of mind. The words of the
witnesses must be clear, unambiguous and
should clearly convey that the accused is the
perpetrator of the crime. The extrajudicial
confession can be accepted and can be the
basis of conviction, if it passes the test of
credibility. The extrajudicial confession should
inspire confidence and the Court should find
out whether there are other cogent
circumstances on record to support it. [Ref.:
Sk. Yusuf -Vrs.- State of W.B. : (2011) 11
Supreme Court Cases 754 and Pancho
-Vrs.- State of Haryana : (2011) 10
Supreme Court Cases 165].
Keeping in view the ratio laid down in the aforesaid
decisions, we have to examine the evidence of the witnesses
who deposed about the extrajudicial confession.
P.W.4 has stated that on query made by the
villagers, it came to the knowledge that appellant Kathu Karua
was the perpetrator of the crime and then on interrogation,
appellant Kathu Karua confessed his guilt of committing rape and
murder of the deceased along with appellant Ramesh Apat and
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 40 of 50
the co-accused. It has been confronted to this witness and
proved through the I.O. (P.W.10) that she had not stated before
him that Kathu confessed his guilt before the villagers in her
presence and also disclosed the involvement of other accused
persons in the occurrence. In view of such contradictions, since
such a statement has been made for the first time during trial, it
is very difficult to place reliance on the evidence of P.W.4 so far
as the extrajudicial confession made by the appellant Kathu
Karua.
P.W.5 has stated that appellant Kathu Karua was
apprehended by the villagers and they took him to Giri Babu
(P.W.3), who gave him two to three slaps and then appellant
Kathu confessed his guilt of committing rape and murder of the
deceased and further disclosed the names of two other co-
accused persons who were associated with him in the alleged
crime.
Learned counsel for the appellant argued that since
two to three slaps were given by P.W.3 and then, the confession
was made, it cannot be said to be voluntary in nature and
therefore, the evidence of P.W.5 regarding extrajudicial
confession made by appellant Kathu Karua should be discarded.
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 41 of 50
No other witness who was present at that time has
stated about any slaps being given by P.W.3. Even the appellant
Kathu Karua has also not stated that any slaps were given to him
by P.W.3. Of course, P.W.3 himself has not supported the
prosecution case and has been declared hostile. Even if it was
the spontaneous reaction of P.W.3 in giving slaps to the
appellant Kathu Karua after his role came to limelight, but there
is no evidence that there was any kind of inducement, threat or
promise made to the appellant for making such confession. We
are conscious of the fact that an extrajudicial confession, by its
very nature is rather a weak type of evidence and requires
appreciation with great deal of care and caution, but if such
confession is not surrounded by suspicious circumstances and
the credibility of the witness who is deposing about the
extrajudicial confession is not doubtful and there is no inherent
improbabilities in it, the Court can place reliance on it.
P.W.5 is an independent witness and he had no axe
to grind against the appellant Kathu Karua and his evidence
inspires confidence relating to the extrajudicial confession made
by the appellant Kathu Karua and therefore, we are of the view
that reliance can be placed on such confession.
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 42 of 50
P.W.7 has stated that she along with other villagers
went to the house of appellant Kathu Karua and to their
questions, appellant Kathu confessed that he along with
appellant Ramesh Apat and the co-accused had committed rape
and murder of the deceased and thereafter all the villagers
including she herself took the appellant Kathu Karua to Giri Babu
(P.W.3) and there also the appellant Kathu confessed his guilt. It
has been confronted to P.W.7 and proved through the I.O. that
P.W.7 had not stated before him about the confessional
statement of appellant Kathu Karua in her presence, however,
she has stated regarding such confession being made in
presence of Giri Babu (P.W.3).
P.W.8 has stated that when he along with some
villagers went to the house of appellant Kathu Karua, there the
appellant Kathu Karua confessed that he along with appellant
Ramesh Apat had committed rape and murder of the deceased
at the embankment side near putus bushes. There is no
contradiction so far as this statement is concerned. Nothing has
been elicited also in the cross-examination to disbelieve the
extrajudicial confession.
Therefore, even if the evidence of P.W.4 relating to
the extrajudicial confession made by Kathu Karua is discarded in
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 43 of 50
view of the reasons assigned, but the evidence of P.Ws.5, 7 & 8
relating to the extrajudicial confession can be safely acted upon.
However, not a single witness has stated about any extrajudicial
confession being made by the appellant Ramesh Apat.
It is pertinent to note that one blue half pant (nicker)
was seized from the appellant Kathu Karua by the I.O. (P.W.10)
suspecting to be stained with semen and blood as per seizure list
Ext.5 and it was sent for chemical examination and human blood
of „A‟ Group was found on it, which was also found in the printed
and check saree, coloured saya and black blouse of the deceased
and specific question has been put to the appellant Kathu Karua
in his accused statement as Question No.21 and he has admitted
the same. No explanation has been given by the appellant Kathu
Karua in this respect. Even though, the blood of the appellant
Kathu Karua has not been examined, but it is of no consequence
as he has not taken any plea that he had sustained any injury at
the time of occurrence and that it was his own blood which was
sticking to his nicker. Moreover, P.W.12, the Medical Officer, who
examined him on police requisition, has specifically stated that
there were only two abrasions, one on the back left side and
another on the middle of the back, which have been opined to be
simple in nature.
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 44 of 50
Therefore, the evidence on record clearly establishes
that the appellant Kathu Karua was found in a naked condition
inside putus bushes where the dead body of the deceased was
lying in a half-naked condition and that the deceased was found
to be raped and she died a homicidal death and that the
appellant made extrajudicial confession before the villagers and
that from his wearing apparel, human blood of Group A was
found, which was also found in the wearing apparels of the
deceased. We are of the humble view that these circumstances
have been cogently and firmly established and these
circumstances are of a definite tendency unerringly pointing
towards guilt of the appellant and that the circumstances, taken
cumulatively, form a chain so complete that there is no escape
from the conclusion that within all human probability, the crime
was committed by the appellant and none else.
Appellant Ramesh Apat:
11. So far as the complicity of the appellant Ramesh Apat
is concerned, except the extrajudicial confessional statement of
appellant Kathu Karua, there is no other evidence against him.
As we have already stated that though P.W.9 has stated the
presence of the appellant Ramesh Apat at the embankment, but
he has stated that the said appellant was chasing the goats. The
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 45 of 50
appellant was not seen near the deceased or inside the putus
bushes and there is also no evidence that he made any
extrajudicial confession before anyone.
Section 30 of the Evidence Act indicates that
confession of co-accused can be considered when he is jointly
tried with the other accused and he makes a statement
incriminating himself along with the other accused.
In the case of Hari Charan Kurmi -Vrs.- State of
Bihar reported in A.I.R. 1964 SC 1184, it has been held that
a confession cannot be treated as evidence which is substantive
evidence against a co-accused person. In dealing with a criminal
case where the prosecution relies upon the confession of one
accused person against another accused person, the proper
approach to adopt is to consider the other evidence against such
an accused person, and if the said evidence appears to be
satisfactory and the Court is inclined to hold that the said
evidence may sustain the charge framed against the said
accused person, the Court turns to the confession with a view to
assure itself that the conclusion which it is inclined to draw from
the other evidence is right. It is further held that the statements
contained in the confession of the co-accused persons stand on a
different footing. In cases, where such confessions are relied
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 46 of 50
upon by the prosecution against an accused, the Court cannot
begin with the examination of the said statements. The stage to
consider the said confessional statements arrives only after the
other evidence is considered and found to be satisfactory.
Thus, the confession of the co-accused cannot be
treated as substantive evidence in dealing with a case against
the accused and the Court must start with other evidence
adduced by the prosecution and after forming its opinion with
regard to the guilt and effect of the said evidence can turn to the
confession in order to get assurance to the conclusion of guilt, if
the judicial mind is about to reach on the said other evidence.
In view of the available materials on record, since
except the confessional statement of appellant Kathu Karua
before the witnesses, there is no other material against the
appellant Ramesh Apat, we are of the humble view that the
conviction of the appellant Ramesh Apat under sections
376(2)(g), 302/34 & 201/34 of I.P.C. cannot be sustained in the
eyes of law and the same is hereby set aside.
Sum Up:
12. In view of the foregoing discussions, we are of the
humble view that the learned trial Court has rightly found the
appellant Kathu Karua guilty. Even though there is no direct
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 47 of 50
evidence in the case, but from the circumstantial evidence on
record, it is clearly established that the appellant Kathu Karua
committed rape on the deceased and in order to screen himself
from the legal punishment for the offence of committing rape, he
killed the deceased in order to wipe out the evidence and
accordingly, we hold the appellant guilty under sections 376, 302
& 201 of I.P.C. Even if there are no independent charges against
the appellant Kathu Karua for such offences and the co-accused
persons have been acquitted, but since we have come to the
conclusion that the appellant Kathu Karua had committed the
crime individually, he can be held guilty under such offences
simpliciter in view of the ratio laid down by the Hon‟ble Supreme
Court in the case of Kishore Chand -Vrs- State of Himachal
Pradesh reported in (1991) 1 Supreme Court Cases 286.
The sentence imposed by the learned trial Court on the appellant
Kathu Karua needs no interference. Accordingly, JCRLA No.58 of
2006 being devoid of merits, stands dismissed.
CRLA No.450 of 2005 filed by appellant Ramesh Apat
is allowed and the impugned judgment and order of conviction of
the said appellant under sections 376(2)(g), 302/34 & 201/34 of
I.P.C. is hereby set aside and the appellant is acquitted of the
charges.
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 48 of 50
It appears that the appellant Kathu Karua was
directed to be released on bail by this Court vide order dated
11.02.2015 and he is now alive as per the written instruction
received from the Inspector in-charge of Joda police station
dated 25.10.2025 which we have reflected in our order dated
09.12.2025. The appellant Kathu Karua shall surrender before
the learned trial Court within a period of two weeks from today
to serve out the sentence awarded by the learned trial Court,
which is confirmed by us, failing which, the learned trial Court
shall take necessary coercive steps in accordance with law to
take the appellant into judicial custody to serve out the
remaining sentence.
So far as the appellant Ramesh Apat in CRLA No.450 of
2005 is concerned, he was directed to be released on bail by this
Court vide order dated 24.07.2014. Since, the CRLA has been
allowed, he is discharged from the liability of bail bonds. The
personal bonds and the surety bonds stand cancelled. He shall
remain at liberty unless he is required in any other case.
Before parting with the case, we would like to put on
record our appreciation to Mr. Debi Prasad Dhal, learned Senior
Advocate appearing for both the appellants for rendering his
valuable help and assistance towards arriving at the decision
JCRLA No.58 of 2006
&
CRLA No.450 of 2005 Page 49 of 50
above mentioned. This Court also appreciates the valuable help
and assistance provided by Mr. B.S. Dasparida, Advocate so also
Mr. Aurovinda Mohanty, learned Additional Standing Counsel.
The trial Court records with a copy of this judgment
be sent down to the learned trial Court forthwith for information.
..........................
S.K. Sahoo, J.
Chittaranjan Dash, J. I agree.
..................................
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 23rd December, 2025/Pravakar/RKM/Sipun
&
