Orissa High Court
Bishnu Patra vs State Of Odisha on 12 February, 2025
Author: S.K. Sahoo
Bench: S.K.Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.21 OF 2008
An appeal under section 374 Cr.P.C. from the judgment and
order dated 09.01.2008 passed by the Sessions Judge, Phulbani
in Sessions Trial No.69 of 2006.
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Bishnu Patra ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Ms. Tapaswini Sinha
Advocate
For Respondent: - Mr. Jateswar Nayak
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K.SAHOO
AND
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
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Date of Hearing and Judgment: 12.02.2025
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By the Bench: The appellant Bishnu Patra faced trial in the Court of
learned Sessions Judge, Phulbani in Sessions Trial No.69 of 2006
Signature Not Verified
for commission of offence punishable under section 302/34 of
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
the Indian Penal Code (hereinafter the „I.P.C.‟) on the accusation
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
JCRLA No.21 of 2008 Page 1 of 24
that he along with his son Sahadev, in furtherance of their
common intention, committed murder of Dhiren Mandal
(hereinafter „the deceased‟) on 5th August, 2005 at about 8.00
p.m. at Chachingia Nala of village Muniguda under Tumudibandh
police station in the district of Kandhamal.
The learned trial Court vide judgment and order
dated 09.01.2008 found the appellant guilty of the offence under
section 302 of the I.P.C. and sentenced him to undergo rigorous
imprisonment for life.
Prosecution Case:
2. The prosecution case, as per the first information
report (Ext.1) (hereinafter „F.I.R.‟) lodged by Banasingh Mandal
(P.W.4) before the Officer in-charge of Tumudibandh police
station on 06.08.2005, in short, is that on 05.08.2005 at about
8.00 p.m., the appellant along with his son Sahadev Patra and
their other family members had committed murder of the
deceased near Chachingia Nala by assaulting him with tangia. It
is further stated in the F.I.R. that he had received information
from Grama Rakhi, Tika Pradhan (P.W.3) about the incident, who
told him that it was the wife of the appellant who gave him
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
information regarding commission of murder of the deceased by
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
the appellant.
JCRLA No.21 of 2008 Page 2 of 24
On the basis of such F.I.R., P.W.10 Harihar Swain,
Officer in-charge of Tumudibandh police station registered the
same as Tumudibandh P.S. Case No.49 dated 06.08.2005 under
sections 302/34 of the I.P.C. against the appellant, his son
Sahadev Patra and other family members.
Upon registration of the F.I.R., P.W.10 took up
investigation of the case. During the course of investigation, he
examined the informant, deputed his staff to guard the dead
body and he himself reached at the spot on 06.08.2005 at about
9.50 a.m., prepared the spot map (Ext.12), held inquest over the
dead body of the deceased in presence of the witnesses,
prepared the inquest report (Ext.13) and then sent the dead
body for post mortem examination to the Sub-Divisional
Hospital. P.W.10 also seized the sample and blood stained earth
from the spot as per seizure list (Ext.4), examined other
witnesses and apprehended the appellant at 5.00 p.m. on
06.08.2005. On 07.08.2005 at about 7.30 p.m., the I.O.
(P.W.10) seized the wearing apparels of the deceased on being
produced by the escort party members, who had accompanied
the dead body for post mortem examination and at about 8.00
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
p.m., the appellant was arrested and while in police custody, he
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
volunteered to give recovery of the weapon of offence i.e. axe
JCRLA No.21 of 2008 Page 3 of 24
and accordingly, his statement was recorded vide Ext.2/2 and he
led the police party and the witnesses to Chachingia Nala and
gave recovery of the axe and produced the same before the I.O.
(P.W.10), which was seized as per seizure list Ext.3. The wearing
apparels of the appellant were also seized at the police station as
per seizure list vide Ext.7. P.W.10 sent the appellant to S.D.
Hospital for collection of his nail clippings and accordingly, the
same was collected and produced before the I.O., which were
also seized. The I.O. (P.W.10) received the post mortem
examination report and sent requisition to the S.D.M.O.,
Balliguda making a query relating to the possibility of the injury
sustained by the deceased with the weapon seized and received
the answer in affirmative. On 17.09.2005, the I.O. (P.W.10)
prayed before the S.D.J.M., Balliguda to forward the exhibits to
S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination. On
completion of investigation, he submitted charge sheet on
01.12.2005 under section 302/34 of the I.P.C. against the
appellant and son of the appellant, showing the latter as an
absconder.
Framing of charge:
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
3. After submission of charge sheet, the case was
Date: 13-Feb-2025 19:56:22
committed to the Court of Session after complying due committal
JCRLA No.21 of 2008 Page 4 of 24
formalities. The learned trial Court framed charge against the
appellant as aforesaid and since the appellant refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
trial procedure was resorted to prosecute him and establish his
guilt.
Prosecution Witnesses & Exhibits:
4. During course of the trial, in order to prove its case,
the prosecution examined as many as ten witnesses.
P.W.1 Tengera Majhi is an independent witness who
stated that while he was tending cattle on a piece of land
situated in his village, he saw the appellant and the deceased
were indulged in „pati tunda‟ and the appellant was holding an
axe. He further stated that he heard that the deceased was lying
dead near the spot where they were making „pati tunda‟ and he
had not gone to the spot to see the dead body and P.W.2 was in
his land at the time of the incident.
P.W.2 Bhaktaram Patra is also an independent
witness who stated that while he was working in field, he saw
the appellant and the deceased were together and from their
gesture, it appeared that they were talking. He further stated
Signature Not Verified
that he had no knowledge whether the appellant was armed with
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
any weapon and he heard on the next day that the deceased had
JCRLA No.21 of 2008 Page 5 of 24
died near the spot where he had seen the appellant and the
deceased together.
P.W.3 Tika Pradhan is the Grama Rakhi who stated
that on 05.08.2005 at about 8.00 p.m., the appellant‟s wife
came to his house and told that her husband had cut the
deceased. He further stated that on being asked, whether the
deceased was dead or alive, she told that the deceased might
have died in the meanwhile. He further stated that the wife the
appellant disclosed that her husband had told her that he cut the
deceased near Chachingia Nala and on the next day, he went to
P.W.3 and told about the incident and thereafter, they went to
the spot and saw that the dead body of the deceased was lying
with a head injury.
P.W.4 Banasing Mandal is the informant in the case.
He supported the prosecution case and stated to have heard
about the occurrence from P.W.3, visited the spot and then
accompanied P.W.3 to lodged the F.I.R. He proved the F.I.R. as
Ext.1.
P.W.5 Sagaram Paraseth and P.W.6 Amarsingh
Mandal have expressed their ignorance about the appellant
Signature Not Verified making any statement while he was in police custody. They
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
further stated that nothing has been seized in their presence and
JCRLA No.21 of 2008 Page 6 of 24
they have admitted to have put their signatures on some pieces
of paper. They were declared hostile by the prosecution.
P.W.7 Prakash Chandra Dehury was the constable
attached to Tumudibandh police station. He stated that on
08.08.2005, the I.O. (P.W.10) seized the wearing apparels of the
appellant i.e. one check full shirt (orange colour), check towel
and one blue check lungi at the police station on being produced
by the appellant as per seizure list vide Ext.7.
P.W.8 Pankaja Pradhan was the constable attached
to Tumudibandh police station. He stated that on 09.08.2005,
the I.O. (P.W.10) seized one sealed vial on being produced by
one constable G.R. Sahani and prepared the seizure list vide
Ext.8.
P.W.9 Dr. Smrutirekha Behera was the Assistant
Surgeon attached to S.D. Hospital, Balliguda, who conducted the
post mortem examination on the dead body of the deceased on
06.08.2005 on police requisition and proved his report vide
Ext.9. She further opined that the cause of the death of the
deceased was due to shock and haemorrhage due to injury to
brain and death might have occurred within 12 to 36 hours and it
Signature Not Verified is a case of suspected homicidal death.
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
JCRLA No.21 of 2008 Page 7 of 24
P.W.10 Harihar Swain was the Officer in-charge of
Tumudibandh police station, who is the Investigating Officer of
the case.
The prosecution exhibited sixteen documents. Ext.1
is F.I.R., Exts.2/2 is the statement of the appellant under section
27 of the Evidence Act, Exts.3 and 4 are seizure lists, Ext.5 is the
161 Cr.P.C. statement of P.W.5, Ext.6 is the 161 Cr.P.C.
statement of P.W.6, Ext.7 is the seizure list in respect of check
towel and blue lungi, Ext.8 is the seizure list in respect of one
sealed vial being produced by one constable, Ext.9 is the carbon
copy of original post mortem report, Ext.10 is the reply to the
query by P.W.9, Ext.11 is the formal F.I.R., Ext.12 is the spot
map, Ext.13 is the inquest report, Ext.14 is the forwarding report
in respect of the exhibits forwarded to S.F.S.L., Rasulgarh,
Ext.15 is the chemical examination report and Ext.16 is the
serological report.
The prosecution also proved six material objects.
M.O.I is the shirt, M.O.II is the lungi, M.O.III is the towel, M.O.IV
is the axe, M.O.V is the lungi and M.O.VI is the ganji.
Defence Plea:
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
5. The defence plea of the appellant is one of complete
Date: 13-Feb-2025 19:56:22
denial and it is stated that on suspicion, he has been falsely
JCRLA No.21 of 2008 Page 8 of 24
implicated in this case. The defence 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 came to hold that there
is no direct evidence in the case and the case entirely depends
upon circumstantial evidence. Taking into account the last seen
of the deceased in the company of the appellant as deposed to
by P.Ws.1 and 2, the information given by the wife of the
appellant to the Grama Rakhi that the appellant had killed the
deceased near Chachingia Nala as deposed to by P.W.3, the dead
body of the deceased was found lying near Chachingia Nala with
head injury, leading to discovery of the weapon of offence (axe)
at the instance of the appellant from inside a bush as deposed to
by the I.O. (P.W.10), the medical opinion about the possibility of
injury sustained by the deceased with such weapon so also
possible time of death of deceased with the time of incident as
deposed to by P.W.9, the learned trial Court has been pleased to
hold that the witnesses who have deposed to in support of the
prosecution case are all reliable and even though there is no
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
direct evidence, the circumstantial evidence available are
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
JCRLA No.21 of 2008 Page 9 of 24
sufficient to hold the appellant guilty under section 302 of the
I.P.C.
Contentions of the Parties:
7. Ms. Tapaswini Sinha, learned counsel appearing for
the appellant contended that the learned trial Court has not kept
in mind the well settled principle of appreciation of a case based
on circumstantial evidence. She argued that the last seen
evidence which has been adduced by P.Ws.1 and 2 are
discrepant in nature and therefore, the learned trial Court should
not have placed reliance on these testimonies. She further
argued that though it is the prosecution case that the wife of the
appellant came to P.W.3 and told him that the appellant
committed murder of the deceased but in absence of the
examination of the appellant‟s wife during trial, the evidence of
P.W.3, who stated to have heard about the incident from her
becomes hearsay evidence and it is inadmissible. Learned
counsel further argued that the information given by the
appellant‟s wife to P.W.3 which in turn was disclosed before the
informant (P.W.4) is also highly suspicious inasmuch in the
F.I.R., it is not mentioned that only appellant is the author of the
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
crime rather it is mentioned in the F.I.R. that the appellant, his
Date: 13-Feb-2025 19:56:22
son and his family members have committed murder of the
JCRLA No.21 of 2008 Page 10 of 24
deceased by assaulting him with tangia. Learned counsel further
argued that though at the instance of the appellant, the weapon
of offence i.e. axe is stated to have been seized as deposed by
the I.O. (P.W.10), but the independent witnesses to such seizure
i.e. P.Ws.5 and 6 have not supported the prosecution case and
moreover, the weapon of offence has not been shown to P.W.1
to be identified in Court. Learned counsel further argued that the
evidence is lacking that the dead body of the deceased was
found at the place where the appellant and the deceased were
last seen and therefore, on the basis of the available materials
on record, it cannot be said that the chain of circumstances is so
complete as to unerringly point towards the guilt of the appellant
and therefore, it is a fit case where the benefit of doubt should
be extended in favour of the appellant.
Mr. Jateswar Nayak, learned Additional Government
Advocate, on the other hand, supported the impugned judgment
and argued that the learned trial Court has rightly placed
reliance on the evidence of P.Ws.1 and 2 who have seen the
appellant and the deceased indulged in quarrel and the appellant
was armed with an axe and the axe was seized at the instance of
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
the appellant as deposed by the I.O. (P.W.10) and it was sent for
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
chemical examination. The chemical examination report indicates
JCRLA No.21 of 2008 Page 11 of 24
that human blood was detected on it. Learned counsel further
argued that the circumstantial evidence which are appearing on
record against the appellant is trustworthy and it has been
rightly relied upon by the learned trial Court and the doctor
(P.W.9), who has conducted the post mortem examination has
noticed the injury on the left side of parietal region and opined
that the cause of death to be homicidal in nature and she has
also answered to the query made by the I.O. (P.W.10) that the
injury found on the head of the deceased was possible by axe
(M.O.IV) which was produced before her after its seizure and
therefore, the chain is complete and the appellant has been
rightly found guilty under section 302 of the I.P.C.
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 examine the
evidence available on record as to how far the prosecution has
succeeded in establishing that the deceased met with a homicidal
death.
Apart from the inquest report (Ext.13), the evidence
of the doctor (P.W.9) is very much relevant on this score. P.W.9,
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
who conducted the post mortem examination on 06.08.2005 has
Date: 13-Feb-2025 19:56:22
noticed the following external injuries:
JCRLA No.21 of 2008 Page 12 of 24
"(i) Laceration of 6 x 3 x 8 cm size over left side
of parietal region;
(ii) Fracture of skull over left side. Parietal bone
with a chip of bone of size 5 x 3 cm separated
from the skull just underneath injury no.(i);
(iii) Brain matter had emerged through the
wound no.(ii)."
P.W.9 further stated that the cause of death was due
to hemorrhage and shock and injury to brain and the death
might have occurred within 12 to 36 hours and it is a case of
suspected homicidal death. The post mortem report was marked
as Ext.9 with objection since the original was not produced. It
further appears from the evidence of P.W.9 that on 15.09.2005,
the I.O.(P.W.10) made a query regarding possibility of the injury
found on the head of the deceased by the weapon i.e. axe
(tangia), which was produced before her and on examination of
the axe, P.W.9 opined in affirmative and the query report has
been proved as Ext.10. Nothing has been brought out in the
cross-examination to disbelieve the evidence of the doctor
(P.W.9). Ms. Sinha, learned counsel for the appellant has also
not challenged the evidence of P.W.9 and her opinion regarding
Signature Not Verified
homicidal death of the deceased.
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
JCRLA No.21 of 2008 Page 13 of 24
After going through the evidence on record, more
particularly, the inquest report (Ext.13), the post mortem report
findings, the evidence of the doctor (P.W.9), we are of the
humble view that the learned trial Court has rightly come to the
conclusion that the deceased met with homicidal death.
Principles relating to appreciation of the case based on
circumstantial evidence:
9. Admittedly, the case is based on circumstantial
evidence. In the case of Sharad Birdhichand Sarda -Vrs.-
State of Maharashtra reported in (1984) 4 Supreme Court
Cases 116, the principles relating to appreciation of the case
based on circumstantial evidence has been discussed and the
five golden principles or panchsheel has been laid down which
are as follows:
"1. The circumstances from which the
conclusion of guilt is to be drawn should be fully
established;
2. 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;
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
3. The circumstances should be of a conclusive
Date: 13-Feb-2025 19:56:22
nature and tendency;
JCRLA No.21 of 2008 Page 14 of 24
4. They should exclude every possible
hypothesis except the one to be proved;
5. There must be a chain of circumstances 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."
Last seen theory:
10. Keeping in view the principles laid down in the case
of Sharad Birdhichand Sarda (supra), let us analyze the
available circumstances on record.
In the case in hand, the first circumstance relied
upon by the learned trial Court is the last seen of the deceased
in the company of the appellant, which is deposed to by two
witnesses i.e. P.W.1 and P.W.2.
P.W.1 has stated that on the date of occurrence, he
was tending cattle on a piece of land in his village and it was
evening hours and he saw the appellant and the deceased were
indulged in quarreling, however, the son of the appellant was not
present there, but the appellant was holding an axe. He further
stated that the appellant had got his land where the aforesaid
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
incident occurred and on the next day, he heard that the
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
deceased was lying dead near the spot where they were
JCRLA No.21 of 2008 Page 15 of 24
quarreling. However, he has stated that he had not gone to the
spot to see the dead body. He further stated that P.W.2 was in
his land at the time of incident. In his cross-examination, he has
stated that he was about 400 feet away from the deceased and
he could not say as to who was holding what weapon and why
they were quarreling.
P.W.2, on the other hand though stated that the
appellant and the deceased were together but he has not stated
that there was any quarrel between them rather he stated that
from their gesture, it appeared that they were talking. He has
also not stated that the appellant was armed with any weapon.
He further stated that on the next day, he heard about the death
of the deceased near the spot but he had not gone there to see
the dead body.
The dead body of the deceased was found in the land
of one Baman Patra as per the spot visit report prepared by the
I.O. (P.W.10) where the inquest was also held. However, the
evidence of P.Ws.1 and 2 is completely silent that the appellant
and the deceased were found together in the land of Baman
Patra. Since there are discrepancies between the evidence of
Signature Not Verified P.Ws.1 and 2 inasmuch as the evidence of P.W.1 that both the
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
appellant and the deceased were indulged in quarreling and that
JCRLA No.21 of 2008 Page 16 of 24
the appellant was armed with an axe is not getting corroboration
from the evidence of P.W.2 and they had not shown the spot of
quarrel to the I.O. (P.W.10), therefore, it is very difficult to
accept the evidence of P.W.1 and P.W.2 and to utilize the same
as last seen of the deceased in the company of the appellant
particularly when the dead body was discovered lying on the
land of Baman Patra on the next day morning.
The last seen theory is a legal principle that is based
on the idea that if someone is the last person seen with the
deceased before a crime being committed, he is likely to be
responsible for the crime unless he provides a satisfactory
explanation in view of section 106 of the Evidence Act (section
109 of Bharatiya Sakshya Adhiniyam, 2023). Doctrine of last
seen, if proved, shifts the burden of proof onto the accused,
placing on him the onus to explain how the incident occurred and
what happened to the deceased who was last seen with him. If
there is a failure on the part of the accused to furnish any
explanation in this regard, or furnishing false explanation, it
would give rise to a strong presumption against him and in
favour of his guilt and would provide an additional link in the
Signature Not Verified chain of circumstances. Last seen theory comes into play where
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
the time gap between the point of time when the accused and
JCRLA No.21 of 2008 Page 17 of 24
the deceased were seen alive together and the discovery of the
dead body is quite small and the possibility of any person other
than the accused being the author of the crime becomes
impossible. In the case of Satpal -Vrs.- State of Haryana
reported in (2018) 6 Supreme Court Cases 610, it has been
held that evidence of last seen theory is a weak kind of evidence
by itself to convict upon the same singularly. In the case of
Jaswant Gir -Vrs.- State of Punjab reported in (2005) 12
Supreme Court Cases 438, the Hon‟ble Supreme Court held
that in absence of any other links in the chain of circumstantial
evidence, the accused cannot be convicted solely on the basis of
"last seen together", even if version of the prosecution witness in
this regard is believed. In the case of Arjun Marik and Ors.
-Vrs.- State of Bihar reported in 1994 Supp (2) Supreme
Court Cases 372, it is observed that the only circumstance of
last seen will not complete the chain of circumstances to record
the finding that it is consistent only with the hypothesis of the
guilt of the accused, and therefore, no conviction on that basis
alone can be founded. In the case of Dinesh Kumar -Vrs.- The
State of Haryana A.I.R. 2023 S.C. 2795, it is held that the
Signature Not Verified circumstance of last seen together does not by itself lead to an
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
irrevocable conclusion that it is the accused who had committed
JCRLA No.21 of 2008 Page 18 of 24
the crime. The prosecution must come out with something more
to establish this connectivity with the accused and the crime
committed.
In absence of such evidence, we are of the humble
that the learned trial erred in utilizing the evidence of P.Ws.1 and
2 as the last seen of the appellant with the deceased.
Evidence of P.W.3 and P.W.4 regarding statement of wife
of the appellant :
11. The evidence of P.W.3 is that on 05.08.2005 at about
8.00 p.m. while he was in his house, the wife of the appellant
came to his house and told him that her husband had cut the
deceased and when he asked the wife of the appellant as to
whether the deceased was dead or alive, she told that the
deceased might have died in the meantime. P.W.3 in turn
intimated the same to P.W.4. Thereafter P.W.4 along with P.W.3
went to lodge the F.I.R. Most peculiarly, in the F.I.R., there is
nothing that the wife of the appellant had given information
relating to the complicity of the appellant alone in the murder of
the deceased rather it is mentioned that the appellant with his
son Sahadev and his family members have killed the deceased
Signature Not Verified with Tangia.
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
JCRLA No.21 of 2008 Page 19 of 24
In view of such recital in the F.I.R., which has lodged
by P.W.4, the so-called information stated to have been given by
the wife of the appellant becomes a doubtful feature. Moreover,
the wife of the appellant has not been examined. The I.O. has
stated that he had not interrogated the wife of the appellant and
not cited her as a witness in the charge sheet. Therefore, the
evidence of P.W.3 becomes hearsay and it is not admissible in
view of section 60 of the Evidence Act.
Leading to discovery of weapon of offence:
12. The weapon of offence was seized as per the
disclosure statement made by the appellant, which is deposed to
by the I.O. (P.W.10). He has stated that after arresting the
appellant, while he was in custody, he stated that the weapon of
offence i.e. axe had been kept concealed at a place and he could
show the place if he would be taken to the place of concealment.
Accordingly, the appellant led the I.O. (P.W.10) and the
witnesses to Chachingia Nala and then to a bush where from he
brought one axe. P.W.10 proved the statement of the appellant
recorded under section 27 of the Evidence Act, which has been
marked as Ext.2/2 and after recovery of the axe, the seizure list
Signature Not Verified was prepared vide Ext.3.
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
JCRLA No.21 of 2008 Page 20 of 24
The I.O. has stated that the place of recovery of axe
is an open field and accessible to all. The evidence of I.O. so also
the relevant seizure list indicates that the appellant brought out
the axe from the bush which was the place of concealment. In
the case of State of Himachal Pradesh -Vrs.- Jeet Singh
reported in (1999) 4 Supreme Court Cases 370, it is held
that there is nothing in section 27 of the Evidence Act, which
renders the statement of the accused inadmissible if recovery of
the articles was made from any place, which is "open or
accessible to others". Any object can be concealed in places
which are open or accessible to others. The crucial question is
not whether the place was accessible to others or not, but
whether it was ordinarily visible to others. If it is not, then it is
immaterial that the concealed place is accessible to others.
P.Ws.5 and 6 are the witnesses to such seizure but
they have not supported the prosecution case. P.W.5 has stated
that the police insisted him to sign on papers even without
knowing why he would sign the same and accordingly, he signed.
P.W.6 has also stated that police took his signatures on white
and blank papers.
Signature Not Verified The I.O. has seized the axe on 08.08.2005 as per
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
seizure list Ext.3, it was produced before the doctor (P.W.9) on
JCRLA No.21 of 2008 Page 21 of 24
15.09.2005 and forwarded to the S.F.S.L., Rasulgarh for
chemical examination on 17.09.2005. The I.O. stated that after
seizure of axe, it was wrapped with a paper, but the same is not
mentioned in the case diary or in the seizure list and it was kept
in police station Malkhana till it was sent to S.F.S.L., Rasulgarh.
No Malkhana register has been proved in the case. There is not
only delay in sending the seized axe to S.F.S.L., but also
clinching evidence is lacking regarding its safe custody.
Even if the weapon of offence i.e. axe was examined
by the doctor (P.W.9), who has given his opinion that the injury
sustained by the deceased was possible by such weapon and
human blood was also found in the axe as per the chemical
examination report and even if it is held that such weapon, which
could have been used for the commission of a crime, was
discovered on the information given by the appellant, in absence
of any other circumstance bring proved, these circumstances are
not sufficient to hold the appellant as the murderer.
Absence of Motive:
13. The prosecution has failed to prove any motive on
the part of the appellant to commit the crime. In a case of direct
Signature Not Verified evidence, motive would not be relevant, however, in a case of
Digitally Signed
Signed by: SIPUN BEHERA
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
circumstantial evidence, motive plays an important link to
JCRLA No.21 of 2008 Page 22 of 24
complete the chain of circumstances. Absence of motive in a
case depending on circumstantial evidence is a factor that
weighs in favour of the accused. However, it is to be kept in
mind that the motive is a thing which is primarily known to the
accused himself and it is not possible for the prosecution to
explain what actually promoted or excited the accused to commit
the particular crime.
Conclusion:
14. In view of the foregoing discussions, we are of the
view that there is no clinching evidence against the appellant
relating to his involvement in the crime in question. The
circumstances which are appearing on record do not form a
complete chain so as to come to a conclusion with certainty that
the appellant is the author of the crime. The findings of the
learned trial Court against the appellant are not justified. Though
the case is one of very grave suspicion, but suspicion, however,
strong cannot be allowed to take place of proof and therefore,
the Court has to be watchful and ensure that conjectures and
suspicions do not take place of legal proof. There is no sufficient
legal evidence on which this Court can come to the conclusion
Signature Not Verified
Digitally Signed
Signed by: SIPUN BEHERA
that the appellant must have been the murderer.
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 13-Feb-2025 19:56:22
JCRLA No.21 of 2008 Page 23 of 24
Accordingly, the impugned judgment and order of
conviction of the appellant under section 302 of the I.P.C. is not
sustainable in the eye of law and the same is hereby set aside.
The appellant is acquitted of the charge.
The appellant, who is on bail by this Court vide order
dated 18.09.2014 passed in Misc. Case No.3 of 2009, is hereby
discharged from liability of the bail bonds and the surety bonds
also stand cancelled.
In the result, the JCRLA is allowed. Trial Court
records with a copy of this judgment be sent down to the
concerned Court forthwith for information.
Before parting with the judgment, we put on record
our appreciation to Ms. Tapaswini Sinha, learned counsel for the
appellant for rendering her valuable assistance in arriving at the
above decision. We also appreciate Mr. Jateswar Nayak, learned
Additional Government Advocate for ably and meticulously
presenting the case on behalf of the State.
.................................
S.K. Sahoo, J.
Savitri Ratho, J.
Orissa High Court, Cuttack
The 12th February 2025 /Sipun
