Orissa High Court
Unknown vs Anil Chhotray & Ors on 14 February, 2025
Author: Chittaranjan Dash
Bench: B. P. Routray, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No. 119 of 2015
(Arising out of the Judgment and Order of acquittal dated 22nd of
May, 2015 passed by Shri Ishan Kumar Das, Addl. Sessions
Judge, Bhubaneswar in Criminal Trial No. 1/42 of 2012, for the
offence under section 302/120-B/109/34 of the Indian Penal Code,
1860)
State of Odisha .... Appellant
Mr. Gautam Tripathy, AGA
-versus-
Anil Chhotray & Ors. .... Respondent
Mr. Samvit Mohanty, Advocate
CORAM:
THE HON'BLE MR. JUSTICE B. P. ROUTRAY
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 14.02.2025
Chittaranjan Dash, J.
1. The Petitioner, the State of Odisha, has filed this application
seeking leave to appeal challenging the judgment and order of
acquittal dated 22.05.2015, passed by the learned 2nd Additional
Sessions Judge, Bhubaneswar, in Criminal Trial No. 1/42 of 2012
arising out of G.R. No. 1301/2015 and Nayapalli P.S. Case No.
115/2005, wherein, the learned trial Court acquitted all 16 accused
persons (Respondents) of offences under Sections 302/120-
B/109/34 of the Indian Penal Code, 1860, (hereinafter, in short,
called "IPC"), and Sections 25/27 of the Arms Act, 1959.
2. The CRLA filed by the present Respondents, seeking a
different prayer, has been attached with this CRLLP along with the
Lower Court Records and the Paperbook, for reference. The
availability of the LCR and Paperbook ensured availability of all
relevant documents, including the trial Court judgment, witness
depositions, scientific reports, and other materials taken in evidence
by the trial Court, were before this Court for appreciation of the
case and hear the matter on merit upon the admission of this
petition
3. The prosecution case, in brief, is that the Informant, Prakash
Chandra Das (P.W.24), the elder brother of Subash Chandra Das @
Rubu, lodged a written report before the IIC, Nayapalli Police
Station, Bhubaneswar, on 18.04.2005 at about 1:15 p.m., stating
that his younger brother, Subash and his associate, Dhiren Kumar
Sethi, have been murdered near Jaleswar Temple Road,
Bhubaneswar. Earlier that day, around 11:30 a.m., the deceased and
Dhiren had gone to Ruchika Market and then proceeded to meet
one Anil Kumar Mahalik, a Special Class Contractor, to collect
documents for photocopying near Jaleswar Temple. Shortly
thereafter, the Informant received a telephonic call informing him
that his brother has been shot dead. Upon reaching the spot, he
found that Dhiren's body is lying in front of Jaleswar Temple and
Subash's body is near the office of the Executive Engineer, Prachi
Division, both surrounded by a pool of blood. Witnesses at the
scene informed him that nine unidentified assailants on three
motorcycles arrived at the location, abused the victims, and opened
fire at them as they attempted to escape. The deceased sustained
multiple gunshot wounds, including injuries to the chest and
forehead. On receipt of the FIR, the IIC registered Nayapalli P.S.
Case No. 115/2005 under Sections 302/34 IPC and Section 25 of
the Arms Act and commenced an investigation.
4. In course of the investigation, the I.O. seized two empty
cartridges, a bullet, a mobile phone, and cash from the crime scene.
He arrested three Accused-Respondents, including Guna @ Bablu
Lenka and Dhadu @ Artatrana Pradhan, and based on their alleged
confessional statements, firearms, ammunition, and a motorcycle
were recovered. The case was subsequently transferred to the Crime
Branch, which, after further investigation, filed a charge sheet
against 19 accused persons, including contractors accused of
conspiring to eliminate the deceased due to a tender-fixing rivalry.
Out of these, two accused could not be apprehended, and one had
expired, leading to the trial of 16 accused person.
5. The case of the defence is one of complete denial and false
accusations.
6. To bring home the charge, the prosecution examined 86
witnesses in all. The defence, on the other hand, examined none.
7. The learned trial Court having believed the evidence of the
prosecution witnesses, found the prosecution to have proved its case
beyond all reasonable doubt and held the Appellant guilty and
convicted him awarding sentence as described above.
8. Mr. Gautam Tripathy, learned Additional Government
Advocate, submitted that the learned trial Court erred in
disregarding the overwhelming evidence on record, including the
testimony of official witnesses, ballistic reports, and post-mortem
findings. He contends that despite witnesses turning hostile, the trial
Court failed to appreciate that prosecution evidence is not to be
discarded in its entirety merely because some witnesses resile from
their previous statements. It is a settled principle of law that the
testimony of official witnesses, including police officers, cannot be
disregarded solely due to the absence of independent corroboration,
particularly in cases where independent witnesses are reluctant to
depose out of fear or influence exerted by the Accused-
Respondents. He further submits that the Scientific Officer's report
vide Ext.24 & Ext.22 confirms that the bullets extracted from the
body of deceased Dhiren Kumar Sethi were fired from a country-
made revolver seized from one of the Accused-Respondents, Guna
Lenka, yet the trial Court failed to attach due weight to this
conclusive evidence. Mr. Tripathy further contends that the
confessional statements of Accused-Respondents Guna Lenka and
Dhadu @ Artatrana Pradhan, recorded under Section 27 of the
Evidence Act, 1872, led to the recovery of firearms and other
incriminating materials, establishing their direct involvement in the
crime. Similarly, the identification of Accused-Respondents in the
Test Identification Parade (TIP) was disregarded solely on the
ground that one of the witnesses later claimed coercion, despite
there being no material proof of such coercion. The Court failed to
recognise that identification in TIPs conducted by a Judicial
Magistrate carries significant evidentiary value. He further contends
the conspiracy angle, whereby certain contractors, facing losses due
to the deceased's interference in tender-related matters, engaged the
other accused to execute the murders. The motive of the crime was
well established through the Section 164 Cr.P.C. statements of
various witnesses, which indicated that the deceased had expressed
apprehension regarding threats to their lives from the Accused-
Respondents.
Moreover, the trial Court erroneously held that the
prosecution under the Arms Act was vitiated due to an alleged
defect in sanction. A sanction order cannot be invalidated merely on
the ground that all seized arms were not physically placed before
the authority granting sanction, particularly when other supporting
documents and reports were duly considered. Mr. Tripathy finally
submits that the acquittal of the Accused-Respondents has resulted
in a gross miscarriage of justice, particularly in a case involving a
pre-planned and cold-blooded murder in a public place, executed in
furtherance of a criminal conspiracy. The failure of the trial Court
to convict the accused despite the weight of evidence on record
undermines public confidence in the justice system. Therefore, the
State prays for leave to appeal against the impugned judgment, and
upon grant of leave, seeks the setting aside of the acquittal and
conviction of the Accused-Respondents in accordance with law.
9. Mr. Samvit Mohanty, learned counsel for the Respondent,
on the other hand, submits that the trial Court has rightly acquitted
the Respondents, as the prosecution failed to prove their guilt
beyond a reasonable doubt since its very inception. The case against
the respondents is based on circumstantial evidence, unreliable
witness testimonies, and inadmissible confessional statements. Mr.
Mohanty asserts that several key witnesses, including family
members of the deceased, turned hostile, and the Test Identification
Parade (TIP) was compromised, making the prosecution's version
highly questionable. He further states that the ballistic report did not
conclusively link the bullets recovered from the deceased to the
firearms allegedly seized from the respondents, further weakening
the prosecution's case. Moreover, the alleged motive of tender-
related rivalry was not supported by credible evidence, as multiple
witnesses denied knowledge of any prior threats or enmity between
the deceased and the respondents. Mr. Mohanty finally submits that
the learned trial Court has carefully all evidence and discussed it's
findings in length and has found that the prosecution failed to
establish a clear and unbroken chain of circumstances pointing to
the guilt of the respondents. Since an acquittal strengthens the
presumption of innocence, this Petition is liable to be dismissed.
10. Having regard to the arguments advanced by the learned
counsel for the respective parties, it is incumbent to deal with the
testimonies of the relevant witnesses for better appreciation of the
case.
P.W.2, the father of deceased Dhiren Kumar Sethi, testified
that his son was a small-time contractor but stated that he had no
knowledge regarding the circumstances of his death. He did not
provide any firsthand account of the incident, nor did he implicate
any of the Accused-Respondents in his testimony. During cross-
examination, he maintained that he had no idea about any threats to
his son's life prior to the murder. His testimony contradicts the
prosecution's theory that the deceased had expressed apprehensions
about being targeted by tender mafias.
P.W.4, an eyewitness present near the scene of the crime,
did not corroborate the prosecution's version of events. While he
acknowledged hearing gunshots and seeing two individuals collapse
near Jaleswar Temple, he could not confirm who fired the shots or
how the attack unfolded. During cross-examination, he admitted
that he did not actually see the assailants and that the police
obtained his signature on certain documents without explaining
their contents.
P.W.9, an Executive Engineer, testified that during the
relevant period, the e-tender system had been implemented, which
significantly reduced human interference in the tender process. His
statement contradicted the prosecution's theory that the deceased
were killed due to disputes over tender-fixing, as it cast doubt on
whether such rivalries were still relevant or capable of leading to a
conspiracy to murder. He did not provide any evidence linking the
accused to the crime.
P.W.11, the uncle of deceased Subash Chandra Das, failed
to support the prosecution's case. He denied having any knowledge
about the murder or the involvement of the accused. When
confronted with his previous statement recorded under Section 161
CrPC, he refused to acknowledge its contents.
P.W.12, an alleged eyewitness, testified that he heard
gunshots but could not identify the assailants. His testimony lacked
crucial details about how the attack unfolded and failed to establish
the presence of any of the Accused-Respondents at the scene of the
crime.
P.W.13, the brother of deceased Dhiren Kumar Sethi, was
also declared hostile. While he initially stated that he rushed to the
scene after hearing about the murder, he later denied any prior
knowledge of threats to his brother's life. During cross-
examination, he stated that he did not witness the crime and could
not identify any of the Accused-Respondents. His testimony
contradicts the prosecution's claim that Dhiren was under threat
from the Accused-Respondents.
P.W.15, the Secretary of Saraswati Sishu Mandir at
Baramunda, stated that he heard gunshots but had no knowledge of
who fired them. He further alleged that the police obtained his
signature on blank papers without informing him about the
contents. During cross-examination, he denied seeing any of the
Accused-Respondents at the crime scene, making his testimony
unreliable for proving the prosecution's case.
P.W.16, a contractor who employed deceased Subash
Chandra Das, admitted that on the day of the incident, he had sent
Subash to Ruchika Market for photocopying certain documents.
However, he did not corroborate the claim that Subash and Dhiren
were being threatened by the Accused-Respondents. His failure to
confirm any previous threats or business rivalries undermined the
prosecution's motive theory.
P.W.18, another alleged eyewitness, stated that he heard
gunshots and saw people running, but he failed to provide any
identifying details regarding the assailants. His testimony did not
contribute to proving the direct involvement of the accused in the
murder.
P.W.19 was a witness to the Test Identification Parade
(TIP). However, during cross-examination, he admitted that the
police had shown him photographs of the accused before the TIP
and instructed him to identify them. This seriously undermined the
credibility of the TIP process, as it suggested police influence rather
than an independent identification.
P.W.23, a Member of the Legislative Assembly (MLA) and
paternal uncle of deceased Subash Chandra Das, was expected to
support the prosecution's case. However, he denied knowledge of
any threats to the deceased and failed to identify any accused
person as being involved in the murder. His testimony contradicted
the prosecution's claim that Subash had openly discussed threats to
his life from the Accused-Respondents.
P.W.24, Prakash Chandra Das, the informant and elder
brother of deceased Subash Chandra Das, was expected to be a key
witness for the prosecution. However, he completely disowned the
contents of the FIR, stating that he did not know who prepared it
and only signed it at the police station without reading it. He further
testified that his brother's death was an accident and denied
knowledge of any conspiracy or involvement of the accused. His
testimony severely damaged the prosecution's case, as it effectively
nullified the credibility of the FIR on which the entire investigation
was based.
P.W.25, another brother of the deceased Subash, also failed
to support the prosecution's case. He stated that he had no personal
knowledge of any threats to his brother's life and did not implicate
any of the accused in the crime. Like P.W.24, he contradicted the
prosecution's narrative of a targeted killing due to tender rivalry.
His testimony further supported the defense's claim that the case
against the accused was fabricated without substantial evidence.
P.W.27, Niranjan Rath, a friend of the deceased, was
another crucial witness for the prosecution, as his statement under
Section 164 CrPC alleged that the deceased had disclosed fears of
being murdered by the accused. However, during trial, he turned
hostile and denied making any such statement voluntarily. He stated
that his statement before the magistrate was obtained under police
pressure and that he had no knowledge of any conspiracy. This
directly impacted the prosecution's attempt to establish motive, as it
eliminated crucial pre-murder threats that the accused were alleged
to have made.
P.W.28, another associate of the deceased, was expected to
corroborate the motive of the crime and threats received by the
deceased. However, like P.W.27, he failed to support the
prosecution's case and denied knowledge of any threats or
conspiracy involving the Accused-Respondents. His testimony was
inconsistent with his previous statement, and when confronted with
his prior statement under Section 161 CrPC, he refused to
acknowledge it.
P.W.34, an alleged acquaintance of the deceased, was
examined by the prosecution to establish that Subash Chandra Das
and Dhiren Kumar Sethi had received threats from the Accused-
Respondents prior to their murder. However, during his testimony,
he failed to substantiate any claims of prior threats or conflicts
between the deceased and the Accused-Respondents. He admitted
to knowing the deceased but denied having any knowledge of their
involvement in tender disputes or their interactions with the
Accused-Respondents. His testimony failed to support the
prosecution's motive theory that the murder was a result of rivalry
over tenders.
P.W.42, another associate of the deceased, was presented by
the prosecution to corroborate the theory that the deceased were
being targeted by the accused. However, he did not provide any
direct evidence linking the Accused-Respondents to the crime. He
stated that while the deceased had spoken to him about general
disputes in their business, they never specifically mentioned the
Accused-Respondents as threats to their lives. This testimony
significantly weakened the prosecution's attempt to establish a
conspiracy and motive, as it failed to prove that the accused had any
animosity towards the deceased prior to the crime.
P.W.65, the mother of deceased Subash Chandra Das, was
expected to provide key testimony regarding any prior threats or
conflicts her son faced before his murder. However, during her
deposition, she denied having any knowledge of her son's disputes
with the Accused-Respondents. She acknowledged that her son was
murdered but stated that she did not know who was responsible.
When confronted with her previous statement recorded under
Section 161 CrPC, in which she allegedly claimed that her son had
feared for his life, she denied making any such statement. This
testimony severely damaged the prosecution's case, as it eliminated
a key element of premeditation and motive.
P.W.67, the father of deceased Subash Chandra Das,
similarly failed to support the prosecution's claims. He stated that
while his son was involved in contracting work, he had no
knowledge of any enmity between his son and the Accused-
Respondents. He further testified that he was not aware of any
specific threats made against his son before the murder. Like
P.W.65, he was confronted with his previous statement under
Section 161 CrPC, in which he had implicated the accused, but he
denied having ever made such statements. His testimony further
weakened the prosecution's case, as it failed to establish any
connection between the accused and the murder.
11. From the above, it is apparent from the very outset that the
case relied heavily on circumstantial evidence and witness
testimonies, yet the majority of prosecution witnesses either turned
hostile or failed to provide any substantive evidence linking the
accused to the crime. Independent eyewitnesses who were allegedly
present at the scene of the crime failed to identify the assailants,
stating that they heard gunshots but could not see who fired them or
how the attack unfolded. Their statements were vague,
contradictory, and lacked the specificity required to establish the
identity of the perpetrators. Moreover, several witnesses, who were
expected to corroborate the prosecution's theory that the deceased
had received threats from the Accused-Respondents prior to the
crime, denied having any such knowledge when examined during
the trial.
The most damaging aspect of the prosecution's case was the
key witnesses turning hostile, including close family members of
the deceased persons, who were expected to establish motive and
prior enmity. The informant himself (P.W.24), the elder brother of
deceased Subash Chandra Das, completely disowned the contents
of the FIR, stating that he had signed the report at the police station
without reading it and had no knowledge of the accused's
involvement. This retraction effectively nullifies the foundation of
the case, as it created serious doubts about the credibility of the
initial allegations. Similarly, other family members, including
P.W.25 (another brother of Subash), P.W.65 (mother of the
deceased), and P.W.67 (father of the deceased), failed to provide
any testimony supporting the claim that the deceased had been
threatened or that the accused had a motive to commit the murder.
Their depositions directly contradicted the prosecution's theory of a
premeditated killing due to business rivalries, significantly
weakening the case. Beyond family members, independent
witnesses who allegedly had knowledge of the conspiracy or threats
leading up to the murder also turned hostile. P.W.27, a close
associate of the deceased, had previously given a statement under
Section 164 CrPC stating that the deceased had feared being killed
by the Accused-Respondents, but during trial, he denied making
such a statement voluntarily and claimed that he was pressured by
the police. Similarly, P.W.23, a Member of the Legislative
Assembly (MLA) and paternal uncle of the deceased, did not
support the prosecution's case, stating that he had no knowledge of
any threats or enmity involving the accused. This directly
undermined the prosecution's attempt to establish prior threats as a
motive for the crime. Moreover, the Test Identification Parade
(TIP) failed to yield reliable results, as P.W.19, one of the
identification witnesses, admitted during cross-examination that he
had been shown photographs of the accused by the police before the
TIP.
12. Since it is not disputed that the nature of death is homicidal
due to the gun shot injuries, we do not find it relevant to discuss on
this issue to make the judgment bulky.
13. Coming to the culpability of the Accused-Respondents, the
prosecution has relied upon the identification of the Accused-
Respondents by P.W.19 through the conduct of the Test
Identification Parade (TIP). The Hon'ble Supreme Court in
Gireesan Nair & Ors. Etc. vs. State of Kerala reported in AIR
1984 SC 1622 has discussed the importance and sanctity of the Test
Identification Parade, wherein it is held that -
"42. This Court in Budhsen and Anr. v. State of UP
[(1970) 2 SCC 128], had directed that sufficient
precautions have to be taken to ensure that the
witnesses who are to participate in the TIP do not have
an opportunity to see the accused before the TIP is
conducted. In Lal Singh v. State of U.P. [(2003) 12
SCC 554], this Court had held that a trial would be
adversely affected when the witnesses have had ample
opportunity to see the accused before the identification
parade is held. It was held that the prosecution should
take precautions and establish before the Court that
right from the day of his arrest, the accused was kept
"baparda" to rule out the possibility of his face being
seen while in police custody. Later, in Lalli v. State of
Rajasthan [(2003) 12 SCC 666] and Maya Kaur
Baldevsingh Sardar and Anr. v. State of Maharashtra
[(2007) 12 SCC 654], this Court has categorically held
that where the accused has been shown to the witness
or even his photograph has been shown by the
investigating officer prior to a TIP, holding an
identification parade in such facts and circumstances
remains inconsequential. Another crucial decision was
rendered by this Court in Shaikh Umar Ahmed Shaikh
and Anr. v. State of Maharashtra [(1998) 5 SCC 103],
where it was held:
8. .... But, the question arises: what value could be
attached to the evidence of identity of accused by the
witnesses in the Court when the accused were
possibly shown to the witnesses before the
identification parade in the police station. The
Designated Court has already recorded a finding that
there was strong possibility that the suspects were
shown to the witnesses. Under such circumstances,
when the accused were already shown to the
witnesses, their identification in the Court by the
witnesses was meaningless. The statement of
witnesses in the Court identifying the accused in the
Court lost all its value and could not be made the
basis for recording conviction against the accused.
The reliance of evidence of identification of the
accused in the Court by PW 2 and PW 11 by the
Designated Court, was an erroneous way of dealing
with the evidence of identification of the accused in
the Court by the two eyewitnesses and had caused
failure of justice. Since conviction of the appellants
have been recorded by the Designated Court on
wholly unreliable evidence, the same deserves to be
set aside."
14. In the instant case, the T.I. Parade suffers from the very
defects cautioned against by the Hon'ble Supreme Court in the
afore-mentioned judgments. The Apex Court has consistently held
that a TIP must be conducted in a fair, impartial, and uninfluenced
manner to ensure that the witness's identification is based on
independent recollection and not on suggestive cues provided by
the investigating agency. P.W.19, a key identification witness,
admitted during his cross-examination that the police had shown
him photographs of the Accused-Respondents before the TIP was
conducted. The disclosure that P.W.19 had prior exposure to images
of the accused creates a strong possibility of manipulation and
police influence, making the entire identification process tainted
and unreliable. Furthermore, P.W.19 expressed doubts about his
own ability to correctly identify the accused, admitting that he was
not certain if he had actually seen them at the crime scene.
Furthermore, the prosecution failed to establish that the accused
were kept "baparda" (under cover) from the time of their arrest to
rule out any possibility of prior exposure to the witnesses. This
procedural lapse renders the TIP unreliable and inconsequential, as
it violates the fundamental requirement that the witnesses must not
have prior opportunity to see the accused before identification.
Given these serious irregularities, the trial Court rightly disregarded
the TIP, as the fundamental purpose of a TIP is to ensure an
unbiased and spontaneous recognition of the accused by the
witness, free from external influence and this Court finds no reason
to rely on the flawed identification process as credible evidence
against the Accused-Respondents.
15. With regard to the confessional statements made by the
Accused-Respondents leading to discovery, the decision of Apex
Court in Manjunath & Ors. vs. State of Karnataka, reported in
2023 LiveLaw (SC) 961, has reaffirmed that for a discovery
statement to be admissible under Section 27 of the Evidence Act,
1872, it must strictly conform to the conditions laid down in
Pulukuri Kotayya vs. King Emperor reported in 1946 SCC
OnLine PC 47 and Mohd. Inayatullah vs. State of Maharashtra
reported in (1976) 1 SCC 828. Held as under -
"26. Further discovery made, to be one satisfying the
requirements of Section 27, Indian Evidence Act it must
be a fact that is discovered as a consequence of
information received from a person in custody. The
conditions have been discussed by the Privy Council in
Pulukuri Kotayya v. King Emperor 1946 SCC
OnLine PC 47 and the position was reiterated by this
Court in Mohd. Inayatullah v. State of Maharashtra
(1976) 1 SCC 828, in the following terms:-
"12...It will be seen that the first condition necessary for
bringing this section into operation is the discovery of a
fact, albeit a relevant fact, in consequence of the
information received from a person accused of an
offence. The second is that the discovery of such fact
must be deposed to. The third is that at the time of the
receipt of the information the accused must be in police
custody. The last but the most important condition is
that only "so much of the information" as relates
distinctly to the fact thereby discovered is admissible.
The rest of the information has to be excluded. The
word "distinctly" means "directly", "indubitably",
"strictly", "unmistakably". The word has been advisedly
used to limit and define the scope of the provable
information. The phrase "distinctly relates to the fact
thereby discovered" is the linchpin of the provision.
This phrase refers to that part of the information
supplied by the accused which is the direct and
immediate cause of the discovery..." (Emphasis
supplied)
16. In the instant case, the trial Court rightly disregarded the
alleged confessional statements of accused Guna @ Bablu Lenka
and Dhadu @ Artatrana Pradhan on the ground that they were not
signed by the Accused-Respondents, and the independent witnesses
to these statements were untraceable. For a statement under Section
27 of the Indian Evidence Act, 1872, to be admissible, only that
portion of the statement which distinctly relates to the fact
discovered is admissible. The prosecution relied on the confessional
statements of the Accused-Respondents to establish the recovery of
firearms. However, the record highlights that the seizure of
weapons based on the confessional statements was not conducted in
the presence of reliable independent witnesses, which casts serious
doubt on the authenticity of the recovery, and the police failed to
establish an unbroken chain of custody regarding the seized arms
and ammunition. The phrase "distinctly relates to the fact thereby
discovered" is the linchpin of Section 27.
17. The next aspect for consideration is the ballistic
examination that was conducted on the firearms and bullets seized
from the crime scene, the deceased's body, and the Accused-
Respondents' alleged possession. The State Forensic Science
Laboratory, Bhubaneswar, submitted its report vide Ext.24,
detailing the examination of firearms, bullets, and empty cartridges.
Findings of the Ballistic Report:
1. Weapons Examined:
o One country-made single-shot pistol, allegedly seized from
accused Dhadu @ Artatrana Pradhan.
o One country-made six-chambered revolver, allegedly seized
from accused Guna Lenka.
2. Ammunition and Fired Bullets Examined:
o 8 mm jacketed bullet (without lead core) recovered from the
crime scene.
o .303 bullet recovered from the crime scene.
o One 8 mm cartridge recovered from the crime scene.
o Two fired .38 caliber bullets, recovered from the body of
deceased Dhiren Kumar Sethi during the post-mortem.
3. Results of Examination:
o The country-made single-shot pistol (Item No.12) was capable
of firing 8 mm cartridges, and the six-chambered country-made
revolver was capable of firing .38 cartridges.
o The 8 mm bullet recovered from the scene (Item No.9) was
found to be an 8 mm jacketed bullet, but it could not be
definitively linked to the pistol allegedly seized from Dhadu.
o The .303 bullet (Item No.10) could have been fired from a
country-made firearm with a .303 cartridge chamber, but there
was no matching weapon seized from the accused.
o The 8 mm cartridge (Item No.11) was found to be capable of
being fired from a country-made pistol chambering 8 mm
cartridges, such as the one allegedly seized from Dhadu.
o The two .38 caliber bullets recovered from the body of deceased
Dhiren Kumar Sethi matched the characteristics of bullets fired
from a country-made revolver similar to the one seized from
Guna Lenka.
o However, no conclusive microscopic match could be
established between the bullets recovered from the deceased
and the specific revolver seized from Guna.
4. Chemical and Residue Analysis:
o Barrel washings of both the country-made revolver and pistol
revealed the presence of smokeless powder residue, confirming
that both firearms had been used for firing.
o However, the report could not determine the timeframe of the
last firing, making it inconclusive whether the weapons were
used in the specific crime.
The ballistic report poses significant doubts about the
prosecution's claim that the accused used the seized firearms to
commit the murder. While the revolver and pistol seized from the
accused were found to be functional and capable of firing
ammunition similar to the bullets recovered from the scene and the
deceased, the forensic expert could not definitively establish that
the bullets extracted from the bodies were fired from those specific
weapons. The lack of a conclusive microscopic match between the
seized firearms and the recovered bullets creates a substantial gap in
the chain of evidence, raising reasonable doubt regarding the
accused's direct involvement in the shooting. Moreover, the report
highlights inconsistencies in the seizure and forwarding of firearms
for forensic examination. Notably, the prosecution claimed that a
.303 bore pistol was seized from accused Dhadu, but the firearm
forwarded for examination was a country-made pistol chambering 8
mm cartridges, which was not listed in the initial seizure report.
This discrepancy casts serious doubt on the integrity of the forensic
evidence and raises concerns about possible fabrication or
substitution of material evidence.
Additionally, the presence of gunshot residue (GSR) in the
barrels of the seized weapons only confirms prior use but does not
establish when they were last fired or whether they were used in the
murder of the deceased. Without a definitive link between the
bullets recovered from the deceased and the weapons seized from
the accused, the prosecution's case relies on circumstantial
evidence rather than conclusive forensic proof.
18. Undisputedly, the instant case is based on circumstantial
evidence. The law with regard to conviction based upon
circumstantial evidence is very well settled in the case of Sharad
Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984
SC 1622, held as follows -
"3:3. Before a case against an accused vesting on
circumstantial evidence can be said to be fully
established the following conditions must be fulfilled
as laid down in Hanumat's v. State of M.P. [1953]
SCR 1091.
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 with
the hypothesis of guilt and the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty;
3. The circumstances should be of a conclusive nature
and tendency;
4. They should exclude every possible hypothesis
except the one to be proved; and
5. 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 constitute the panchsheel
of the proof of a case based on circumstantial evidence
and in the absence of a corpus deliciti.
Hanumant v. The State of Madhya Pradesh [1952]
SCR 1091; Tufail (Alias) Simmi v. State of Uttar
Pradesh [1969] 3 SCC 198; Ramgopal v. State of
Maharashtra AIR 1972 SC 656; and Shivaji Sahabrao
Babode & Anr. v. State of Maharashtra [1973] 2 SCC
793 referred to.
3:4. The cardinal principle of criminal jurisprudence is
that a case can be said to be proved only when there is
certain and explicit evidence and no pure moral
conviction."
19. While the gravity of the crime is undeniable, and the tragic
loss of lives is deeply saddening, this Court must decide the case
based solely on the strength of the evidence presented by the
prosecution. A criminal conviction requires proof beyond a
reasonable doubt, and in this case, the prosecution's reliance on
circumstantial evidence fails to meet the stringent criteria laid down
in Sharad Birdhi Chand Sarda vs. State of Maharashtra
(Supra). The circumstances relied upon by the prosecution are
neither fully established nor conclusively linked to the guilt of the
accused. The alleged motive of tender rivalry remains
unsubstantiated, as multiple witnesses, including the family
members of the deceased, denied any prior threats or conflicts with
the accused persons. The ballistic report failed to conclusively link
the bullets recovered from the deceased to the firearms allegedly
seized from the Accused-Respondents, creating a significant gap in
the chain of evidence. Furthermore, the Test Identification Parade
(TIP) was tainted by procedural irregularities, as P.W.19 admitted
that the police had shown him photographs of the accused before
the parade, rendering the identification unreliable. Most
importantly, the chain of evidence is not so complete as to exclude
every possible hypothesis except the guilt of the Accused-
Respondents. The circumstantial evidence does not form an
unbroken sequence leading to only one conclusion that the
Accused-Respondents committed the crime. Instead, multiple
inconsistencies and evidentiary gaps leave ample room for
reasonable doubt, and as per the panchsheel principles of
circumstantial evidence, such doubt must benefit the accused.
Given these discrepancies, the trial Court rightly acquitted the
Accused-Respondents, and this Court finds no reason to interfere
with the well-reasoned decision of acquittal.
20. Accordingly, the Criminal Leave Petition is thereby
dismissed on merit upon question of admission.
(Chittaranjan Dash)
Judge
(B.P. Routray)
Judge
A.K.Pradhan/Bijay
Location: HIGH COURT OF ORISSA
