Orissa High Court
Madan Kanhar @ Mitu vs State Of Odisha on 7 March, 2025
Author: Chittaranjan Dash
Bench: S. K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No. 08 of 2008
(Arising out of the Judgment of conviction dated 02nd of January,
2008 passed by Sri Raghubir Dash, Sessions Judge, Phulbani, in
Sessions Trial No.94 of 2005, for the offence under section 302/379
of the Indian Penal Code, 1860).
Madan Kanhar @ Mitu ... Appellant
Mr. Jambeswar Pati,
Advocate.
-versus-
State of Odisha ... Respondent
Mr. Aurobinda Mohanty,
Addl. Standing Counsel.
CORAM:
THE HON'BLE MR. JUSTICE S. K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment : 07.03.2025
Chittaranjan Dash, J.
1. The Appellant, namely Madan Kanhar @ Mitu, faced the trial
on the charges under Sections 302/379 of the Indian Penal Code (in
short, hereinafter referred to as "IPC") before the learned Sessions
Judge, Phulbani, in Sessions Trial No. 94 of 2005, wherein, the learned
Court found him guilty for the offence under Section 302 IPC and
sentenced him to undergo imprisonment for life. He was, however, not
found guilty u/s 379 IPC and was acquitted therefrom.
2. The prosecution case, in brief, is that the deceased had gone to
collect firewood in the Talemba Hill area, but did not return home.
Her mother namely Kaina Jani, P.W.2, went in search of her and
found her lifeless body in the jungle. The body had visible injuries on
the head, scapular region and legs, and her ear lobes were found
lacerated. A missing ornament ('kanafasa') further supported the
suspicion of foul play. Around 10-12 days before her death, the
deceased had a quarrel with Panamati, in whose house the Appellant
resided. The informant, P.W.1, reported the matter to the police,
leading to the registration of Khajuripada P.S. Case No. 24/05, vide
Ext.1, and the investigation commenced.
3. In course of the investigation, the I.O. visited the spot,
prepared the spot map vide Ext. 13, and conducted inquest over the
dead body of the deceased, collected blood-stained earth and sample
earth from the spot. The I.O. detected an axe lying two feet away from
the dead body, stained with blood and with strands of hair attached.
The axe (M.O.VI) was seized as the suspected weapon of offense. The
deceased's saree, blouse, and other clothing were also seized. The
dead body was sent for post-mortem examination and the report
(Ext.6) confirmed that the cause of death was due to shock and
hemorrhage resulting from antemortem injuries. The Accused-
Appellant was arrested on 13.04.2005, and while he was in police
custody, he voluntarily disclosed that he had washed his blood-stained
clothes in a tank and hidden them in Panamati's house. Upon leading
the police and witnesses to the location, the Appellant gave recovery
of his half-shirt and napkin, both of which were later found to have
human bloodstains. The seized exhibits, including the weapon, were
sent to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination.
On completion of the investigation, charge sheet was submitted
against the Appellant to face trial.
4. The case of the defence is one of complete denial and false
accusations.
5. To bring home the charge, the prosecution examined 13
witnesses in all. P.W.1 being the informant, P.W.2 is the mother of the
deceased, P.Ws. 3, 4 and 8 are the seizure witness, P.W.5 is the
alleged eyewitness, P.W.6 is the doctor who conducted post-mortem
examination, P.W.7 is a police constable, P.W.9 is witness to the
leading to discovery, P.Ws. 10 and 11 are the co-villagers of the
deceased and the Appellant, P.W.12 is the agnatic cousin of the
deceased and a co-villager, and finally P.W.13 is the I.O.
6. The learned trial Court leaning to the side of prosecution,
believing the evidence of P.W.5 in particular, 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.
7. Mr. Jambeswar Pati, learned counsel appearing on behalf of
the Appellant, argues that the case of the prosecution suffers from
significant inconsistencies and lacks the certainty required to establish
the guilt beyond all reasonable doubt. He submits that, firstly, the
testimony of P.W.5, the alleged eyewitness, fails to meet the standard
of a "sterling witness" as laid down by the Hon'ble Supreme Court.
Her prolonged silence, the failure to examine the other persons she
mentioned, and her close ties with the deceased's family, make her
testimony unreliable. Secondly, the evidence related to the so-called
discovery under Section 27 of the Indian Evidence Act is riddled with
contradictions. P.W.9, the witness to the discovery, categorically
stated that the Appellant never made any disclosure before him and
that the police merely informed him of the alleged statement.
Moreover, the seizure of the Appellant's clothes, despite being found
with bloodstains, does not strengthen the prosecution's case, since the
chemical examination report was inconclusive, failing to confirm
whether the blood was human or linked to the deceased. Mr. Pati
further submits that, P.W.6's medical opinion regarding the possibility
of injuries being caused by M.O.VI remains inconclusive, as he could
not confirm whether the same axe was sent to him due to the absence
of identification marks. This coupled with the inconclusive forensic
report, prevents any definitive linkage between the Appellant and the
alleged weapon of offense. Lastly, there is no direct evidence or
unimpeachable circumstantial evidence linking the Appellant to the
crime. The chain of circumstances remains incomplete, failing the test
laid down in Sharad Birdhi Chand Sarda v. State of Maharashtra
reported in (1984) 4 SCC 116, where the Supreme Court held that,
every link in the chain of circumstantial evidence must be established
beyond reasonable doubt to convict an accused. Mr. Pati concludes his
argument by submitting that mere suspicion or weak circumstantial
evidence cannot substitute the high threshold of proof required in a
criminal trial and, therefore, the Appellant deserves the benefit of
doubt, and his conviction cannot be sustained in law.
8. Mr. Aurobindo Mohanty, learned Additional Standing
Counsel, on the other hand, contends that the evidence on record
sufficiently establishes the guilt of the Appellant beyond all
reasonable doubt. P.W.5, despite her delayed disclosure, remains a
crucial eyewitness, who directly implicated the Appellant, stating that
she saw him attacking the deceased with an axe. Her testimony is
corroborated by the medical evidence provided by P.W.6, who
confirmed that the injuries sustained by the deceased were consistent
with those caused by a sharp-edged weapon like an axe. Furthermore,
recovery of the Appellant's blood-stained clothes pursuant to his
disclosure statement under Section 27 of the Indian Evidence Act
remains a significant piece of evidence. Mr. Pati argues that the
presence of bloodstains on the Appellant's clothing, even though
inconclusive in the chemical examination report, reinforces the
possibility of his involvement. He further contends that the strained
relationship between the deceased and the Appellant, arising from the
Appellant's alleged marriage proposal and the prior altercations with
Panamati, provides a strong motive for the crime. The post-mortem
report confirms that the injuries sustained by the deceased were
homicidal in nature and not the result of an accidental fall, ruling out
any other plausible explanation for her death. While the Appellant
attempts to discredit the chain of circumstances, it remains intact and
sufficiently compelling, when viewed in its entirety. Mr. Mohanty,
learned counsel for the State asserts that minor inconsistencies do not
vitiate an otherwise credible prosecution case, especially when the
overall evidence points towards the Appellant's guilt. He finally
submits that, considering the direct eyewitness account, medical
evidence, motive and circumstantial factors, the conviction of the
Appellant under Section 302 IPC is justified and ought to be upheld.
9. 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.1, Mogul Jani, is the informant and a co-villager. In his
sworn testimony he states that, about 15 days prior to the FIR, the
deceased had told him that over a dispute between her and one
Panamati (in whose house the Appellant was staying) in regard to the
share of rice, she assaulted Panamati. On the date of occurrence, the
deceased left her house at about 8:30 a.m. to fetch firewood from the
jungle, but never returned. P.W.2, the mother of the deceased went to
look for her daughter and found her daughter's dead body lying in the
jungle. At about 03:00 p.m., P.W.2 narrated everything to P.W.1 and
accordingly he reported to the police. He was present when the inquest
was conducted by the I.O. in the Talamba Hill. He noticed cut injuries
over the scapular region and back of the head over neck as well as
earlobes lacerated. No ornament was found on her ears. In his cross-
examination, he states that the Appellant is not related to Panamati
and denied to have mentioned about the dispute between the deceased
and Panamati before the I.O.
P.W.2, Kaina Jani, is the mother of the deceased. She stated
that her daughter left home to collect firewood at about 8 a.m. and
when she did not return by 12 noon, she went to look for her. As she
reached the hill, she found her daughter to be lying dead. She noticed
injuries on the head, scapular region, legs, etc. She also found that her
daughter's 'kanafasa' (a type of ear-ring) was missing and her
earlobes were lacerated. She corroborated with P.W.1's account of the
dispute between the deceased and Panamati about 10-12 days prior to
the occurrence.
P.W.5, Sabitri Jani, is a co-villager. She states that on the date
of occurrence, she, Sukanti and Sadhabani had gone to Baradi Mundia
to collect fire wood. They noticed that the deceased had gone to
Tolamba Hill to collect firewood and she was about 60 cubits away
from them. At about 10:00 a.m., P.W.5 heard a cry raised by the
deceased shouting "Mitu hani dela." They all rushed towards the
deceased and saw the Appellant giving axe blows to the deceased.
When the deceased saw them, he threatened to kill them as well, if
they disclosed about the incident to anyone. Out of fear, all three of
them did not venture to tell anybody about what they saw. In her
cross-examination, P.W.5 states that both Baradi Mundia and
Tolamba Hills are situated side by side. She further states that the
Appellant had gone with her, Sukanti and Sadhabani to the Hill
together, but on the way he proceeded towards Tolamba and the others
went on to Baradi. She explains that she saw the Appellant chasing the
deceased and giving blows, and the deceased was seen to be running
into the hill and not towards the road, which she saw from behind. She
was interrogated about six days after the incident and before that she
had not disclosed this fact before anyone.
P.W.9, Mukteswar Mallik, is the witness to the leading to
discovery. In his sworn testimony, he states that he was called by the
police on 13.04.2005. In the police station, the Appellant stated before
the police that after killing the deceased, he washed his wearing
apparels in a tank and had kept the same in the house of Panamati,
where he was residing. The police then took P.W.9 and the Appellant
to Panamati's house, where the Appellant brought out the clothes,
such as a towel, a lungi and a half shirt which were then seized in
front of P.W.9. In his cross-examination, he said to have been to the
police station for his sisters, as they were held up there in connection
with this case. He further states that Ext.9/1 was not prepared in his
presence or others, and it was already prepared before his arrival.
However, the Appellant did make the statement in his presence at
about 03:00 p.m. The police then told P.W.9 and others that since the
Appellant had disclosed where he has kept his clothes, they should
accompany them to witness the seizure. P.W.9 affirms that the
Appellant did not make any statement to the police in his presence and
whatever he has stated was told to him by the police. He further states
that the Appellant did not disclose before him and others that after
killing the deceased, he washed his wearing apparels in a tank and
kept the same in the house of Panamati.
P.W.10, Sabita Mallik, is a co-villager, who denied to have
known anything about the case at all. She further denied to the leading
questions put to her by reading out her statement u/s 161 CrPC, where
she had mentioned that the Appellant was in love with the deceased.
In her cross-examination, she states that she was not interrogated by
the police. Moreover, the police had only taken down her name and
address and had asked her nothing.
P.W.12, Mrutyunjaya Jani, is a cousin of the deceased. He
stated that he knew about the assault made by the deceased to
Panamati from the deceased's mother. In the village, P.W.9 had often
seen the deceased and the Appellant together. The deceased had also
told him that the Appellant had proposed her to marry him, but she
was unwilling to marry him. Because of the dispute between the
deceased and Panamati and unacceptance of the marriage proposal,
the relationship between Appellant and deceased was strained.
10. Before analysing the culpability of the Appellant, it is
incumbent to examine if the prosecution could successfully establish
the death of the deceased to be homicidal in nature. P.W.6, the
medical officer who conducted the post-mortem examination report,
has opined the following :
External injuries:
(i) One chopped wound (incised) at the lower base of right-side
neck 3½" x 2" x 3" with margins showing abrasions and
bruising and cutting of neck muscles and underlining vessels
and nerves and the cervical vertebras 6th 7th fractured and
spinal and exposed outside.
(ii) Incised wound on skull over left parieto-occipital region of
size 7" x 2" x 2" with communicated fracture of left parietal
bone ½" above left pinna. Underlying (illegible) and brain
matters found spilled out. One haematoma with 150 ml blood
was present.
(iii) An incised wound 3½" x 1½" x 1½" on the middle of the right
scapula cutting the muscles and subcutaneous tissues. Maggots
were present.
(iv) Incised wound on the inferior boarder of left scapula of size
2" x 1½" x 1½" involving the subcutaneous tissue and muscles
(v) Incised wound 2" x 1" x 1" on the top of left shoulder with
cutting of underlying muscles and fracture of left clavicle with
blood cloth of 100 ml.
(vi) Bruise of 2" x 1" size on left lower quadrant of left abdomen
(vii) Bruise and abrasion of right tip point of size 3" x 1".
(viii) Bruise of 3" x 2" in between both scapula.
(ix) Multiple minute abrasions on the back of both lower legs.
On dissection :
(a) Corresponding to injury (i), involvement of deep cervical
fascia, deep muscles, internal carotid artery and internal
jugular vein and prevertebral fascia were cut with disruption
of cervical 6th & 7th vertebra exposing the spinal cord was
found.
(b) With reference to injury (ii), depressed communicated fracture
of parieto occipital bone with intra cerebellar laceration and
haematoma was found.
P.W.6 opined the cause of death is due to shock and
haemorrhage. Injuries (i) and (ii) can cause immediate shock and
haemorrhage and sufficient to cause death in ordinary course. The
death occurred within 36 hours of the time of postmortem. No sign of
sexual violence found. In his cross-examination, he ruled out the
possibility of the injuries to be caused by a fall from a height on a
rocky surface with sharp edges of stones coming in contact with the
body. All except injury (i) are possible by such fall.
11. The post-mortem findings of P.W.6 unequivocally establish
that the death of the deceased was homicidal in nature. The multiple
incised wounds on the neck, skull, scapula, and shoulder, along with
the fractures and lacerations in vital parts of the body such as the
cervical vertebrae, brain matter, and major blood vessels, indicate a
deliberate and forceful assault rather than an accidental fall. The
nature, depth, and pattern of the injuries are consistent with sharp-
edged weapon trauma, when P.W.6 specifically ruled out the
possibility of these injuries resulting from a fall on a rocky surface,
except for injury (i). Furthermore, the extent of blood loss and damage
to critical anatomical structures caused immediate shock and
haemorrhage, leading to death within an estimated 36 hours before the
post-mortem. P.W.6 further acknowledged that some injuries cannot
be caused by a single stroke with M.O.VI, the overall pattern of
wounds suggests a sustained and intentional attack rather than an
accidental occurrence. In light of these observations, there is no doubt
that the death of the deceased was a result of homicidal violence.
12. Coming to the culpability of the Appellant, the learned trial
Court has relied upon the evidence of P.W.5 as an eye-witness. While
appreciating the prosecution case, in this regard, reference may be
made to the decision of the Hon'ble Apex Court in the matter of
Naresh @ Nehru vs. State of Haryana, reported in 2023 INSC 889 -
"9.3 As noticed hereinabove, the evidence of the eye-
witness should be of very sterling quality and calibre and
it should not only instil confidence in the court to accept
the same but it should also be a version of such nature
that can be accepted at its face value. This Court in the
case of Rai Sandeep @ Deepu alias Deepu Vs. State
(NCT of Delhi) (2012) 8 SCC 21 has held:
"22. In our considered opinion, the "sterling witness"
should be of very high quality and calibre, whose version
should, therefore, be unassailable. The court considering
the version of such witness should be in a position to
accept it for its face value without any hesitation. To test
the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of
the statement right from the starting point till the end,
namely, at the time when the witness makes the initial
statement and ultimately before the court. It should be
natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication
in the version of such a witness. The witness should be in
a position to withstand the cross-examination of any
length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation
with each and every one of other supporting material
such 13 as the recoveries made, the weapons used, the
manner of offence committed, the scientific evidence and
the expert opinion. The said version should consistently
match with the version of every other witness. It can even
be stated that it should be akin to the test applied in the
case of circumstantial evidence where there should not be
any missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as
well as all other such similar tests to be applied, can it be
held that such a witness can be called as a "sterling
witness" whose version can be accepted by the court
without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should
remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the
said version in material particulars in order to enable the
court trying the offence to rely on the core version to
sieve the other supporting materials for holding the
offender guilty of the charge alleged."
13. In the instant case, the testimony of P.W.5, the supposed
eyewitness, fails to meet the standard of a "sterling witness", as laid
down by the Hon'ble Supreme Court. The Court has held that, an
eyewitness must be of the highest quality and credibility, and their
version should be so unimpeachable that it can be accepted at its face
value without hesitation. A sterling witness must provide a natural and
consistent account that withstands rigorous cross-examination and
aligns with the overall case of the prosecution. A major flaw in
P.W.5's statement is her delayed disclosure. She claims to have
witnessed the Appellant assaulting the deceased with an axe and even
heard the victim cry out, "MITU HANI DELA." Despite allegedly
seeing such a brutal act, she failed to inform anyone about it until six
days after the incident. This delay in disclosure raises serious doubts
about the credibility of her testimony. If she had genuinely witnessed
a murder, her silence is highly unnatural and unexplained. The reason
given that she was threatened by the Appellant appears weak, as she
was in the company of two others, who were also not examined as
witnesses. Their absence in the trial further weakens her statement, as
the prosecution failed to bring forward independent witnesses to
substantiate her claims. There is no evidence on record that the
Appellant was having criminal background. The police was coming to
the village from the date of occurrence in connection with the
investigation of the case. Therefore, it is difficult to accept that, on
account of threats given by the Appellant, there was delayed
disclosure. If, in spite of presence of the police in the village, she was
in a state of fear as the Appellant had not been arrested, then how her
fear dispersed when she gave her statement to police six days after the
occurrence, as by that time the Appellant was in large, which creates
doubt about the truthfulness of her version.
Moreover, P.W.5 had a close relationship with the deceased's
family, which introduces a strong possibility of bias. This factor
further diminishes the reliability of her statement, as she had a natural
inclination to support the prosecution's case. If she truly saw the
murder take place, it is highly improbable that she would have
remained silent for such a prolonged period. Her hesitation in
reporting such a grave crime contradicts normal human behaviour and
casts significant doubt on her credibility. Additionally, her account
lacks coherence, as she first states that the deceased was running into
the hill while the Appellant was chasing her, yet she later describes
witnessing the assault from behind. These inconsistencies make her
testimony unreliable. The Supreme Court's decision in Rai Sandeep
@ Deepu (Supra) underscores that a sterling witness's testimony must
be free from any contradictions, should be wholly reliable, and should
not require corroboration. P.W.5's testimony does not meet this high
standard. Her delay in reporting, lack of corroboration from other
potential witnesses, and the improbability of her silence make it
unsafe to rely on her statement. Given these shortcomings, her
evidence does not inspire confidence and should not be considered
sufficient to uphold a conviction.
14. Moving on to the next circumstance for consideration, the
prosecution relied on the alleged discovery of blood-stained clothes
under Section 27 of the Indian Evidence Act. As in the matter of
Manjunath & Ors. vs. State of Karnataka, reported in 2023 LiveLaw
(SC) 961, it is so discussed by the Apex Court that -
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)
15. In the instant case, P.W.9, who was presented as a witness to
the Appellant's alleged disclosure, explicitly stated in his cross-
examination that the Appellant never made any statement before him.
Instead, he admitted that the police merely informed him about the
alleged disclosure and led him to witness the subsequent seizure. This
directly contradicts the requirement under Section 27 of the Indian
Evidence Act, 1872, which mandates that, only such information
given by the accused in police custody, leading to the discovery of a
fact previously unknown, is admissible. Since P.W.9 himself did not
hear the Appellant's alleged statement, the very foundation of the
prosecution's reliance on this discovery is rendered inadmissible and
unreliable. Furthermore, P.W.9 confirmed that Ext. 9/1, the statement
recorded under Section 27 of the Evidence Act, was not prepared in
his presence or in the presence of other witnesses. Rather, he arrived
at the police station after the document had already been prepared.
This raises serious doubts about the authenticity of the alleged
disclosure. If the document was prepared in prior, it suggests that the
statement attributed to the Appellant may not have been voluntary.
Moreover, the chemical examination report (Ext.15) further
weakens the prosecution's case. While blood was detected on the
lungi, half-shirt and napkin seized under Ext. 8, the forensic analysis
was inconclusive in determining whether it was human blood or
linking it to the deceased. This inconclusiveness means that the
forensic evidence lacks probative value and fails to establish any
direct connection between the Appellant and the crime. Even if it is
assumed that the Appellant washed his clothes, thereby diluting any
potential forensic evidence, this mere assumption does not establish
his culpability. The principle laid down in Navaneethakrishnan vs.
State reported in (2018) 16 SCC 161, reiterates that "there is a long
mental distance between "may be true" and "must be true" and the
same divides conjectures from sure conclusions."
For a recovery to be admissible under Section 27, the
information given by the accused must lead to a new fact directly
connected to the crime. However, in the present case, there is no
independent evidence proving that the clothes belonged to the
Appellant at the time of the crime, nor does the forensic report
conclusively support the prosecution's case. In the absence of a
reliable disclosure statement and conclusive scientific results, the
prosecution's attempt to use this recovery as incriminating evidence
against the Appellant is untenable.
16. Moreover, P.W.6, the Medical Officer, who conducted the
post-mortem examination, opined that the injuries sustained by the
deceased were possible with an axe like M.O.VI. However, he
explicitly stated that he could not confirm whether the same axe was
sent to him for examination, as it lacked any identifying marks. This
uncertainty, coupled with the fact that the chemical examination report
(Ext. 15) was inconclusive regarding the presence of human blood on
M.O.VI, prevents any definitive inference that this was the weapon of
offense. The prosecution's burden was to establish a clear and
unambiguous link between M.O.VI and the crime, yet the absence of
conclusive forensic evidence and the lack of certainty from the expert
witness only serve to weaken their case. Even the prosecution has
failed to prove through the evidence of P.W.5, the sole eyewitness that
M.O.VI was the weapon of offense. In the absence of concrete proof,
M.O.VI cannot be conclusively identified as the weapon of offense,
thereby failing to substantiate the prosecution's claim beyond
reasonable doubt.
17. P.W.10, who was purportedly aware of a past relationship
between the Appellant and the deceased, outrightly denied any
knowledge of the case. The remaining witnesses, including P.W.1 and
P.W.2, primarily spoke about circumstantial aspects, such as prior
disputes with the person in whose house the Appellant used to live in,
but not with the Appellant directly. These contradictions and gaps in
the prosecution's narrative not only diminish the reliability of the
witness testimonies but also fail to establish an unbroken chain of
events pointing exclusively to the guilt of the Appellant.
18. In toto, while the death of the deceased was undoubtedly
proved to be homicidal in nature and deeply tragic, the fundamental
principle of criminal jurisprudence mandates that the prosecution must
establish the guilt of the accused beyond all reasonable doubt. As laid
down in Sharad Birdhi Chand Sarda v. State of Maharashtra
reported in (1984) 4 SCC 116, the burden lies squarely upon the
prosecution to prove the case with conclusive and cogent evidence,
ensuring that there is no scope for any reasonable doubt. In the instant
case, the discrepancies in the eyewitness testimony, the
inconsistencies in the discovery of evidence, and the inconclusive
forensic findings collectively fail to establish an unbroken chain of
circumstances leading solely to the Appellant's guilt. The testimony of
P.W.5, the supposed eyewitness, lacks the sterling quality required for
unassailable reliance, and the alleged confession under Section 27 of
the Evidence Act is fraught with procedural infirmities. Moreover,
while the post-mortem report confirms the homicidal nature of death,
it does not conclusively link the Appellant to the crime. Therefore, in
the absence of unimpeachable and irrefutable evidence, the benefit of
doubt must necessarily go to the Appellant, as no conviction can be
sustained on mere suspicion or weak circumstantial evidence. The
administration of justice demands nothing less than proof beyond
reasonable doubt, and in its absence, the Appellant's culpability
remains unproven.
19. In view of the discussions as above, in our considered view,
the prosecution has not been able to prove its case beyond all
reasonable doubt and is not sufficient to ascribe the guilt on the
Appellant.
20. Accordingly, the judgment and order of conviction dated
02.01.2008 passed by the learned Sessions Judge, Phulbani in
Sessions Trial No.94 of 2005 is hereby set aside. The Appeal is
allowed.
The Appellant, who is on bail by order of this court, is hereby
discharged from liability of bail bonds and the surety bonds shall also
stand cancelled.
(Chittaranjan Dash)
Judge
S.K. Sahoo, J. I agree.
(S. K. Sahoo)
Judge
Orissa High Court, Cuttack. Signed by: SAMIR KUMAR PARIDA
Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY
The 07th day of March, 2025. Reason: Authentic Copy
Location: ORISSA HIGH COURT, CUTTACK
Date: 07-Mar-2025 15:51:11
S.K. Parida, ADR-cum-APS
