Orissa High Court
Bhagban Nayak vs State Of Odisha on 19 March, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.86 of 2009
An appeal from the judgment and order dated 09.12.2008
by the Adhoc Addl. Sessions Judge (F.T.C), Malkangiri in
Criminal Trial No.28 of 2008.
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Bhagban Nayak ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Ms. Mandakini Panda
Advocate
For Respondent: - Miss Subhalaxmi Devi
Addl. Standing Counsel
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P R E S E N T:
THE HON'BLE MR. JUSTICE S.K. SAHOO
AND
THE HON'BLE MISS JUSTICE SAVITRI RATHO
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Date of Hearing and Judgment: 19.03.2025
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By the Bench: The appellant Bhagban Nayak faced trial in the
Court of the learned Adhoc Additional Sessions Judge
(F.T.C.), Malkangiri in Criminal Trial No.28 of 2008 for
JCRLA No.86 of 2009 Page 1 of 30
offence punishable under section 302 of the Indian Penal
Code (in short „I.P.C.‟) on the accusation that on
10.09.2006 at about 7.00 p.m., in his house situated in
village Pedaguda, he committed murder of his wife Radhika
Nayak (hereafter „the deceased‟). The learned trial Court
vide impugned judgment and order dated 09.12.2008,
found the appellant guilty of the offence charged and
sentenced him to undergo imprisonment for life and to pay
a fine of Rs.5,000/- (rupees five thousand), in default, to
undergo R.I. for a further period of six months.
Prosecution Case:
2. The prosecution case, as per the first information
report lodged by P.W.1 Bhaktaram Pujari before the Officer
in- charge of Mudulipada police station on 11.09.2006, in
short, is that on 10.09.2006 in the evening hours at about
7.00 p.m., the appellant dealt five to six tangia blows to the
deceased on her head, ear and back suspecting her
character as a result of which the deceased sustained
bleeding injuries and died and her dead body along with the
dead body of their new born baby of twenty days was lying
JCRLA No.86 of 2009 Page 2 of 30
in the courtyard of the house. The informant received the
information from the co-villager Bhagirathi Nayak and
rushed to the spot and he found the dead bodies lying there
and further found that the appellant was standing there
being armed with a Tangia and was shouting. It is further
stated in the F.I.R. that a village meeting was convened
over this issue and the appellant was asked about the
occurrence and he confessed his guilt and stated to have
killed the deceased by dealing blows with Tangia suspecting
her character. It is further stated in the first information
report that on account of heavy rain in the night on
10.9.2006, the first information report could not be lodged
in the police station and on the next day, the written report
was presented by P.W.1.
On the basis of such written report presented by
P.W.1, Mudulipada P.S. Case No.20 dated 11.9.2006 was
registered under section 302 of Indian Penal Code against
the appellant and Sub-Inspector of Police R.Sabar took up
investigation of the case. On his transfer, the charge of
investigation was taken over by P.W.8 Niranjan Behera,
JCRLA No.86 of 2009 Page 3 of 30
I.I.C., Mudulipada police station on 28.12.2007 who re-
examined some witnesses, sent the exhibits to R.F.S.L,
Berhampur through S.D.J.M., Malkangiri for chemical
examination and on conclusion of investigation, he
submitted charge sheet against the appellant under section
302 of the Indian Penal Code. Since the Sub-Inspector of
Police R.Sabar, who investigated the case from 11.9.2006
till the charge was handed over to P.W.8, the documents
prepared by the said S.I. of police R.Sabar were proved by
P.W.8.
Framing of Charges:
3. After submission of charge sheet, the case was
committed to the Court of Session following due procedure,
where the learned trial Court framed the charge against the
appellant as aforesaid. The appellant pleaded not guilty and
claimed to be tried and accordingly, the sessions trial
procedure was resorted to establish his guilt.
JCRLA No.86 of 2009 Page 4 of 30
Prosecution Witnesses and Exhibits:
4. In order to prove its case, the prosecution
examined eight witnesses and also exhibited seventeen
documents.
P.W.1 Bhaktaram Pujari stated that the appellant
was the husband of the deceased and the deceased died
about two years back. He further stated that two years back
just before the Dusshera, during evening hours, one Moti
Nayak and Bhagirath Naik came and told him that the
appellant had killed his wife by means of a tangia and
hearing the news, they rushed to the house of the appellant
and found the deceased was lying dead in front of the
verandah and found the bleeding injuries on the back side
of her neck and waist. He further stated that on the same
day, the panchayat meeting was held and on being asked,
the appellant confessed before everybody that he suspected
his wife of infidelity and killed her by a Tangia. He further
stated that one Sambu scribed the F.I.R.
P.W.2 Damu Pujari stated that the deceased,
who was the wife of the appellant, died about two years
JCRLA No.86 of 2009 Page 5 of 30
back and on the day of occurrence during evening hours,
one Bhagirathi Naik came and reported that the appellant
had killed the deceased by a Tangia. He further stated that
on hearing the news, they rushed to the house of the
appellant and found the deceased lying on the verandah
with bleeding injuries. He further stated that a meeting was
held in the village pertaining to the incident and the
appellant was called to the meeting and on being
questioned, the appellant admitted his guilt by stating that
he had killed his wife by a Tangia as she was of a bad
character. He is a witness to the seizure of blood-stained
Tangia from the appellant vide Ext.2. He is also a witness to
the seizure of one blood-stained check lungi from the
appellant vide seizure list Ext.3, seizure of blood-stained
earth and sample earth from the spot vide seizure list Ext.4.
He is also a witness to the inquest report so also the
confessional statement of the appellant vide Ext.5 and Ext.6
respectively.
P.W.3 Narasingh Pujari stated that about two
years back, prior to Dusshera, during evening hours, one
Moti Naik came and told him that the appellant had killed
JCRLA No.86 of 2009 Page 6 of 30
the deceased and on hearing such news, he rushed to the
house of the appellant and saw the dead body of the
deceased lying on the verandah with bleeding injuries and a
dead infant child was lying by the side of the deceased. He
further stated that pertaining to the incident, one meeting
was held in the village and the appellant did not come and
after lodging of the F.I.R., when the police came, the
appellant was brought. He is a witness to the inquest
conducted on the dead body of the deceased so also on the
dead body of the deceased‟s infant child vide Ext.5 and
Ext.7 respectively.
P.W.4 Damburudhar Subudhi was a constable
attached to Mudulipada police station, who is a witness to
the seizure of wearing apparels of the deceased, one white
colour saree and one command certificate vide Ext.8.
P.W.5 Dr. Suman Kumar Topno was the Medical
Officer, attached to C.H.C., Khairput stated that on police
requisition, he conducted post mortem examination over
the dead body of the deceased and opined that the cause of
death was due to intracranial hemorrhage due to puncture
of lungs and there was profuse hemorrhage leading to
JCRLA No.86 of 2009 Page 7 of 30
shock and death and the time since death was within 18
hours. He proved the post-mortem examination report vide
Ext.9. He also proved the post-mortem examination report
of the new born child vide Ext.10 and query report vide
Ext.11.
P.W.6 Arjun Naik stated that the deceased was
the wife of the appellant and a new born child of the
appellant and the deceased also died on the date of
occurrence. He further stated that the deceased was
assaulted by the appellant by means of a Tangia on her
neck and other parts of the body for which she died. He
further stated that after the occurrence, there was a
panchayat in the village which was attended to by all the
villagers and on being asked, the appellant admitted his
guilt by saying that he had killed his wife by means of a
Tangia.
P.W.7 Bhagat Samarath narrated more or less
the same version as P.W.6.
P.W.8 Niranjan Behera is the Investigating
Officer in this case.
JCRLA No.86 of 2009 Page 8 of 30
Ext.1 is the F.I.R., Ext.2 is the seizure list in
respect of one blood-stained Tangia, Ext.3 is the seizure list
in respect of one blood-stained lungi of the appellant, Ext.4
is the seizure list in respect of blood-stained earth and
sample earth, Ext.5 is the inquest report, Ext.6 is the
disclosure statement, Ext.7 is the inquest report conducted
over the dead body of the deceased, Ext.8 is the seizure list
in respect of wearing apparels of the deceased, one white
colour saree and one command certificate, Ext.9 is the
post-mortem examination report of deceased, Ext.10 is the
post-mortem examination report of new born child, Ext.11
is the query report, Ext.12 is the forwarding letter, Ext.13 is
the spot map, Ext.14 is the seizure list in respect of nail
clippings of the appellant and a command certificate,
Exts.15 & 16 are the dead body challans and Ext.17 is the
chemical examination report.
Defence plea:
5. The defence plea of the appellant is one of
denial.
JCRLA No.86 of 2009 Page 9 of 30
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 the death of the deceased has been proved to be
homicidal in nature. The learned Trial Court relied upon the
evidence of the witnesses relating to extra judicial
confession made by the appellant in the village panchayat
and came to hold that the extra judicial confession coupled
with leading to the discovery of the weapon of offence
under section 27 of the Evidence Act, chemical examination
report and medical report established the charge under
section 302 of the I.P.C. against the appellant.
Contentions of Parties:
7. Miss. Mandakini Panda, learned counsel
appearing for the appellant argued that there are no eye
witnesses to the occurrence and the case is based on
circumstantial evidence and the evidence adduced by the
witnesses like P.Ws.1, 2, 6 and 7 relating to the confession
in the village panchayat is not trustworthy. P.W.3 has
stated that a meeting was held in the village after the dead
JCRLA No.86 of 2009 Page 10 of 30
bodies were found and the accused did not come to that
meeting and only after the lodging of the F.I.R., when the
police came, the accused was brought. Learned counsel for
the appellant further argued that the evidence on record
indicates that the appellant and the deceased were living
peacefully for eight to nine years and no motive has been
proved on the part of the appellant to commit the crime. So
far as the evidence of leading to discovery of Tangia is
concerned, the concerned Investigating Officer R.Sabar, the
S.I. of Police has not been examined in the trial Court and
only the disclosure statement of the appellant recorded
under section 27 of the Evidence Act vide Ext.6 has been
proved by the prosecution but there is no evidence on
record that on the basis of such disclosure statement, the
appellant led the police party and the witnesses to the place
of concealment of the weapon and produced the weapon,
which was seized and therefore, the recovery cannot be
accepted in law. Moreover, the seized Tangia was sent for
chemical examination and the chemical examination report
vide Ext.17 indicates that no blood was found on the seized
Tangia. It is argued that even if the Tangia in question was
JCRLA No.86 of 2009 Page 11 of 30
seized at the instance of the appellant which had no blood
on it and which was also not produced during trial to be
marked as a material object, the same cannot be utilized as
a circumstance against the appellant since it has not proved
to be the weapon of offence. It is argued that the
circumstances available on record do not form a chain so
complete to come to the irresistible conclusion that it is the
appellant who has committed the crime and therefore, the
impugned judgment is liable to be set aside.
8. Miss. Subhalaxmi Devi, learned counsel for the
State, on the other hand, supported the impugned
judgment and cited decisions of the Hon‟ble supreme Court
in the case of State of U.P. -Vrs.- M.K. Anthony
reported in (1985) 1 Supreme Court Cases 505, Piara
Singh and others -Vrs.- State of Punjab reported in
(1977) 4 Supreme Court Cases 452 and Sahadeven
and another -Vrs.- state of Tamil Nadu reported in
(2012) 6 Supreme Court Cases 403 and submits that if
the extra judicial confession is trustworthy and reliable, the
same can itself be the ground to convict the appellant and
JCRLA No.86 of 2009 Page 12 of 30
the witnesses, who have deposed about the extra judicial
confession, have got no animosity with the appellant to
depose falsehood against him and therefore, learned trial
Court is quite justified in accepting the evidence of these
witnesses and convicting the appellant under section 302 of
the Indian Penal Code.
Appreciation of a case based on circumstantial
evidence:
9. Adverting to the contentions raised by the
learned counsel for the respective parties, there is no
dispute that in the case in hand, there are no eye witnesses
to the occurrence and the case is based on circumstantial
evidence. It is the settled principle of law that where the
case rests upon circumstantial evidence, the inference of
guilt can be justified only when all the incriminating facts
and circumstances are found to be incompatible with the
innocence of the accused or guilt of any other person. In
order to base conviction of an accused basing on
circumstantial evidence, the prosecution is required to firmly
establish each of the circumstances and the circumstances
JCRLA No.86 of 2009 Page 13 of 30
cannot be explained under any other hypothesis, the
circumstances taken together must form a complete chain
so as to unerringly point the finger only at the accused as
perpetrator of crime.
In the case of Sharad Birdhichand Sarda -
Vrs.- State of Maharastra reported in A.I.R. 1984 S.C.
1622, their Lordships have laid down five golden principles
so as to constitute "Panchasheel" in the proof of a case
based on circumstantial evidence 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;
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
JCRLA No.86 of 2009 Page 14 of 30
that in all human probability the act must
have been done by the accused."
Contents of F.I.R.:
10. Though in the F.I.R., it is stated that the
appellant was standing near the dead bodies which were
lying in his courtyard holding Tangia and shouting, but
during trial, nobody has stated in that respect including the
informant. The F.I.R. does not constitute substantive
evidence. It can only be used as to previous statement for
the purpose of either corroborating its maker under section
157 of the Indian Evidence Act or for contradicting him
under section 145 of the Indian Evidence Act.
Extrajudicial confession:
11. The main circumstance appearing in the case is
the extrajudicial confession of the appellant in the village
meeting which is stated to have been held after the
occurrence and the relevant witnesses on this circumstance
are P.Ws.1, 2, 3, 6 and 7.
Though P.Ws.1, 2, 6 and 7 have stated about the
confession being made by the appellant in the village
meeting, but we find that none of them has stated that he
JCRLA No.86 of 2009 Page 15 of 30
was present in the meeting and in his presence, the
appellant confessed his guilt. P.W.1 has stated that the
appellant was called to the meeting and on being asked, he
confessed before everybody that he suspected the deceased
of infidelity and hence he killed her by a Tangia. In the
cross-examination, he has stated that when the meeting
was held, the appellant was hiding and the meeting was
held in the sadar danda of the village. He further stated that
the appellant and the deceased were living together
peacefully. P.W.2 has also stated that the appellant was
called to the meeting and on being questioned, he admitted
his guilt and stated that since the deceased was of bad
character, he killed her by a Tangia. So far as P.W.3 is
concerned, he stated that pertaining to the incident, one
meeting was held in the village, but the appellant did not
come and after lodging of the first information report when
the police came, the appellant was brought. He further
stated in the cross-examination that the appellant and the
deceased were staying peacefully as husband and wife for
about eight to nine years. P.W.6 has stated that after the
occurrence, there was a panchayat in the village which was
JCRLA No.86 of 2009 Page 16 of 30
attended to by all the villagers and the appellant on being
asked, admitted his guilt and stated that he had killed the
deceased by means of a Tangia. In the cross-examination,
he has stated that the appellant and the deceased were
staying as husband and wife and having children and they
had no history of quarreling with each other. P.W.7 has
stated that after the occurrence, there was panchayat in the
village which was attended to by all the villagers and the
appellant on being asked, admitted his guilt saying that he
had killed the deceased by means of a Tangia before
everybody. Though in the evidence of P.W.1 and P.W.2, it
appears that in the meeting, the appellant stated the
reason for killing his wife (deceased) that the evidence of
P.W.6 and P.W.7 is silent in that regard. The evidence of
P.W.3 that the appellant did not come to the meeting place
and he was brought only after the police came to the village
creates doubt in the evidence of the witnesses like P.Ws.1,
2, 6 & 7, who have stated that the appellant came and
made extrajudicial confession in the village meeting.
Law is well settled that extrajudicial confession is
a weak piece of evidence and requires appreciation with a
JCRLA No.86 of 2009 Page 17 of 30
great deal of care and caution. It is to be proved just like
any other fact and the value thereof depends upon the
veracity of the witnesses before whom it is made. The
words of the witnesses must be clear, unambiguous and
should clearly convey that the accused is the perpetrator of
the crime. The Court has to satisfy itself in regard to the
voluntariness of the confession, truthfulness of the
confession and independent reliable corroboration.
Whenever the Court, upon due appreciation of the entire
prosecution evidence, intends to base conviction on an
extrajudicial confession, it must ensure that the same
inspires confidence and is corroborated by other prosecution
evidence. If, however, the extrajudicial confession is
surrounded by suspicious circumstances and suffers from
material discrepancies or inherent improbabilities and does
not appear to be cogent as per the prosecution version, its
credibility becomes doubtful and it loses its importance and
it may be difficult for the Court to base a conviction on such
a confession. In such circumstances, the Court would be
fully justified in ruling such evidence out of consideration.
However an extrajudicial confession, if voluntary and true
JCRLA No.86 of 2009 Page 18 of 30
and made in a fit state of mind, can be relied upon by the
Court and conviction can be founded thereon if the evidence
about the confession comes from the mouth of the
witnesses who appear to be unbiased, not even remotely
inimical to the accused and in respect of whom nothing is
brought out which may tend to indicate that he may have a
motive attributing an untruthful statement to the accused.
It is but a natural curiosity to ask as to why a person of
sane mind should at all confess and what benefit he would
get by making such confession. Extrajudicial confession, in
order to afford a piece of reliable evidence, must pass the
test of reproduction of exact words, the reason or motive
for the confession and the person selected in whom
confidence is reposed.
In the case of M.K. Anthony (supra), the
Hon‟ble Supreme Court has held as follows: -
"15. There is neither any rule of law nor of
prudence that evidence furnished by
extrajudicial confession cannot be relied
upon unless corroborated by some other
credible evidence. The courts have
considered the evidence of extrajudicial
JCRLA No.86 of 2009 Page 19 of 30
confession a weak piece of evidence. (See
Jagta v. State of Haryana : (1974) 4
S.C.C. 747 and State of Punjab v. Bhajan
Singh : (1975) 4 S.C.C. 472). In Sahoo v.
State of U.P. : A.I.R. 1966 S.C. 40, it was
held that 'an extra-judicial confession may
be an expression of conflict of emotion, a
conscious effort to stifle the pricked
conscience; an argument to find excuse or
justification for his act; or a penitent or
remorseful act of exaggeration of his part in
the crime.' Before evidence in this behalf is
accepted, it must be established by cogent
evidence what were the exact words used by
the accused. The Court proceeded to state
that even if so much was established,
prudence and justice demand that such
evidence cannot be made the sole ground of
conviction. It may be used only as a
corroborative piece of evidence.
.......However, in Piara Singh v. State of
Punjab : (1978) 1 SCR 661, this Court
observed that the law does not require that
evidence of an extrajudicial confession
should in all cases be corroborated. It thus
appears that extrajudicial confession
appears to have been treated as a weak
JCRLA No.86 of 2009 Page 20 of 30
piece of evidence but there is no rule of law
nor rule of prudence that it cannot be acted
upon unless corroborated. If the evidence
about extrajudicial confession comes from
the mouth of witness/witnesses who appear
to be unbiased, not even remotely inimical
to the accused, and in respect of whom
nothing is brought out which may tend to
indicate that he may have a motive for
attributing an untruthful statement to the
accused; the words spoken to by the witness
are clear, unambiguous and unmistakably
convey that the accused is the perpetrator of
the crime and nothing is omitted by the
witness which may militate against it, then
after subjecting the evidence of the witness
to a rigorous test on the touchstone of
credibility, if it passes the test, the extra-
judicial confession can be accepted and can
be the basis of a conviction. In such a
situation to go in search of corroboration
itself tends to cast a shadow of doubt over
the evidence. If the evidence of extra-
judicial confession is reliable, trustworthy
and beyond reproach, the same can be
relied upon and a conviction can be founded
thereon."
JCRLA No.86 of 2009 Page 21 of 30
However, we find that in that case, even the
Hon‟ble Supreme Court after holding that if the evidence of
extrajudicial confession is reliable, trustworthy and beyond
reproach, the same can be relied upon and a conviction can
be founded thereon, discussed the other evidence on record
like dying declaration, the leading to discovery of the
weapon of offence etc. and on that basis found that the
prosecution case to be proved.
In the case of Piara Singh (supra), the Hon‟ble
Supreme Court though held that the learned Sessions Judge
erred in law in refusing to rely on the extrajudicial
confession holding that it is a very weak type of evidence
and that law does not require the evidence of an
extrajudicial confession should in all cases be corroborated,
based the conviction relying on the evidence of the eye
witnesses to the occurrence and other materials on record.
In the case of Sahadevan (supra), the Hon‟ble
Supreme Court has relied upon number of decisions of the
Hon‟ble Supreme Court and came to hold that the
extrajudicial confession is a weak evidence by itself and it
has to be examined by the Court with greater care and
JCRLA No.86 of 2009 Page 22 of 30
caution and it should be made voluntarily and should be
truthful and it should inspire confidence. It is further held
that the extrajudicial confession attains the greater
credibility and evidentiary value, if it is supported by a chain
of cogent circumstances and is further corroborated by
other prosecution evidence. For an extrajudicial confession
to be the basis of conviction, it should not suffer from any
material discrepancies and inherent improbabilities. Such
statement essentially has to be proved like any other fact
and in accordance with law.
In the case of Nazir Khan and others -Vrs.-
State of Delhi, reported in (2003) 8 Supreme Court
Cases 461, the Hon‟ble Supreme Court has discussed
about the word „voluntary‟ which means a statement made
of the free will and accord of accused, without coercion,
whether from fear of any threat of harm, promise, or
inducement or hope of reward. The Hon‟ble Court further
held that if the facts and circumstances surrounding in
making of the confession appear to cast a doubt on the
voluntariness of the confession, the Court may refuse to act
upon the confession, even if it is admissible in evidence.
JCRLA No.86 of 2009 Page 23 of 30
The question whether a confession is voluntary or not is
always a question of fact. A free and voluntary confession is
deserving of highest credit, because it is presumed to flow
from the highest sense of guilt.
In the case in hand as discussed above, apart
from the fact that none of the witnesses to the extrajudicial
confession has stated about his presence in the meeting,
there appears to be discrepancies in their statements in as
much as two of the witnesses have stated that while
confessing the guilt, the appellant also stated the reason for
commission of murder whereas the other two witnesses are
completely silent in that regard. P.W.3 has stated that the
appellant did not come to the meeting place at all. The
exact words stated by the appellant have not been deposed
to by any of the witnesses like P.Ws.1, 2, 6 & 7. When the
appellant was hiding and brought to the meeting place and
questioned by the villagers, it is very difficult to accept that
extrajudicial confession made, if any in such a scenario
would be voluntary in nature. The circumstances in which
such confession is stated to have been made, creates doubt
that it was of his own free will and accord of the appellant
JCRLA No.86 of 2009 Page 24 of 30
without any fear or outside influence. Thus, doubt is created
that on his own volition, repenting that he had committed
the crime, the appellant came forward and disclosed before
the villagers present in the meeting place that he had
committed the crime. The duty lies with the prosecution to
prove this sort of evidence in a clear and precise way
particularly the circumstances surrounding the confession.
The Court must consider the age of the individual, his
intelligence, education and mental condition. The length of
interrogation, the presence of any promise or threat and the
presence of any physical or mental coercion are also to be
kept in mind while assessing voluntariness of confession
and whether it is trustworthy. In view of the doubtful
features, we are not inclined to accept the evidence of
P.Ws.1, 2, 6 and 7 relating to extrajudicial confession made
by the appellant in the village meeting to be voluntary and
trustworthy as it has failed to pass the rigorous test on the
touchstone of credibility.
JCRLA No.86 of 2009 Page 25 of 30
Motive:
12. In a case based on circumstantial evidence,
motive assumes pertinent significance as existence of
motive is always an enlightening factor in a process of
presumptive reasoning in such a case. Absence of motive
puts the Court on its guard to scrutinize the circumstances
more carefully to ensure that suspicion and conjecture do
not take the place of legal proof.
In the case in hand, the prosecution has utterly
failed to prove any motive on the part of the appellant. The
evidence of P.W.1 that the appellant and the deceased were
living together peacefully, the evidence of P.W.3 that for
eight to nine years, they were staying together as husband
and wife peacefully and the evidence of P.W.6 that the
appellant and the deceased were having children and there
was no history of quarrelling with each other indicates that
the prosecution has failed to prove any motive on the part
of the appellant to commit the crime.
JCRLA No.86 of 2009 Page 26 of 30
Recovery of Tangia:
13. So far as the recovery of Tangia at the instance
of the appellant is concerned, not a single independent
witness has stated about such recovery at the instance of
the appellant on the basis of his disclosure statement.
P.W.2 who is a witness to the seizure of blood-stained
Tangia from the appellant vide Ext.2 simply stated that
after the F.I.R. was lodged, police came to the village,
effected the seizure. The Investigating Officer, who has
recorded the disclosure statement of the appellant and
prepared the seizure list of the Tangia, has not been
examined by the prosecution. Only the disclosure statement
of the appellant recorded by the previous I.O. has been
proved by the I.O. (P.W.8) who subsequently took over
charge of investigation from S.I. of police R.Sabar. In
absence of any evidence that on the basis of the disclosure
statement, the appellant led the police party and others to
the place of concealment of the weapon of offence and the
place was not accessible to all and in absence of any
evidence that particular weapon was used for commission of
JCRLA No.86 of 2009 Page 27 of 30
crime, the recovery becomes immaterial and it is not
admissible under section 27 of the Evidence Act. In the
chemical examination report vide Ext.17, it appears that no
blood was found on the Tangia. The seized Tangia was also
not produced during trial. Thus, such evidence cannot be
utilized against the appellant.
Conclusion:
14. In view of the foregoing discussions, on the basis
of the available material on record, it cannot be said that
the circumstances have been firmly established by the
prosecution and the circumstances form a complete chain
and from the circumstances, it can be concluded that it was
the appellant and none else who was the author of the
crime. Law is well settled that suspicion, howsoever strong
cannot take the place of proof. Surmises and conjectures
have no place in the matter of legal proof of guilt of an
accused. There is ocean of mental difference between "may
be true" and "must be true" and the same divides
conjectures from sure conclusions. The prosecution must
JCRLA No.86 of 2009 Page 28 of 30
elevate its case from the realm of "may be true" to plane of
"must be true".
Thus, we are of the view that the conviction of
the appellant under section 302 of the Indian Penal Code is
not sustainable in the eye of law and accordingly, the same
is hereby set aside. The JCRLA is allowed and the appellant
is acquitted of the charge under section 302 of the Indian
Penal Code.
Learned counsel for the State has produced the
documents from the jail authority to show that the
appellant is in custody.
The appellant be set at liberty forthwith, if his
detention is not required in any other case.
Lower Court record along with a copy of the
judgment be sent to the concerned Court.
Before parting with the case, we would like to
put on record our appreciation to Ms. Mandakini Panda,
learned counsel for her preparation and presentation of the
case before the Court and rendering valuable help in
arriving at the decision above mentioned. This Court also
JCRLA No.86 of 2009 Page 29 of 30
appreciates the valuable help and assistance rendered by
Ms. Subhalaxmi Devi, learned Additional Standing Counsel
for the State.
...........................
S.K. Sahoo, J.
..............................
Savitri Ratho, J.
Orissa High Court, Cuttack
The 19th March 2025/ Pravakar/Rajesh
Location: HIGH COURT OF ORISSA, CUTTACK
