Orissa High Court
Nilu @ Pramod Kumar vs State Of Odisha on 15 May, 2025
Author: S.K. Sahoo
Bench: S.K.Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.80 OF 2018
An appeal under section 374 Cr.P.C. from the judgment and
order dated 29.06.2018 passed by the Sessions Judge, Jajpur in
C.T. (Sessions) No.486 of 2013.
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Nilu @ Pramod Kumar
Swain ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Sk. Zafarulla
Amicus Curiae
For Respondent: - Mr. Jateswar Nayak
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K.SAHOO
AND
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
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Date of Judgment: 15.05.2025
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S.K. SAHOO, J.: Suspicion is far more to be wrong than right; more
often unjust than just. A hundred suspicions don‟t make a proof.
Suspicion per se may be entirely in the realm of speculation or
Signature Not Verified imagination and may also be without any basis, whereas grave
Digitally Signed
Signed by: SIPUN BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF
ORISSA, CUTTACK
Date: 15-May-2025 11:07:09
JCRLA No.80 of 2018 Page 1 of 44
suspicion is something which arises on the basis of some
acceptable material or evidence. Suspicion is a belief or feeling
that someone has done something wrong, while proof is concrete
evidence that something is true or has happened. Suspicion is
based on doubt and can be subjective, whereas proof is objective
and requires evidence to be established. Suspicion indicates a
possibility, whereas legal proof requires a complete chain of
evidence that leaves no reasonable doubt about the guilt of the
accused. The basic rule of the criminal jurisprudence is that
suspicion against an accused, howsoever strong, coincidence and
grave doubt cannot be a substitute of proof. Always a duty is
cast upon the courts to ensure that suspicion does not take the
place of legal proof.
The case against the appellant, which in absence of
direct evidence, stands wholly on circumstantial evidence, the
prosecution comes up with some circumstances to prove the guilt
of the appellant, whereas the defence rebuts the same and urges
that those circumstances might raise grave suspicion, but the
appellant cannot be convicted solely on the basis of suspicion,
even if it is grave.
2. The appellant Nilu @ Pramod Kumar Swain along
with two others, namely, Deba @ Basudev Das and Rabindra
JCRLA No.80 of 2018 Page 2 of 44
Kumar Dhala faced trial in the Court of learned Sessions Judge,
Jajpur in C.T. (Sessions) No.486 of 2013 for commission of
offences punishable under sections 449/302/34 of the Indian
Penal Code (hereinafter the „I.P.C.‟) for committing house
trespass by entering into the house of the informant Pramod
Lenka (P.W.12) in between 11.00 a.m. of 17.06.2013 and
morning of 18.06.2013 in village Ichhapur under Jajpur police
station in the district of Jajpur and committed murder of the
mother of the informant, namely, Sumitra Lenka (hereinafter
„the deceased‟). That apart, the co-accused Rabindra Kumar
Dhala also faced charge for the offence punishable under section
212/34 of I.P.C. on the accusation that he harboured the
appellant along with co-accused Deba @ Basudev Das knowing
that at the time of said harbouring, those two persons had
already committed the murder of the deceased.
The learned trial Court vide impugned judgment and
order dated 29.06.2018, while acquitting the co-accused
persons, namely, Deba @ Basudev Das and Rabindra Kumar
Dhala of all the charges, found the appellant guilty under
sections 449/302 of the I.P.C. and sentenced him to undergo
rigorous imprisonment for life on both the counts for such
offences and to pay a fine of Rs.5,000/- (rupees five thousand)
JCRLA No.80 of 2018 Page 3 of 44
on each count, in default, to undergo R.I. for a further period of
six months and both the sentences of imprisonment were
directed to run concurrently.
Prosecution Case:
3. The prosecution case, as per the First Information
Report (Ext.3) (hereinafter „F.I.R.‟) lodged by Pramod Lenka
(P.W.12), the son of the deceased before the Inspector in-charge
of Jajpur police station on 18.06.2013, in short, is that on
16.06.2013, P.W.12 had been to the house of his father in-law
along with his wife (P.W.9) and stayed there for two days i.e. on
Sunday and Monday. It is further stated that on Tuesday
morning, P.W.12 received information that his mother was
murdered. Getting such information, P.W.12 along with his wife
(P.W.9) returned back to their house and found that the
deceased was raped and murdered. It is further stated in the
F.I.R. that about a year back, P.W.9 was raped by the appellant
by entering into the house of P.W.12 during night time for which
a rape case was pending against him. The appellant after being
released on bail from jail, had threatened P.W.12 to kill his
family members unless the rape case was withdrawn by him. The
companions of the appellant were arranging a feast till late night
in a club house. On arrival of P.W.12 in his village, he came to
JCRLA No.80 of 2018 Page 4 of 44
know that the appellant along with his companions were
organizing a feast till 11.00 p.m. on the previous night and they
had killed the deceased after committing rape on her. The
appellant and the co-accused Deba Gouda @ Basudev Das had
threatened to kill the deceased.
On the basis of such F.I.R., P.W.22 Asit Ranjan
Mohanty, Inspector in-charge of Jajpur police station registered
the same as Jajpur P.S. Case No.123 dated 18.06.2013 under
sections 457/376/302/34 of the I.P.C. against the appellant and
others and he himself took up investigation of the case.
4. During the course of investigation, on 18.06.2013
P.W.22 examined the informant (P.W.12), visited the spot and
prepared a rough spot map vide Ext.6 and he utilized the dog
squad and scientific team in the investigation of the case. On the
same day, he conducted inquest over the dead body of the
deceased at the spot and prepared the inquest report (Ex.1/3) in
presence of the witnesses. P.W.22 seized one steel Khadika
(M.O.I), a split bamboo stick (M.O.II), a mosquito net (M.O.III),
blood-stained earth (M.O.VI) and sample earth (M.O. VII) at the
spot i.e. inside the house of the deceased and prepared the
seizure list at the spot in presence of the witnesses vide Ext.2/1.
P.W.22 issued dead body challan and made a query to the doctor
JCRLA No.80 of 2018 Page 5 of 44
to ascertain whether death of the deceased could be caused by
the weapon of offence i.e. M.O.I and M.O.II and whether there
was any sign and symptoms of sexual assault on the deceased
vide Ext.7 while sending the dead body of the deceased to
D.H.H, Jajpur for post mortem examination. P.W.22 also seized
saline extract of blood stained cloth of the deceased after being
collected by the scientific team, broken bangles and sample cloth
and prepared the seizure list vide Ext.8. P.W.22 also seized one
red colour saree (M.O.IV) and faded yellow colour petty coat
(M.O.V), vaginal swab of the deceased on production by P.W.18
after being collected from the Medical Officer, D.H.H, Jajpur as
per seizure list Ext.5. During course of investigation, P.W.22
found that the appellant had a motive to commit murder of the
deceased as a criminal case vide Jajpur P.S. Case No.156 dated
25.06.2011 was initiated against him by her daughter-in-law
(P.W.9) on the allegation of commission of rape on her in which
the deceased was an eye witness. On 20.06.2013, P.W.22
arrested the appellant and forwarded him to the Court. On
28.06.2013, P.W.22 sent the exhibits to S.F.S.L., Rasulgarh,
Bhubaneswar for chemical examination and opinion as per the
forwarding letter of the learned S.D.J.M., Jajpur vide Ext.9.
P.W.22 also took the photographs of the deceased at the spot
JCRLA No.80 of 2018 Page 6 of 44
vide Ext.10. On completion of investigation, P.W.22 submitted
charge sheet on 02.09.2013 against the appellant and the two
co-accused persons under sections 449/302/212/34 of the I.P.C.
Framing of charge:
5. After submission of charge sheet, the case was
committed to the Court of Session after complying due committal
formalities. The learned trial Court framed charges against the
appellant along with the two co-accused persons as aforesaid
and since the accused persons refuted the charges, pleaded not
guilty and claimed to be tried, the sessions trial procedure was
resorted to prosecute them and establish their guilt.
Prosecution Witnesses & Exhibits:
6. During course of the trial, in order to prove its case,
the prosecution examined as many as twenty two witnesses.
P.W.1 Mahendra Swain stated that on 05.08.2011,
Friday in the midnight about 1.00 a.m., the appellant trespassed
into the house of the deceased and forcibly raped Ritu Lenka, the
wife of P.W.12. He further stated that the inmates of the house
of Ritu Lenka called them and they went and in that regard, a
police case was registered and the appellant was arrested and
sent to jail. He further stated that after being released on bail,
JCRLA No.80 of 2018 Page 7 of 44
the appellant threatened the deceased to withdraw the case
otherwise she would be murdered. He further stated that the
deceased used to tell him about the threatening given by the
appellant and on 17.06.2013, the appellant in absence of P.W.12
and his wife (P.W.9), entered into the house of the deceased. He
further stated that the appellant had told him near their
Panchayat office that he would murder the deceased. He is a
witness to the inquest conducted over the dead body of the
deceased. However, he was declared hostile.
P.W.2 Pramod Kumar Parida stated that during the
night on 05.08.2011, the deceased came to his house, called him
and told him that the appellant raped her daughter in-law and on
her protest, the appellant escaped. He is a witness to the inquest
conducted over the dead body of the deceased.
P.W.3 Arun Kumar Jena stated that prior to 15 days
of the incident, the deceased told him that the appellant had
threatened to kill her, if she would not withdraw the case. He is a
witness to the seizure of some articles at the spot of occurrence.
P.W.4 Ghanasyam Parida stated that prior to six
months of the murder of the deceased, P.W.12 had told him that
the appellant raped his wife and thereafter, the appellant
remained in custody and after being released on bail, the
JCRLA No.80 of 2018 Page 8 of 44
appellant threatened the deceased to withdraw the case or else
she would be murdered. He further stated that on 16th, the
appellant had threatened to kill her and on the next day, the
appellant murdered the deceased. He further stated that he went
and saw the dead body of the deceased in her house.
P.W.5 Dilip Kumar Muduli stated that one year back,
the deceased was killed and at that time, he was working in his
agricultural filed and on being called by his wife, he went to the
spot and saw a mob of around five hundred villagers gathered at
the spot. He further stated that one year prior to the occurrence,
the appellant had committed rape on the daughter in-law of the
deceased and after being detained in jail around eight to ten
months and released from custody, he threatened the deceased
to withdraw the case otherwise she would face dire
consequences. He further stated that due to previous long
dispute between the deceased and the appellant, all the villagers
stated that the appellant was instrumental in killing the
deceased.
P.W.6 Ananda Behera stated that one year back after
the Raja Festival, the deceased was killed by the appellant due
to previous ill-feeling. He further stated that he had seen the
appellant standing near the house of the deceased in the night of
JCRLA No.80 of 2018 Page 9 of 44
occurrence and he was inside the jail custody for the charge of
rape to the daughter in-law of the appellant and after being
released on bail, he killed the deceased.
P.W.7 Basanta Kumar Mohanty stated that as per the
instruction of P.W.12, he scribed the F.I.R. and the same was
read over and explained to him. He proved the F.I.R. (Ext.3).
P.W.8 Braja Kishore Muduli stated that two years
prior to the incident, the appellant alleged to have raped the
daughter in-law of the deceased for which he was arrested and
taken into judicial custody and after being released on bail, the
appellant terrorized the deceased and pressurized her to
withdraw the case or else her family would be killed. He further
stated that at the time of occurrence, he was working in his filed
and on hearing about the murder of the deceased, he came and
saw a huge gathering and in all probabilities, the appellant might
have killed the deceased as the deceased was under a threat
perception.
P.W.9 stated that the occurrence took place on the
last day of Raja Festival in the year 2013 and in the year 2011,
the appellant forcibly raped her for which she lodged an F.I.R.
against the appellant. She further stated that after lodging of the
F.I.R., the appellant remained behind the bar for about eight
JCRLA No.80 of 2018 Page 10 of 44
months and after being released on bail, he started threatening
her, the deceased and her husband (P.W.12). She further stated
that the appellant threatened her and her family members to
withdraw the case against him or else he would kill each one of
them and set fire to their house. She further stated that on the
date of occurrence, the appellant came to her house and
threatened her and at that time, she got the news of sickness of
her father for which they went to her father‟s house leaving the
deceased alone. She further stated that during her stay in her
father‟s house, she got news that somebody had killed her
mother in-law (deceased) and on returning to her house, she
found her mother in-law lying dead having bleeding injuries on
her head, face and other parts of the body. She further stated
that since the appellant was threatening them before the
occurrence, she apprehended that the appellant was the
perpetrator of the crime.
P.W.10 Soumitra Nayak stated that the deceased
died one year back and he heard from the villagers that the
deceased was subjected to torture and ill-treated at the hands of
the appellant and others. He was declared hostile and was cross-
examined by the prosecution.
JCRLA No.80 of 2018 Page 11 of 44
P.W.11 Abhimanyu Muduli stated that the deceased
died one year back and he heard from the villagers that the
deceased was subjected to torture and ill-treated at the hands of
the appellant and others. He was declared hostile and was cross-
examined by the prosecution.
P.W.12 Pramod Lenka is the son of the deceased and
informant in the case and he stated about the threat given by
the appellant to withdraw the rape case against him and further
stated to have received the news about the murder of the
deceased while he was in his father in-law‟s house.
P.W.13 Hunda @ Sudarsan Swain pleaded his
ignorance about the incident for which he was declared hostile by
the prosecution.
P.W.14 Utkal Keshari Das, who is a social worker,
has stated that on getting information about the killing of the
deceased, he went near the spot and in presence of the police,
he found marks of assault all over the body of the deceased. He
also stated that in the year 2011, the appellant committed rape
on the daughter in-law of the deceased and in the said case, the
appellant was arrested and thereafter he was released on bail.
He further stated that one day, while the deceased was
proceeding to receive her old day‟s pension, she stated before
JCRLA No.80 of 2018 Page 12 of 44
him that the appellant was pressurizing on her to withdraw the
case against him, otherwise she would face with dire
consequences. He is a witness to the inquest report marked as
Ext.1/3.
P.W.15 Sashikant Nayak and P.W.16 Rasika Naik
though stated that they knew the appellant in the dock, but
denied to have any knowledge about the occurrence.
P.W.17 Dr. Sibasis Moharana, who was the Asst.
Surgeon of D.H.H., Jajpur, conducted postmortem examination
over the dead body of the deceased and proved the P.M. report
vide Ext.4.
P.W.18 Prasant Kumar Mallick, was working as
constable at Jajpur police station, who escorted the dead body of
the deceased to the D.H.H., Jajpur for post-mortem examination
and produced the vaginal swab, clothing of deceased obtained
from the doctor before the I.O.
P.W.19 Sarat Chandra Jena, who was the constable
working at Jajpur Town police station, is a witness to the seizure
of four items of the deceased as per the seizure list Ext.5.
P.W.20 Ajay Jena, who was the Home Guard working
under Jajpur police station, has been declared hostile by the
prosecution.
JCRLA No.80 of 2018 Page 13 of 44
P.W.21 Padmanav Das has been declared hostile by
the prosecution.
P.W.22 Asit Ranjan Mohanty, who was the Inspector
in-charge of Jajpur police station, was the Investigating Officer of
the case.
The prosecution exhibited twelve documents. Ext.1/3
is inquest report, Exts.2, 5, and 8 are the seizure lists, Ext.3 is
the written F.I.R., Ext.4 is the post mortem report, Ext.6 is the
spot map, Ext.7 is the dead body challan, Ext.9 is the office copy
of forwarding letter of exhibits, Ext.10 is the photograph of dead
body of the deceased, Ext.11 is the C.E. report and Ext.12 is the
certified copy of judgment in C.T.(Sess.) 343/2011.
The prosecution also proved seven material objects.
M.O.I is the steel Khadika, M.O.II is the split bamboo, M.O.III is
the mosquito net, M.O.IV is the saree, M.O.V is the petty coat,
M.O.VI is the blood-stained earth and M.O.VII is the sample
earth.
Defence Plea:
7. The defence plea of the appellant is one of complete
denial and it is stated that on suspicion, he has been falsely
implicated in the case due to political rivalry. The defence neither
examined any witness nor exhibited any document.
JCRLA No.80 of 2018 Page 14 of 44
Circumstances available against the appellant:
8. The learned trial Court has noted down the following
circumstances to have been relied upon by the prosecution:
(i) There was strong motive of the accused namely
Nilu Swain to kill the deceased due to launching of
prosecution of a rape case against him;
(ii) The accused Nilu Swain was threatening the
deceased again and again to murder her unless a
rape case filed against him was withdrawn;
(iii) P.W.6 had seen the accused Nilu standing near
the house of the deceased at about 1.30 a.m. in the
relevant night of occurrence;
(iv) P.W.1 has stated that on 17.06.2013, in absence
of Ritu Lenka and her husband, accused Nilu Swain
had entered into the house of the deceased;
(v) Accused Nilu Swain had told P.W.1 near
Panchayat Office that he would murder the deceased;
(vi) The Medical Officer (P.W.17) who conducted
autopsy, while issuing the postmortem report (Ext.4)
categorically stated that the death of the deceased
JCRLA No.80 of 2018 Page 15 of 44
was homicidal which was due to neurogenic shock as
a result of severe trauma to vital organ like brain;
(vii) Ext.4 reveals that on a query being made by
the Investigating Officer (P.W.22), the doctor
conducting post mortem opined that the injuries
found on the persons of the deceased could be
possible by weapon of offence i.e. bamboo stick and
steel Khadika;
(viii) There was a stain of blood on the seized
weapons of offence;
(ix) There was failure of the said accused to offer
any explanation in respect of the incriminating
circumstances as narrated above, which, according to
the prosecution, can be counted as providing missing
links for completing the chain of circumstances;
(x) The seized weapons of offence (M.O.I & II) and
other articles (M.O. III to VII) were produced in the
Court and the same were identified by the I.O. during
course of his evidence.
JCRLA No.80 of 2018 Page 16 of 44
Findings of the Trial Court:
9. The learned trial Court after assessing the oral as
well as documentary evidence on record came to hold that the
prosecution has successfully established and proved the vital
incriminating circumstances against the appellant. It further held
that there was initiation of rape case against the appellant on
F.I.R. being filed by P.W.9 and the appellant was continuously
pressurizing the deceased with the threat of murder for
withdrawal of that case and neither the victim nor the deceased
had withdrawn the said case. In spite of threat of murder by the
appellant, the prosecution has succeeded in establishing the
strong motive on the part of the appellant for committing the
murder of the deceased.
The learned trial Court has further held that the
prosecution has successfully established the circumstance
relating to the conduct of the appellant as to his presence near
the house of the deceased at about 1.30 a.m. on the relevant
night of occurrence as per the evidence adduced by P.W.1 and
P.W.6 respectively and the time gap between the appellant being
seen near the spot and the death of deceased is so proximate,
the possible inference would be that the appellant was
responsible for commission of murder of the deceased.
JCRLA No.80 of 2018 Page 17 of 44
The learned trial Court has further held that from the
evidence of P.W.17, the death of the deceased was proved to be
homicidal in nature and stain of blood of human origin was found
on the wearing apparels of the deceased and as per the Ext.4,
the injuries found on the dead body of the deceased could be
possible by the seized weapons. It was held that missing link to
connect the appellant with the alleged crime is complete by his
not explaining the incriminating circumstances pointed out
against him.
The learned trial Court further held that prosecution
has succeeded in proving the circumstances and those proved
circumstances are sufficient to form a chain, so complete that
there was no escape from the conclusion that the appellant had
committed the murder of the deceased on the relevant night of
occurrence. The learned trial Court further held that the murder
of the deceased was committed after trespassing into her house
with intention to commit such offence.
The learned trial Court further held that there is lack
of sufficient evidence to hold the accused persons, namely, Deba
Gouda and Rabindra Kumar Dhal guilty of the alleged offences
and there is no substantive evidence to reveal that the murder
was committed in consequence of common intention of the
JCRLA No.80 of 2018 Page 18 of 44
accused persons and such ingredients of common intention
under section 34 of the I.P.C. are not made out in the case to
hold vicarious liability of the accused persons for the offence
committed by the appellant.
The learned trial Court further held that there is no
material whatsoever to show that the co-accused Rabindra
Kumar Dhal had the knowledge or that he reasonably believed
that he was harbouring or concealing a person who was an
offender. The essential feature of secrecy is totally absent and
there is also no allegation in the F.I.R. or any specific evidence
on record on this aspect and therefore, it was held that the
prosecution has failed to prove the offence under section 212
I.P.C. against the accused Rabindra Kumar Dhal.
Contentions of the Parties:
10. Sk. Zafarulla, learned counsel appearing for the
appellant submitted that the circumstance nos.(vi), (vii), (viii)
and (x) as jotted down by the learned trial Court in the
impugned judgment are not disputed. However, he submitted
that the motive on the part of the appellant to kill the deceased
due to the launching of the rape case against him is very difficult
to be accepted. He argued that so far as the rape case is
JCRLA No.80 of 2018 Page 19 of 44
concerned, the occurrence in question took place in the
intervening night of 5/6.08.2011 and the appellant faced trial in
the Court of learned Sessions Judge, Jajpur in C.T. Case No. 343
of 2011 and vide judgment and order dated 02.02.2017, he was
found guilty under sections 450/376 of the I.P.C. and sentenced
accordingly. In the said case, the appellant was taken into
judicial custody in the year 2011 and after eight months, he was
released on bail and there is no clinching evidence on record that
soon before the occurrence in this case, the appellant was giving
any threat to the deceased to withdraw the rape case against
him. Moreover, in the rape case, the victim (P.W.9) and her
husband (P.W.12) were the main witnesses and it would appear
from the judgment of that case which has been marked as
Ext.12 that the conviction of the appellant was based on the
evidence of those two witnesses and therefore, the threat given
by the appellant to the deceased and commission of her murder
in the absence of those two vital witnesses in the house in the
occurrence night is not believable.
Mr. Zafarulla further argued that even though P.W.1
stated that appellant entered into the house of the deceased on
17.06.2013, but he has not stated to have seen it and further
not stated about the time of such entry. Similarly, the evidence
JCRLA No.80 of 2018 Page 20 of 44
of P.W.6 that he had seen the appellant standing near the house
of the deceased in the night of occurrence at about 1.30 a.m. in
the night, is not sufficient by itself to hold the appellant guilty.
According to him, the learned trial Court was not justified in
holding the appellant guilty of the offences charged as the
circumstances taken together do not form a complete chain and
therefore, benefit of doubt should be extended in favour of the
appellant.
The learned counsel relied upon the ratio laid down in
the case of Sharad Birbhichand Sarda -Vrs.- State of
Maharashtra reported in A.I.R. 1984 Supreme Court 1622,
Gambhir -Vrs.- State of Maharashtra reported in A.I.R.
1982 Supreme Court 278 and Gedu @ Paramaswar Patra
-Vrs.- State of Orissa reported in (2016) 65 Orissa
Criminal Reports 159.
11. Mr. Jateswar Nayak, learned Addl. Government
Advocate, on the other hand, supported the impugned judgment
and argued that when the prosecution has established a strong
motive on the part of the appellant to commit the crime and the
appellant was continuously threatening the deceased to withdraw
the rape case filed against him which is deposed to by a number
of witnesses, in view of the evidence of P.W.1 and P.W.6 that on
JCRLA No.80 of 2018 Page 21 of 44
the night of occurrence, the appellant was present near the
house of the deceased while her son (P.W.12) and daughter in-
law (P.W.9) were not present in the house and entered into the
house and that the dead body was found on the next day
morning and it was a case of homicidal death as per the doctor‟s
evidence and the appellant has not offered any satisfactory
explanation regarding these incriminating circumstances in his
accused statement, the learned trial Court is wholly justified in
holding the appellant guilty.
Whether the death of the deceased was homicidal:
12. Adverting to the contentions raised by the learned
counsel for the respective parties, let us first discuss the
evidence on record as to whether the prosecution has proved
that the deceased met with a homicidal death.
P.W.22, the I.O. conducted inquest over the dead
body of the deceased at the spot and prepared inquest report in
presence of the witnesses and the inquest report has been
marked as Ext.1/3.
P.W.17, the doctor who conducted post mortem
examination has noticed number of lacerated wounds on
different parts of the body of the deceased and haematoma on
JCRLA No.80 of 2018 Page 22 of 44
the right side of the head extending from right eye brow to right
temporoparietal region, comminuted fracture of temporal bone
on the right side so also bleeding from both the ears suggesting
intracranial bleeding and the injuries were opined to be ante
mortem in nature and caused by hard and blunt object. The
cause of death has been opined due to neurogenic shock as a
result of severe trauma to vital organ like brain and the nature of
death was homicidal.
Though there was an allegation for commission of
offence of rape on the deceased at the time of lodging of F.I.R.
for which the case was also registered under section 376 of the
I.P.C., but the doctor found that there was no external injury on
vaginal wall, thigh and vaginal canal and no material also came
during the course of investigation regarding commission of rape
on the deceased for which the offence under section 376 of
I.P.C. was deleted from the charge sheet.
P.W.17 proved the post-mortem examination report
as Ext.4. There is no challenge to the findings of the doctor by
the learned counsel for the appellant.
On the basis of the inquest report, evidence of the
doctor and post mortem examination report, I am of the view
JCRLA No.80 of 2018 Page 23 of 44
that the learned trial Court rightly held the death of the deceased
to be homicidal in nature.
One bamboo stick and one steel khadika were seized
by the I.O. (P.W.22) inside the house of the deceased and those
were sent to the doctor (P.W.17) for his examination and opinion
regarding possibility of injuries sustained by the deceased with
such weapon and the doctor has opined the same to be in
affirmative in the post mortem report (Ext.4).
Motive:
13. The prosecution case is that a rape case was
instituted against the appellant in the year 2011 for commission
of rape on P.W.9, the daughter in-law of the deceased and the
appellant was taken into judicial custody in connection with the
said case. After being released on bail in that case, the appellant
was putting pressure on the deceased and her family members
to withdraw the case, but since the pressure did not yield any
fruitful result, he committed murder of the deceased. In view of
the certified copy of the judgment in C.T. (Sess.) No. 343 of
2011 as well as the evidence of the victim (P.W.9) and her
husband (P.W.12), the learned trial Court came to hold that the
prosecution has established the motive behind the commission of
JCRLA No.80 of 2018 Page 24 of 44
the crime. I am also of the view that the finding of the learned
trial Court that there was motive behind the crime has been
satisfactorily proved against the appellant.
Law is well settled that motive indicates high degree
of probability of commission of offence by the person concerned.
It provides foundational material to connect the chain of
circumstances. Of course, motive alone would not be sufficient to
hold an accused guilty. Proof of motive for doing a criminal act is
generally a difficult area for the prosecution as one cannot
normally see into the mind of another. Absence of motive or
existence of inadequate motive is not very much important
where there exists absolutely cogent evidence that a crime has
been committed by an accused.
Therefore, even if it is held that the prosecution has
proved the motive on the part of the appellant to commit the
crime, but since it is a case based on circumstantial evidence, it
is to be carefully scrutinised what further materials are brought
on record by way of clear and cogent evidence by the
prosecution to complete the chain of circumstances and to
establish the guilt of the appellant.
JCRLA No.80 of 2018 Page 25 of 44
Threat given by the appellant to the deceased and her
family members:
14. It is the prosecution case that since the rape case
which was initiated against the appellant was not withdrawn,
even though the appellant put pressure in that respect on the
deceased and her family members, he was threatening the
deceased with dire consequences.
P.W.1 has stated that the appellant threatened the
deceased to withdraw the case, otherwise she would be
murdered and the deceased used to tell him about the same. In
the cross-examination, he has stated that prior to one month of
the murder of the deceased, the appellant had told him that he
would murder the deceased, however, he did not inform about
the threatening at the police station.
P.W.4 has stated that after the appellant was
released on bail in the rape case, he threatened the deceased to
withdraw the case, otherwise, she would be murdered and the
deceased had told him about the same and on 16th, the appellant
threatened the deceased to kill her. In the cross-examination,
P.W.4 has stated that on 16th, the deceased told him in his house
in presence of his wife and daughter-in-law that the appellant
had threatened her to kill.
JCRLA No.80 of 2018 Page 26 of 44
P.W.5 has also stated about the threat given by the
appellant to the deceased.
P.W.9, the daughter in-law of the deceased has
stated that on the last day of Raja festival in the year 2013, the
appellant came to her house and threatened her to withdraw the
case or he would kill each of the family members. In the cross-
examination, she has stated that no one was present when the
appellant threatened her and her family members.
P.W.12, the son of the deceased has also stated
about the threat given by the appellant on the last day of Raja
by coming to his house to withdraw the case or he would kill the
family members.
P.W.14 has stated that appellant met him and told
him to ask the deceased to withdraw the case or else she would
face dire consequences.
In view of the evidence of the aforesaid witnesses,
which have remained unchallenged, I am of the view that the
learned trial Court has rightly came to the conclusion that the
appellant was threatening the deceased again and again to
commit her murder unless the rape case filed against him was
withdrawn.
JCRLA No.80 of 2018 Page 27 of 44
Presence of the appellant near the house of the deceased:
15. The evidence of two witnesses, i.e., P.W.1 and P.W.6
are very relevant on this aspect.
P.W.6 has stated that he had seen the appellant
standing near the house of the deceased in the night of
occurrence. In the cross-examination, he has stated that while
going to attend call of nature in the night at about 1.30 a.m., he
had seen the appellant and there was none else with the
appellant. In the 313 Cr.P.C. statement, the appellant was
questioned regarding this circumstance which was deposed to by
P.W.6 against him, but the appellant denied the same.
P.W.1 has stated that in the absence of P.W.9 and
her husband (P.W.12), the appellant entered into the house of
the deceased on 17.06.2013. However, he has not stated that he
was present near the house of the deceased and had seen the
appellant entering into the house of the deceased. He has also
not stated at what time, the appellant entered into the house of
the deceased. From his evidence, it does not appear that he had
any direct knowledge about the entry of the appellant into the
house of the deceased. If he had no direct knowledge about the
same and he has not stated from which source, he came to know
JCRLA No.80 of 2018 Page 28 of 44
about this aspect, it would be very difficult to place any reliance
on such evidence. Though in the cross-examination, P.W.1 has
stated to have disclosed about the threat given by the appellant
to kill the deceased before number of persons including the
Sarpanch and Ward Member, but he has not stated to have
disclosed before anyone to have seen the appellant entering into
the house of the deceased on 17.06.2013.
Therefore, the evidence of P.W.1 that the appellant
entered into the house of the deceased in the occurrence night is
not acceptable. No one else has stated about the appellant
entering into the house of the deceased in the occurrence night.
No proof was found from inside the house of the deceased that
the appellant had entered into the house.
Needless to say, the initial case of the prosecution
was that all the three accused including the appellant in
furtherance of their common intention, entered inside the house
of the deceased and committed the crime, even the charge was
also framed under section 449/34 of I.P.C., which has been
given a go-bye during trial, rather it has been put forth through
the evidence of P.W.1 that it was the appellant alone who
entered into the house of the deceased in the occurrence night,
which is not acceptable as has been discussed above.
JCRLA No.80 of 2018 Page 29 of 44
Section 449 of I.P.C. deals with house-trespass in
order to commit offence punishable with death. The key
elements to establish a charge under this offence is firstly, the
house-trespass as defined under section 442 of I.P.C. and
secondly, the intention of house trespass is to commit any
offence punishable with death. Since from the evidence of P.W.1,
offence of „house-trespass‟ is not established, the conviction of
the appellant under section 449 of I.P.C. is totally misconceived.
Neither P.W.1 nor P.W.6 has stated to have seen any
weapon in the hands of the appellant particularly the steel
khadika (M.O.I) and split bamboo stick (M.O.II) which were
found inside the spot house and were seized by the I.O. No step
has been taken to collect any finger print from the seized objects
collected at the spot. If the deceased who was an aged lady was
in the house alone in absence of her son (P.W.12) and daughter
in-law (P.W.9), how then the appellant in the dead hour of night
entered into her house? The I.O. has not stated to have noticed
any sign of forceful entry by anyone into the house of the
deceased. If P.W.1 and P.W.6 had seen the appellant present at
the odd hour of night near the house of the deceased and on the
next day morning, the dead body was found and about five
hundred persons gathered at the spot as stated by P.W.5, it was
JCRLA No.80 of 2018 Page 30 of 44
expected of them to disclose the same before others. Not a
single witness has stated that either P.W.1 or P.W.6 made any
such disclosure.
In the case of Sharad Birdhichand Sarda -Vrs.-
State of Maharashtra (supra), the Hon‟ble Supreme Court
while laying down the five golden principles to constitute
panchsheel of the proof of a case based on circumstantial
evidence, has emphasized that 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.
In the case in hand, even though the prosecution has
proved the motive on the part of the appellant so also the threat
given by him to the deceased and even if the presence of the
appellant at the odd hour of the night near the house of the
deceased on the date of occurrence is taken into account, but in
absence of any other clinching evidence on record, it is very
difficult to hold that the appellant is author of the crime. The
chain of evidence is not so complete to come to an irresistible
conclusion that the appellant alone, and none else, committed
the crime. The circumstances are not proved to be conclusive in
JCRLA No.80 of 2018 Page 31 of 44
nature. As is often said, there is a long mental distance between
„may be true‟ and „must be true‟ and it divides sheer surmises
and conjectures from sure conclusions and the whole of this
distance must be covered by legal, reliable and unimpeachable
evidence before an accused can be convicted.
In the case of Gambhir (supra), it has been held
that there might be suspicion against the accused, but suspicion
cannot take the place of evidence.
In the case of Gedu @ Parameswar Patra (supra),
it has been held that while assessing a case based on
circumstantial evidence, the Court has a duty to see that the
circumstances on which the prosecution relies must be proved
beyond all reasonable doubt and such circumstances must be
capable of giving rise to an inference which is inconsistent with
any other hypothesis except the guilt of the accused. It is only in
such an event that the conviction of the accused, on the basis of
circumstantial evidence brought by the prosecution, would be
permissible in law.
In view of the evidence on record, the presence of
the appellant near the house of the deceased in the dead hour of
night of occurrence so also his motive and threat given to the
JCRLA No.80 of 2018 Page 32 of 44
deceased previously might raise suspicion, but reasonable
suspicion is a standard lower than probable cause, requiring
specific, articulable facts that, when considered with the totality
of circumstances, lead a reasonable person to believe that a
crime has been, is being, or is about to be committed. Law is
well settled that fouler the crime, the higher should be the proof.
In the absence of legal proof of a crime, on the basis of strong
suspicion and speculation, there can be no legal criminality.
Emotional consideration and moral conviction regarding the
involvement of the appellant in the commission of the crime
cannot be a substitute for a legal verdict based upon facts and
law.
Conclusion:
16. In view of the foregoing discussions, in the facts and
circumstances of the case, I am not able to agree with the
findings of the learned trial Court and accordingly I hold that the
case against the appellant has not been established beyond all
reasonable doubt.
In the result, the JCRLA is allowed and the impugned
judgment and order of conviction and the sentence passed
thereunder is hereby set aside and the appellant is acquitted of
JCRLA No.80 of 2018 Page 33 of 44
the charges under sections 449/302 of I.P.C. The appellant is in
jail custody since 02.08.2013. He is directed to be released
forthwith, if his detention is not otherwise required in connection
with any other case.
Trial Court records with a copy of this judgment be
sent to the concerned Court forthwith for information and
necessary action.
Before parting with the judgment, we put on record
our appreciation to Sk. Zafarulla, learned counsel for the
appellant for rendering his valuable assistance in arriving at the
above decision. The learned Amicus Curiae shall be entitled to
the professional fees which is fixed at Rs.10,000/- (rupees ten
thousand). This Court also appreciates Mr. Jateswar Nayak,
learned Additional Government Advocate for ably and
meticulously presenting the case on behalf of the State.
.................................
S.K. Sahoo, J.
Savitri Ratho, J.: I have gone through the judgment of my esteemed
brother Mr. S.K Sahoo, J., setting aside the conviction of the
appellant under Sections 302/449 of the I.P.C., and agree with
the same.
2. I have decided to write a separate order
supplementing the well written judgment of my esteemed
brother, as initially in view of the prosecution case and the
circumstances relied upon by the learned trial Court, more
specifically the threats which had been given by the appellant to
kill the deceased and her family members after being implicated
in a rape case by P.W.9, the daughter in-law of the deceased, if
the case against him was not withdrawn and as P.W.1 and P.W.6
had seen the appellant near the house of the deceased on the
night of occurrence, I was of the view that the chain of
circumstances against the appellant is complete, for which he
has been rightly convicted by the learned trial Court for
committing the murder of deceased Sumitra Lenka.
3. My dilemma has been best described by Justice Vinod
Chandran in a recent judgment in the case of Renuka Prasad
vs. State represented by Assistant Superintendent of
Police : 2025 SCC Online Sc 1074 : 2025 INSC 657. The
relevant portions of the judgment are extracted below:
"1. Prevaricating witnesses, turning hostile in
Court and overzealous investigations, done in
total ignorance of basic tenets of criminal law,
often reduces prosecution to a mockery.
Witnesses mount the box to disown prior
statements, deny recoveries made, feign
ignorance of aggravating circumstances spoken
of during investigation and eye witnesses turn
blind. Here is a classic case of 71 of the total 87
witnesses including eye-witnesses, turning
hostile, leaving the prosecution to stand on the
testimony of the police and official witnesses.
Even a young boy, the crucial eyewitness, who
saw his father being hacked to death, failed to
identify the assailants."
xx xx xx xx xx
"47. We quite understand the consternation of
the learned Judges, in the cold-blooded murder
of a person, carried out in front of his own son
where the investigation though elaborate, it
collapsed miserably at the trial, where the
prosecution witnesses; all of them, turned
hostile. We share the consternation of the
learned Judges but that is no reason for us to
rely on Section 161 statements or the story
scripted by the investigating agency based on
the so called voluntary statements and the
recoveries made, which the prosecution failed to
prove to have a nexus with the crime."
xx xx xx xx xx
"49. We cannot but say that the High Court has
egregiously erred in convicting the accused on
the evidence led and has jumped into
presumptions and assumptions based on the
story scripted by the prosecution without any
legal evidence being available. Truth is always a
chimera and the illusion surrounding it can only
be removed by valid evidence led, either direct
or indirect, and in the event of it being
circumstantial, providing a chain of
circumstances with connecting links leading to
the conclusion of the guilt of the accused and
only the guilt of the accused, without leaving
any reasonable doubt for any hypothesis of
innocence. We can only accede to and share the
consternation of the Division Bench of the High
Court, which borders on desperation, due to the
futility of the entire exercise. That is an
occupational hazard, every judge should learn to
live with, which cannot be a motivation to tread
the path of righteousness and convict those
accused somehow, even when there is a total
absence of legal evidence; to enter into a purely
moral conviction, total anathema to criminal
jurisprudence. With heavy heart for the unsolved
crime, but with absolutely no misgivings on the
issue of lack of evidence, against the accused
arrayed, we acquit the accused reversing the
judgment of the High Court and restoring that of
the Trial Court".
4. After careful examination of the evidence of the
witnesses, the judgment of the learned trial Court and the
judgment of my brother, I found that there are some missing
links in the chain of circumstances for which the conviction of the
appellant under Sections 449/302 I.P.C. cannot be sustained.
Arriving at this conclusion has taken some time, causing some
anxiety to my brother, which I regret. But I could not have let
the appellant go scot free, without being satisfied that he
deserved to be acquitted.
Circumstances against the deceased:
5. The evidence of the witnesses have been discussed
in extenso by my esteemed brother and the ten circumstances
which have been relied upon by the prosecution have also been
mentioned in the judgment of my esteemed brother, hence I am
not reiterating the same. The important circumstances out of
these are:-
i) The threats given by the appellant to murder the
deceased and her family members if they did not
withdraw the rape case initiated by P.W.9;
ii) The appellant was seen by P.W.6 outside the
house of the deceased on the date of occurrence and
the time gap between his presence and her death
was proximate;
iii) Death of the deceased was homicidal in nature;
iv) The injuries on the deceased were possible by the
seized weapon of offence;
v) The appellant did not explain the incriminating
circumstances alleged against him;
Other relevant circumstances:
6. The circumstances which caused slivers of doubt to
enter my mind in order to independently arrive at a conclusion
that the chain of circumstances do not conclusively establish that
it was only the appellant and none else, who could have
committed the murder are as under:-
i) Co-accused Deba @ Basudev Das and Rabindra
Dhala had faced trial along with the appellant and
have been acquitted of all charges;
ii) The appellant and Deba @ Basudev Das had
been charged under Section 449/34 I.P.C. for
committing house trespass by entering into the
house of the informant Pramod Lenka in order to
commit the offence of murder in furtherance of their
common intention and under Section 302/34 I.P.C.
for intentionally committing the murder of Sumitra
Lenka in furtherance of their common intention;
iii) Co-accused Rabindra Kumar Dhala had been
charged for the same offences along with the offence
punishable under Section 212/34 I.P.C for harbouring
the appellant and Deba Gouda knowing that they had
committed the murder of deceased Sumitra Lenka in
furtherance of their common intention;
iv) There is therefore no separate charge against
the appellant for the offence under Section 302 I.P.C.
or under Section 449 I.P.C., but he has been
convicted for commission of offences punishable
under Sections 449/302 I.P.C. while co-accused
Rabindra Kumar Dhala and Deba @ Basudev Das
have been acquitted of all charges;
v) P.W.6 had stated that he had seen the appellant
standing outside the house of the deceased at about
1.30 am on the night of occurrence and before the
incident he was in jail custody for the charge of rape
of daughter in-law of Sumitra and after his release
from jail, killed Sumitra. He did not tell this to any of
the villagers who had gathered at the spot;
vi) It is forthcoming from the cross-examination of
P.W.1 and P.W.9, that that during investigation, they
had stated about threats given by co-accused Deba
who stays behind the house of the deceased;
vii) P.W.1 has been cross-examined by the
prosecution and denied that he had stated that Deba
stays behind house of the deceased and had
threatened the deceased to go away and that Deba
and the appellant had entered her house and
murdered her by giving successive blows;
viii) P.W.9 the daughter in-law of the deceased in
her cross examination at paragraph 5 has stated as
follows:
"It is not a fact that I have not stated to the
police that both accused Deba and Nilu
threatened to kill us and both of them
sitting in the village club conspired against
us to kill us and that both Deba and Nilu
assaulted my husband and killed him."
Twenty two witnesses have been examined by
the prosecution, but out of them P.Ws.1, 10, 11, 12,
15, 16, 20 and 21 have been declared hostile by the
prosecution case as they did not support the
prosecution case.
ix) P.W.22, the I.O. has stated at paragraphs 17
and 18 that P.W.5 had stated about existence of prior
dispute between the deceased and co-accused Deba,
which are extracted below.
"17. It is a fact that P.W.5 had stated
before me that there was ill feeling between
Deba Das, the immediate neighbour of
Sumitra, who threatened Sumitra to oust
her.
18. There was previous dispute with the
accused Deba Das and the deceased
Sumitra in connection with land. My
investigation not directed to ascertain
ownership of land over which the deceased
had constructed her house."
7. I deem it apposite to quote from a decision of the
Supreme Court in the case of State of Punjab vs. Kewal
Krishna : (2023) 13 SCC 695, where the acquittal of the
accused by the High Court was confirmed by the Supreme Court,
holding as follows :
"22...In a case based on circumstantial evidence
not only do each of the incriminating
circumstances have to be proved beyond
reasonable doubt but those incriminating
circumstances must constitute a chain so far
complete that there is no escape from the
conclusion that within all human probability it is
the accused who has committed the crime and
further, cumulatively, they must exclude all
hypotheses consistent with the innocence of the
accused and inconsistent with his guilt. As we
have found that the incriminating circumstances
were not proved beyond reasonable doubt and
otherwise also the circumstance of last seen was
inconclusive, in our view, the High Court was
justified in setting aside the order of conviction
recorded by the Trial Court.
23. Section 106 of the Evidence Act does not
absolve the prosecution of discharging its
primary burden of proving the prosecution case
beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed,
will sustain a conviction, or which makes out a
prima facie case, the question arises of
considering facts of which the burden of proof
would lie upon the accused (See: Shivaji
Chintappa Patil vs. State of Maharashtra
(2021) 5 SCC 626). Here, as we have
discussed above, firstly, the incriminating
circumstances were not proved beyond
reasonable doubt and, secondly, they do not
form a chain so complete from which it could be
inferred with a degree of certainty that it is the
accused and no one else who, within all human
probability, committed the crime. In these
circumstances, there was no occasion to place
burden on the accused with the aid of section
106 of the Evidence Act to prove his innocence
or to disclose that he parted company of the
deceased before his murder."
....................................
Savitri Ratho, J.
Orissa High Court, Cuttack
The 15th May 2025/PKSahoo
