Orissa High Court
Prasanta Kumar Sahoo vs State Of Odisha on 9 October, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRA No.229 of 2000
An appeal under section 374 of Cr.P.C. from the judgment and
order dated 23.08.2000 passed by the Sessions Judge, Khurda at
Bhubaneswar in S.T. Case No.161 of 1998.
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Prasanta Kumar Sahoo ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Sashibhusan Das
Dr. Biplab S.
Mr. S.Padhi, Advocates
For Respondent: - Mr. Partha Sarathi 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 MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing: 16.09.2025 Date of Judgment: 09.10.2025
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S.K. Sahoo, J. The appellant Prasanta Kumar Sahoo faced trial in
the Court of learned Sessions Judge, Khurda at Bhubaneswar in
S.T. Case No.161 of 1998 for commission of offences punishable
CRA No.229 of 2000 Page 1 of 59
under sections 302/201/34 of the Indian Penal Code (hereinafter
'I.P.C.') on the accusation that on 13.08.1996 night at village
Banchhara under Jatni police station in the district of Khurda, he
along with his wife Smt. Santilata Sahu, in furtherance of their
common intention, committed murder of Jadu Sahu (hereinafter
'D-1') and Pitei Sahu (hereinafter 'D-2') by intentionally causing
their death and also knowing or having reason to believe that the
offences had been committed, they caused certain evidence
connected with the said offences to disappear by knowingly
giving false information to the police on 14.08.1996 with the
intention to screen themselves from legal punishment.
The learned trial Court vide impugned judgment and
order dated 23.08.2000, found the appellant guilty of the
offences charged and sentenced him to undergo imprisonment
for life for the offence under section 302 of the I.P.C. and to
undergo R.I. for a period of five years for the offence under
section 201 of the I.P.C. and both the offences were directed to
run concurrently.
Prosecution Case:
2. The prosecution case, shorn of unnecessary details,
is that the deceased couple (D-1 and D-2) were issueless and
they adopted the appellant, who was the son of the sister of D-2
CRA No.229 of 2000 Page 2 of 59
on 01.02.1993 as their son and executed a registered deed of
adoption (Ext.13). The appellant along with his first wife
Bijayalaxmi Sahu were residing with the deceased couple in their
house at village Banchhara. The appellant deserted his first wife
and married to the co-accused Santilata Sahu and brought her to
the house of the deceased couple at the teeth of their opposition
sowing the seeds of discord. There was also bickering amongst
them as the appellant was insisting for recording the properties
of the adoptive father (D-1) in his name. The appellant with his
wife (co-accused Santilata Sahu) started living in separate mess
in the same house where both the deceased couple (D-1 and D-
2) were also residing.
It is the further prosecution case that in the
intervening night of 13/14.08.1996 on the day of 'Chitalagi
Amabasya', the appellant and his second wife Santilata attacked
the deceased couple in their bed room killing D-1
instantaneously and critically injuring D-2 who lost her sense.
On 14.08.1996 at about 6.10 a.m., the appellant
lodged a written F.I.R. (Ext.14) at Jatni police station stating
therein that D-1 and D-2 were a squabbling couple and often
used to assault each other and at 8.30 p.m. in the night of
occurrence i.e. on 13.08.1996, they had a round of quarrels over
CRA No.229 of 2000 Page 3 of 59
preparation of cakes to celebrate 'Chitalagi Amabasya', in course
of which they had sworn to kill each other and in the next
morning at about 4.30 a.m., the appellant found D-1 lying dead
on the floor of the bed room with bleeding injuries, whereas D-2
was lying unconscious by his side and was bleeding from the
head and mouth, whereupon Jatni P.S. Case No.150 dated
14.08.1996 was registered under section 302 of I.P.C. arraying
D-2 as accused.
P.W.13, the I.I.C. of Jatni Police Station on
registering the written F.I.R. (Ext.14), instructed P.W.14, the
S.I. of Police of Jatni Police Station to investigate into the case.
During course of investigation, P.W.14 examined the appellant
and visited the spot and found the dead body of D-1 was lying
on the floor of the bed room with bleeding injuries and also
found D-2 was lying in a pool of blood with bleeding injuries in a
critical condition. P.W.14 directed constable T. Pradhan to shift
D-2 to the Railway Hospital, Jatni as per requisition (Ext.28). He
held inquest over the dead body of D-1 and prepared the inquest
report (Ext.1) and collected sample earth and blood-stained
earth from the floor of the bed room of the house of D-1 where
he was lying dead as per seizure list Ext.29. He also seized the
broken bangles (M.O.II) from the floor of the bed room where D-
CRA No.229 of 2000 Page 4 of 59
2 was lying unconscious as per seizure list Ext.3. P.W.14 also
seized a blood stained Khanati with bamboo handle (M.O.I) lying
on the floor of the bed room where the dead body of D-1 and the
injured D-2 were lying as per seizure list Ext.2. P.W.14 also
made requisition of the Scientific Officer for making scientific
collection of the blood at the spot. Thereafter, P.W.14 dispatched
the dead body of D-1 to S.D.M.O., Khurda for post-mortem
examination. On 15.08.1996, P.W.14 received oral information
from the Medical Officer, Jatni P.H.C. that D-2, who was
admitted in the hospital, succumbed to the injuries. On receiving
such information, P.W.14 reached at Jatni P.H.C., conducted
inquest over the dead body of D-2 as per inquest report Ext.32.
He sent the dead body of D-2 to the Sub-Divisional Hospital,
Khurda for post-mortem examination. He also received the P.M.
examination reports of both the deceased as per Exts.4 and 9.
On being transferred, P.W.14 handed over the charge
of investigation of the case to P.W.13, I.I.C of Jatni Police Station
on 05.11.1996. After taking over the charge of investigation,
P.W.13 seized the wearing apparels of the deceased couple and
broken bangles produced by the constable after post-mortem
examination on 12.11.1996, as per seizure list Ext.7/2. He also
examined the witnesses, sent the weapon of offence, i.e.,
CRA No.229 of 2000 Page 5 of 59
Khanati (M.O.I) along with a query to the doctor (P.W.4), who
conducted post mortem examination over the dead body of D-1
and received the query report Ext.5/1. He also received the
query report of the doctor (P.W.7) as to whether the injuries
received by D-2 could be caused by M.O.I as per query report
Ext.10/1.
During course of investigation, P.W.13, the I.O.
found the complicity of the appellant and his wife Santilata in the
crime for which he lodged the F.I.R. (Ext.17) on 05.02.1997,
which was registered as Jatni P.S. Case No.25 dated 05.02.1997
u/s 302/201/34 of I.P.C. against the appellant and his wife
Santilata Sahu.
During the course of investigation after registration
of the new P.S. case, P.W.13 examined the witnesses, seized the
xerox copy of the adoption deed (Ext.13) executed by D-1 and
D-2 in favour of the appellant as per seizure list Ext.19. He also
made a prayer to the learned S.D.J.M., Bhubaneswar for sending
the exhibits for chemical examination to the Director, State
F.S.L., Rasulgarh, Bhubaneswar and accordingly, the exhibits
were sent and the chemical examination report (Ext.16) was
received. On 05.02.1997, he visited the spot, i.e. the house of
the deceased persons and prepared the spot map (Ext.22). On
CRA No.229 of 2000 Page 6 of 59
the same day, P.W.13 arrested the co-accused Santilata Sahu
and forwarded her to the Court on the next day, i.e., 06.02.
1997. On 07.04.1997, P.W.13 seized the Log Book of the
Ambulance Van bearing Regd. No.OR-02A-7710 from the driver
as per seizure list Ext.23 and kept the same in the zima of the
driver as per Zimanama Ext.24. He also seized the bed head
ticket of D-2 from P.H.C., Jatni on 26.04.1997 where she was
first admitted as per seizure list Ext.8. In spite of his best efforts,
since P.W.13, the I.O. could not arrest the appellant, on
completion of investigation, he submitted charge sheet on
05.05.1997 under sections 302/201/34 of the I.P.C. against the
appellant and co-accused Santilata Sahu showing the former as
an absconder.
3. Since the appellant remained as an absconder, the
co-accused Santilata Sahu alone faced trial in the Court of
learned Sessions Judge, Khurda at Bhubaneswar for the
aforesaid charges in S.T. Case No.145 of 1997 and vide
judgment and order dated 18.01.1999, she was acquitted of all
the charges.
4. Since non-bailable warrant of arrest was issued
against the appellant, he surrendered before the learned
S.D.J.M., Bhubaneswar on 03.11.1998 and was taken into
CRA No.229 of 2000 Page 7 of 59
judicial custody. The case of the appellant was committed to the
Court of Session and registered as S.T. Case No.161 of 1998 in
the Court of learned Sessions Judge, Khurda at Bhubaneswar.
The learned trial Court framed charges against the appellant as
aforesaid. Since the appellant refuted the charges, pleaded not
guilty and claimed to be tried, the sessions trial procedure was
resorted to prosecute him and establish his guilt.
Prosecution Witnesses, Exhibits and Material Objects:
5. During the course of trial, in order to prove its case,
the prosecution has examined as many as fifteen witnesses.
P.W.1 Jangeshwar Sahu, who was a neighbour of
both the deceased couple and the appellant, stated that on
hearing that D-1 was dead and D-2 was in a state of
unconsciousness, he had been to their house and saw marks of
injuries on both the deceased couple and there was blood clot in
the chest of the D-1. He is a witness to the inquest over the
dead body of D-1 and signed the inquest report (Ext.1). He also
stated that since the deceased couple was issueless, they
adopted the appellant, who was the sister's son of D-2 and the
appellant along with his second wife, co-accused Santilata Sahu
were staying in the house of the deceased couple. He further
stated that there was no good feeling amongst the appellant and
CRA No.229 of 2000 Page 8 of 59
his second wife on the one hand and the deceased couple on the
other. He further stated that while the first wife of the appellant
was there, all of them were staying in one mess, but after the
desertion of the first wife, the appellant married for the second
time to Santilata and then they were having separate mess. He
further stated that the deceased couple were pulling on well,
which he knew as a neighbour.
P.W.2 Surendra Nath Subudhi, who was also a
neighbour of both the appellant and deceased couple, stated in
the same manner like that of P.W.1. He is also a witness to the
inquest report (Ext.1).
P.W.3 Naba Kishore Behera is a witness to the
inquest report (Ext.1) as well as a witness to the seizure lists
Ext.2 and 3.
P.W.4 Dr. Bimal Kumar Rath, who was working as
the Gynec Specialist in the Sub-Divisional Hospital, Khurda,
conducted post mortem over the dead body of D-1 and
submitted his report as per Ext.4 and gave his opinion as per the
query made by the I.O. vide Ext.5.
P.W.5 Nepali Das did not support the prosecution
case for which he has been declared hostile by the prosecution.
CRA No.229 of 2000 Page 9 of 59
P.W.6 Benudhar Jena, who was working as
Pharmacist in Jatni P.H.C, Khurda produced the bed head ticket
of D-2 before the I.O. which was seized as per seizure list Ext.8.
P.W.7 Dr. Abhaya Kumar Patra, who was the
Pediatric Specialist at District Headquarters Hospital, Khurda,
conducted post mortem examination over the dead body D-2 and
submitted his report as per Ext.9 and his opinion vide Ext.10/1
pursuant to the query made by the I.O. as per Ext.10.
P.W.8 Sk. Mahammad, who was the Ambulance
Driver, stated to have shifted D-2 from Railway Hospital, Jatni
with injuries to Jatni hospital at Sandhapur on 14.08.1996.
P.W.9 Kishore Kumar Mohanty is a co-villager of the
both the deceased couple and the appellant. He was declared
hostile by the prosecution.
P.W.10 Pramod Kumar Sahu, who is the brother in-
law of the appellant (brother of his first wife), has stated that the
appellant married to his sister Bijayalaxmi Sahu in January 1989
and out of their wedlock, a daughter was born. He further stated
that after five to six years of marriage, he came to know that the
appellant again married to Santilata during the life time of his
first wife. He further stated that the appellant and Santilata lived
with the deceased couple in their village house.
CRA No.229 of 2000 Page 10 of 59
P.W.11 Ali Ahamad Saha was the Constable working
in Jatni police station, who escorted the dead body of D-1 to the
hospital for post-mortem examination. He produced the wearing
apparels of D-1 before the I.O. which was seized as per seizure
list Ext.7/2.
P.W.12 Pramod Kumar Mohanty was the Jr. Clerk
-cum- Record Keeper in the Office of the Sub-Registrar, Jatni
who proved the relevant entry dt. 01.02.1993 made in the
register of adoption deeds, wherein the adoption deed executed
between the deceased couple and the appellant was found
mentioned and he produced the same before the Court which
was marked as Ext.13.
P.W.13 Prafulla Chandra Barik, who was working as
Inspector in-charge of Jatni police station, is the subsequent I.O.
who submitted the final charge sheet.
P.W.14 T. Hare Krushna Murty, S.I. of Police, Jatni
Police Station, was the initial Investigating Officer of the case.
P.W.15 Dr. Dinakrushna Panda, who was the Surgery
Specialist at D.H.H., Khurda, treated D-2 on 14.08.1996 and
finding her condition critical, he referred her to S.C.B. Medical
College and Hospital, Cuttack and since D-2 was not shifted as
referred to, she expired on the next day at about 4.30 a.m. He
CRA No.229 of 2000 Page 11 of 59
also noted some injuries on the person of D-2 and proved the
bed ticket as per Ext.26.
The prosecution exhibited thirty four documents.
Ext.1 is the inquest report, Exts.2, 3, 8, 19, 23, 29 are the
seizure lists, Ext.4 is the post mortem report of D-1, Ext.5/1 is
the opinion of the doctor (P.W.4), Ext.6 is the dead body challan,
Ext.7/3 is the seizure list of wearing apparels of both the
deceased, Ext.9 is the P.M. report of D-2, Ext.10/1 is the opinion
of the doctor (P.W.7), Ext.11 is the command certificate, Ext.12
is the acknowledgment of the appellant, Ext.13 is the relevant
entry in respect of adoption deed, Ext.14 is the F.I.R. lodged by
the appellant, Ext.15 is the formal F.I.R., Ext.16 is the chemical
examination report, Ext.17 is the F.I.R. lodged by P.W.13, Ext.18
is the formal F.I.R., Ext.20 is the requisition, Ext.21 is the
forwarding letter of S.D.J.M. for sending the M.Os. for chemical
examination, Ext.22 is the spot map, Ext.24 is the zimanama,
Exts.25 and 26 are the bed head tickets, Ext.27 is the command
certificate, Ext.28 is the requisition, Ext.30 is the spot visit
report, Ext.31 is the casualty memo regarding death of D-2,
Ext.32 is the inquest report of D-2, Ext.33 is the dead body
challan and Ext.34 is the command certificate.
CRA No.229 of 2000 Page 12 of 59
The prosecution also proved six material objects.
M.O.I is the Khanati with bamboo handle, M.O.II is the broken
bangles, M.O.III is the saree, M.O.IV is the broken bangles,
M.O.V is the blood stained thread and M.O. VI is the control
thread.
Defence Plea:
6. The defence plea of the appellant is one of denial.
Though the appellant admitted about his adoption by the
deceased couple by virtue of registered adoption deed dt.
01.02.1993 and that he alongwith his second wife Santilata Sahu
was residing with the deceased couple in the same house and
also about his presence with his second wife on the occurrence
night in the spot house and that the body of D-1 and D-2 were
lying in their bedroom with bleeding injuries and the blood-
stained Khanati (M.O.I) and broken bangles (M.O.II) were also
lying in the bedroom of the deceased couple, but he denied his
involvement in the commission of murder of the deceased
couple. He specifically pleaded that his elder brother who was
adopted by the deceased couple prior to his adoption by them,
was murdered in the year 1978 whereafter he was adopted. He
pleaded that the persons who had committed the murder of his
CRA No.229 of 2000 Page 13 of 59
elder brother might have killed the deceased couple by
conspiring.
Defence has neither examined any witness nor
exhibited any document.
Findings of the Trial Court:
7. The learned trial Court after assessing the oral as
well as documentary evidence on record, came to hold that the
following circumstances unerringly point towards the guilt of the
appellant in the commission of the murder of the deceased
couple:
(i) The deceased couple and the appellant and
his second wife Santilata were the four persons
present in the house in the fateful night;
(ii) The earlier plea of the appellant as stated
in the F.I.R. (Ext.14) that the deceased couple
fought and inflicted fatal injuries on each other,
has not been substantiated;
(iii) The second inconsistent plea of the
appellant that the persons, who had murdered
his brother (Pravat) have also murdered the
deceased couple, has been discarded;
(iv) There was strained relationship between
the deceased couple and the appellant after he
(appellant) brought home the second wife
Santilata;
CRA No.229 of 2000 Page 14 of 59
(v) The appellant did not show any concern to
shift D-2 to the S.C.B. Medical College and
Hospital, Cuttack for specialized treatment in
spite of the fact that she was referred to S.C.B.
M.C.H, Cuttack by the Medical Officers of
Railway Hospital, Jatni and Jatni P.H.C. at
Sandhapur;
(vi) The false and inconsistent plea taken by
the appellant and his absconding after the I.O.
(P.W.13) lodged F.I.R. (Ext.17) implicating him
in the crime, are relevant under section 8 of the
Evidence Act as conduct evidence.
The learned trial Court also came to the conclusion
that the appellant had intentionally gave false information to the
police in the F.I.R. (Ext.14) that the deceased couple quarreled
with each other in the fateful night. It was held that the acquittal
of the wife of the appellant namely, Santilata ipso facto does not
give a clean chit to the appellant in the face of preponderance
evidence, which unerringly point to the guilt of the appellant to
the exclusion of guilt of any other person and accordingly, found
the appellant guilty under sections 302/201 of the I.P.C.
Contentions of the Parties:
8. Mr. Sashibhusan Das, learned counsel appearing for
the appellant emphatically contended that admittedly there is no
ocular evidence to support the case of the prosecution with
CRA No.229 of 2000 Page 15 of 59
regard to the homicidal death of the deceased couple. He argued
that on hearing from his wife Santilata that both the deceased
couple were lying in a pool of blood, he (appellant) found that
D-1 was dead and D-2 was unconscious and accordingly, he
called the co-villagers and rushed to the police station to lodge
the F.I.R. (Ext.14) which was very natural on his part being the
adoptive son of the deceased couple. He further argued that
even though the appellant did not first take steps to shift D-2 to
the hospital to save her life, but preferred to go the police
station, such conduct cannot be said to be so unusual on the part
of the appellant to hold him guilty for the offences charged.
Moreover, the evidence on record indicates that the appellant
accompanied the dead bodies of D-1 and D-2 for the post
mortem examination.
Learned counsel further argued that since one F.I.R.
(Ext.14) was already registered, for the self-same incident, the
registration of the second F.I.R. (Ext.17) at the instance of
P.W.13 is not legally sustainable. He relied upon the decision of
the Hon'ble Supreme Court in the case of T.T. Anthony -Vrs.-
State of Kerala reported in (2001) 6 Supreme Court Cases
181. He further argued that P.W.13 being the informant in the
second F.I.R. (Ext.17) should not have conducted the
CRA No.229 of 2000 Page 16 of 59
investigation and it should have been entrusted to some other
competent officer of the police station.
It is further argued that there is no clinching material
on record as to what was the basis for suspecting the
involvement of the appellant and his wife Santilata in the crime
even though the appellant was co-operating with the
investigation and his conduct was very natural.
It is further argued that when P.W.13 lodged the
second F.I.R. and also arrested co-accused Santilata on
05.02.1997, it was but natural on the part of the appellant to
abscond, apprehending his arrest by P.W.13 and mere
abscondence by the appellant is not sufficient to hold him guilty.
Learned counsel further submitted that the
prosecution has not ruled out the entry of an outsider to the spot
house in the night of occurrence and therefore, merely because
the appellant and his second wife Santilata (acquitted) were
present in the spot house in another room, the appellant cannot
be held guilty for the offences charged. According to the learned
counsel, since the prosecution has failed to establish a complete
chain of circumstances, in view of the five golden principles laid
down by the Hon'ble Supreme Court in the case of Sharad
Birdhichand Sarda -Vrs.- State of Maharashtra reported in
CRA No.229 of 2000 Page 17 of 59
A.I.R. 1984 S.C. 1622, it is a fit case where benefit of doubt
should be extended in favour of the appellant.
9. Mr. Partha Sarathi Nayak, learned Addl. Government
Advocate, on the other hand, supported the impugned judgment
and argued that not only the prosecution has proved the motive
on the part of the appellant to commit the crime, but also how
on seeing the condition of the deceased couple, the appellant
who was residing in the same house along with his second wife
as their adoptive son and daughter-in-law, instead of shifting D-
2, who was lying senseless in an injured condition to the
hospital, preferred to go to the police station to lodge F.I.R. He
even did not take D-2 to S.C.B.M.C.H., Cuttack as per doctor's
advice perhaps remaining under impression that once D-2 got
survived, the truth would come out. He further argued that the
plea taken by the appellant in the F.I.R. that there was
possibility of fight between the deceased couple inflicting fatal
injuries to each other is not at all believable inasmuch as D-1
and D-2 were aged about 75 years and 65 years respectively and
there is also evidence on record that both the couple were
having a cordial relationship. He argued that since during course
of investigation of the case on the F.I.R. lodged by the appellant,
the complicity of the appellant and his wife came to the fore, the
CRA No.229 of 2000 Page 18 of 59
I.O. (P.W.13) could have arrayed both of them as accused
without lodging a separate F.I.R., but lodging of second F.I.R.
cannot be said to be an illegality or incurable defect of such a
nature which would create doubt over the conduct of the I.O. or
vitiate the entire prosecution case. He further argued that unless
any bias or mala fide is attributed against P.W.13, there is no
justification in raising finger towards the investigation conducted
by him as there was no legal bar on his part to investigate the
case. He argued that the evidence of the witnesses, i.e., P.W.1
and P.W.2 so also the evidence of the doctors P.W.4, P.W.7 and
P.W.15 coupled with the evidence of the two I.Os. P.W.13 and
P.W.14 are clear and unambiguous and there is no missing link
in the chain of circumstances and therefore, even in absence of
direct evidence, the learned trial Court was justified in convicting
the appellant on the basis of circumstantial evidence and thus,
the appeal should be dismissed.
Principles for appreciation of case based on circumstantial
evidence:
10. Admittedly, there is no direct evidence relating to the
commission of murder of the deceased couple and the case is
based on circumstantial evidence.
CRA No.229 of 2000 Page 19 of 59
In the case of Sharad Birdhichand Sarda (supra),
a Bench of three Judges of the Hon'ble Supreme Court, after
analyzing various aspects, laid down certain cardinal principles
for conviction on the basis of circumstantial evidence. It has
been laid down that the following conditions must be fulfilled
before a case against an accused can be said to be fully
established:
(i) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established;
(ii) 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;
(iii) the circumstances should be of a
conclusive nature and tendency;
(iv) they should exclude every possible
hypothesis except the one to be proved; and
(v) 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.
CRA No.229 of 2000 Page 20 of 59
These five golden principles, according to the Hon'ble
Supreme Court, constitute the panchsheel of the proof of a case
based on circumstantial evidence.
It is thus clear that even in the absence of direct
evidence, if various circumstances relied on by the prosecution
relating to the guilt of the accused are fully established beyond
all reasonable doubt, the Court is free to award conviction.
Further, the chain of events must be complete in order to sustain
the conviction on the basis of circumstantial evidence.
In the case of Kishore Chand -Vrs.- State of
Himachal Pradesh reported in (1991) 1 Supreme Court
Cases 286, the Hon'ble Supreme Court held as follows:
"4. The question, therefore, is whether the
prosecution proved guilt of the appellant beyond
all reasonable doubt. In a case of circumstantial
evidence, all the circumstances from which the
conclusion of the guilt is to be drawn should be
fully and cogently established. All the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. The
proved circumstances should be of a conclusive
nature and definite tendency, unerringly pointing
towards the guilt of the accused. They should be
such as to exclude every hypothesis but the one
proposed to be proved. The circumstances must
CRA No.229 of 2000 Page 21 of 59
be satisfactorily established and the proved
circumstances must bring home the offences to
the accused beyond all reasonable doubt. It is
not necessary that each circumstance by itself
be conclusive but cumulatively must form
unbroken chain of events leading to the proof of
the guilt of the accused. If those circumstances
or some of them can be explained by any of the
reasonable hypothesis then the accused must
have the benefit of that hypothesis."
In the case of Gambhir -Vrs.- State of
Maharashtra reported in (1982) 2 Supreme Court Cases
351, the Hon'ble Supreme Court held as follows:
"9. It has already been pointed out that there is
no direct evidence of eye witness in this case
and the case is based only on circumstantial
evidence. The law regarding circumstantial
evidence is well-settled. When a case rests upon
the circumstantial evidence, such evidence must
satisfy three tests: (1) the circumstances from
which an inference of guilt is sought to be
drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused; (3) the circumstances, taken
cumulatively, should form a chain so complete
that there is no escape from the conclusion that
within all human probability the crime was
CRA No.229 of 2000 Page 22 of 59
committed by the accused and none else. The
circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of
the guilt of the accused. The circumstantial
evidence should not only be consistent with the
guilt of the accused but should be inconsistent
with his innocence."
In a case based on circumstantial evidence, there is
always a danger that conjecture or suspicion may take the place
of legal proof. The Court has to be watchful and ensure that
suspicion, howsoever strong, should not be allowed to take the
place of proof. A moral opinion howsoever strong or genuine and
suspicion, howsoever grave, cannot substitute a legal proof. A
very careful, cautious and meticulous appreciation of evidence is
necessary when the case is based on circumstantial evidence.
The prosecution must elevate its case from the realm of 'may be
true' to the plane of 'must be true'.
The core principles which need to be adhered to by
the Court, while examining and appreciating circumstantial
evidence, have been strenuously discussed by the Hon'ble
Supreme Court in the case of Devi Lal -Vrs.- State of
Rajasthan reported in (2019) 19 Supreme Court Cases
447 in the following words:
CRA No.229 of 2000 Page 23 of 59
"17......It has been propounded that while
scrutinising the circumstantial evidence, a Court
has to evaluate it to ensure the chain of events
is established clearly and completely to rule out
any reasonable likelihood of innocence of the
accused. The underlying principle is whether the
chain is complete or not, indeed it would depend
on the facts of each case emanating from the
evidence and there cannot be a straitjacket
formula which can be laid down for the purpose.
But the circumstances adduced when considered
collectively, it must lead only to the conclusion
that there cannot be a person other than the
accused who alone is the perpetrator of the
crime alleged and the circumstances must
establish the conclusive nature consistent only
with the hypothesis of the guilt of the accused."
In the case of Jaharlal Das -Vrs.- State of Orissa
reported in A.I.R. 1991 S.C. 1388, it is held as follows:
"The Court has to bear in mind a caution that in
cases depending largely upon circumstantial
evidence, there is always a danger that the
conjecture or suspicion may take the place of
legal proof and such suspicion however so
strong cannot be allowed to take the place of
proof. The Court has to be watchful and ensure
that conjectures and suspicions do not take the
place of legal proof. The Court must satisfy itself
CRA No.229 of 2000 Page 24 of 59
that the various circumstances in the chain of
evidence should be established clearly and that
the completed chain must be such as to rule out
a reasonable likelihood of the innocence of the
accused".
In case of Budhuram -Vrs.- State of Chhattisgarh
reported in (2012) 11 Supreme Court Cases 588, it is held
as follows:
"12. The law relating to proof of a criminal
charge by means of circumstantial evidence
would hardly require any reiteration, save and
except that the incriminating circumstances
against the accused, on being proved, must be
capable of pointing to only one direction and to
no other, namely, that it is the accused and
nobody else who had committed the crime. If
the proved circumstances are capable of
admitting any other conclusion inconsistent with
the guilt of the accused, the accused must have
the benefit of the same."
Keeping in view the ratio laid down in the aforesaid
decisions of Supreme Court, the evidence on record needs to be
analysed to see how far the prosecution has proved the
circumstances as enumerated by the learned trial Court and
whether the circumstances taken together form a complete chain
CRA No.229 of 2000 Page 25 of 59
to come to the irresistible conclusion that the appellant alone and
none else is the perpetrator of the crime in question.
Whether both the deceased couple D-1 and D-2 met with
homicidal death?:
11. The inquest report (Ext.1), which has been prepared
by the I.O. (P.W.14) indicates the nature of injuries sustained by
D-1. P.W.4 conducted post-mortem examination over the dead
body of D-1 on 14.08.1996 on police requisition and noticed the
following external and internal injuries:
External injuries:
(i) Lacerated injury on left forehead of size 1"
x 1" x ½" with extravasation of blood into the
both eye lids. On dissection, there was
extravasation of blood into the tissue spaces
without any fracture of underlying bone;
(ii) Bruise over the right side of the chest of 5"
x 3" size. On dissection, there is fracture
underlying ribs from 2nd to 9th rib and there is
evidence of haemorrhage into the spaces;
Internal injuries:
On internal examination, the pleural cavity
is full of blood with laceration of pleura
(underlying injury no.2) and right lungs. Right
lung looks pale. Left lung and pleura intact and
pale.
CRA No.229 of 2000 Page 26 of 59
Heart:- Ventricles empty and all large vessels
intact. All abdominal viscera looked pale and
intact except liver which is lacerated on the
lateral surface and looks pale. Abdominal cavity
is filled with blood, stomach contains near about
300 cc of semi-digested food materials.
Intracranial dissection:- Meninges and brain
intact and pale.
P.W.4 further stated that the cause of death was due
to haemorrhage out of the above injuries leading to shock and
the death was within 24 hours prior to his examination and all
the injuries were ante mortem in nature and were caused by
hard and blunt weapon. It further appears from the evidence of
P.W.4 that on 18.01.1997, the I.O. (P.W.14) made a query
regarding possibility of the injury found on D-1 by Khanati
(M.O.I), which was produced before him and on examination,
P.W.4 opined that the injuries on D-1 could be caused by M.O.I.
Nothing has been elicited by the defence in the cross-
examination to disbelieve the evidence of the doctor (P.W.4) and
that the death of D-1 was homicidal in nature.
Similarly, the inquest report (Ext.32), which has
been prepared by the I.O. (P.W.14) indicates the nature of
injuries sustained by D-2. P.W.7 conducted post-mortem
examination over the dead body of D-2 on 15.08.1996 on police
CRA No.229 of 2000 Page 27 of 59
requisition and noticed the following external and internal
injuries:
External injuries:
(i) Black eye right side;
(ii) Abrasion on lateral angle of right eye with
haematoma on right temporal region;
(iii) Fracture of right mandible and lower jaw
medial five teeth with mandible separated from
lateral part, heavily blood stained and clots are
present;
(iv) Tongue was lacerated in middle part ½'' x
½'' heavily stained with blood.
Internal injuries:
On dissection, it was found that there was
fracture of right side ribs from second to fifth
ribs with lacerated injury to right lung lateral
aspect and there was heavy collection of blood
in thoracic cavity.
P.W.7 opined that all the injuries were ante mortem
in nature and sufficient in ordinary course of nature to cause
death and death was caused by shock and haemorrhage due to
injuries to vital parts of organ like lungs and also due to heavy
bleeding. It further appears from the evidence of P.W.7 that on
30.01.1997, the I.O. (P.W.14) made a query regarding
CRA No.229 of 2000 Page 28 of 59
possibility of the injury found on D-2 by Khanati (M.O.I), which
was produced before him and on examination, P.W.7 opined that
all the injuries on D-2 were unlikely to be caused by M.O.I. He
proved his opinion vide Ext.10/1. However, on being declared
hostile by the prosecution, P.W.7 stated that the all the injuries
on the person of D-2 could be possible by the handle of M.O.I
and not by blade portion. Nothing has been elicited by the
defence in the cross-examination to disbelieve the evidence of
the doctor (P.W.4) and that the death of D-2 was homicidal in
nature.
After going through the evidence on record, more
particularly, the inquest reports of D-1 and D-2 vide Exts.1 and
32 respectively, the evidence of the two doctors P.W.4 and
P.W.7, who conducted post-mortem examination over the dead
bodies of D-1 and D-2 respectively and the post mortem report
findings vide Exts.4 and 9, we are of the humble view that the
learned trial Court has rightly came to the conclusion that the
deceased couple D-1 and D-2 met with homicidal death. The
homicidal death aspect of the deceased couple has also not been
challenged by Mr. Das, learned counsel for the appellant. Thus,
the prosecution has successfully established that D-1 and D-2
met with homicidal death.
CRA No.229 of 2000 Page 29 of 59
Motive:
12. According to the prosecution case, the appellant
committed the crime in order to grab the properties of the
deceased couple D-1 and D-2.
Learned counsel for the appellant argued that the
deceased couple had already executed a deed of adoption as per
Ext.13 in favour of the appellant to be their son and therefore,
even accepting the evidence of P.W.1 that there was strained
relationship between the deceased couple on the one hand and
the appellant and his second wife on the other, it is difficult to
believe that doing away with the lives of the adoptive parents
was a short cut path on the part of the appellant to get
immediate access to their properties.
The learned trial Court has observed that the
prosecution has not spelled out the motive of the appellant in so
many words, but relying on the evidence of P.W.1, the Court has
observed that there was strained relationship between the
appellant and the deceased couple as because the appellant
drove out his first wife and brought Santilata as his second wife.
The evidence of three witnesses i.e. P.Ws.1, 2 and 9
are relevant on this issue.
CRA No.229 of 2000 Page 30 of 59
P.W.1 was staying in the neighbourhood of the house
of deceased couple and he has stated that the deceased couple
were issueless and they adopted the appellant, who was the
sister's son of D-2. The adoption deed dated 01.02.1993 vide
Ext.13 was proved by P.W.12, the Jr. Clerk -cum- Record Keeper
in the Office of the Sub-Registrar, Jatni. The marriage of the
appellant with his first wife Bijayalaxmi Sahu was solemnised in
the month of January, 1989 as per the evidence of P.W.10,
brother of Bijayalaxmi Sahu. Thus the adoption of the appellant
was made by the deceased couple four years after the first
marriage of the appellant. P.W.10 stated that the second
marriage of the appellant with co-accused Santilata was held five
to six years after the first marriage during the life time of the
first wife. The occurrence in question took place on
13/14.08.1996 night. Therefore, the appellant and his second
wife Santilata were staying in the house of the deceased couple
after their marriage for about a year prior to the occurrence.
P.W.1 stated that there was cordial relationship
between the deceased couple and the relationship between the
deceased couple and the appellant became strained as he
deserted his first wife and brought home the second wife
Santilata (the co-accused). He further stated that there was no
CRA No.229 of 2000 Page 31 of 59
good feeling between the appellant and his wife Santilata on one
side and the deceased couple on the other side. He further
stated that while the first wife of the appellant was there, all of
them were staying in one mess, but after desertion of the first
wife and the appellant keeping Santilata as his second wife, they
were having separate mess from the deceased couple. Though
P.W.1 has stated that he was having visiting terms to the house
of the deceased, but his evidence is totally silent that relating to
the dispute of properties, there was strained relationship
between the appellant and the deceased couple D-1 and D-2.
Merely because the deceased couple and the appellant and co-
accused Santilata were living in separate mess, it cannot be
inferred that there was property dispute between them which
was the motive behind the commission of crime much less the
appellant committed the crime in order to grab the properties of
the deceased couple.
P.W.2 has stated that there was good feeling
between the appellant and D-1 and D-2 even after Santilata was
brought as second wife. He further stated that D-1 brought
Shanti as his daughter in-law and thereafter they all were
staying together in one mess.
CRA No.229 of 2000 Page 32 of 59
P.W.9 who was staying in the neighbourhood of the
house of deceased couple has stated that there was no ill feeling
between the appellant and his wife with the D-1 and D-2.
In view of the evidence as adduced by the aforesaid
three witnesses, we are of the view that there is no clinching
evidence on record that there was strained relationship between
the deceased couple and the appellant, after he (appellant)
brought home the second wife Santilata. The learned trial Court
should not have ignored the evidence of P.Ws.2 and 9 and came
to hold relying only on the evidence of P.W.1 that there was
strained relationship between the appellant and the deceased
couple.
It is, of course, true that the motive remains locked
in the heart of the accused which is primarily known to the
accused himself and it may not be possible for the prosecution to
explain what actually prompted or excited the accused to commit
a particular crime. Motive is in the mind of the accused and can
seldom be fathomed with any degree of accuracy.
In a case of circumstantial evidence, motive has an
important role to play. It is an important link in the chain of
circumstances. (Ref: Indrajit Das -Vrs.- State of Tripura :
(2023) 18 Supreme Court Cases 506). In a case based on
CRA No.229 of 2000 Page 33 of 59
circumstantial evidence, motive assumes great significance
inasmuch as its existence is an enlightening factor in a process
of presumptive reasoning. (Ref: Sukhram -Vrs.- State of
Maharashtra : (2007) 7 Supreme Court Cases 502). Motive
for commission of offence no doubt assumes greater importance
in cases resting on circumstantial evidence than those in which
direct evidence regarding commission of offence is available. It is
equally true that failure to prove motive in cases resting on
circumstantial evidence is not fatal by itself. However, it is also
well settled in law that absence of motive could be a missing link
of incriminating circumstances, but once the prosecution has
established the other incriminating circumstances to its entirety,
absence of motive will not give any benefit to the accused. (Ref:
Ramchand -Vrs.- State of U.P. : (2023) 16 Supreme Court
Cases 510). In the case of Shankar -Vrs.- State of
Maharashtra reported in (2023) 19 Supreme Court Cases
553, it is held that just like complete absence of motive, failure
to establish motive after attributing one, should also give a
different complexion in a case based on circumstantial evidence
and it will certainly enfeeble the case of prosecution. In the case
of Subash Aggarwal -Vrs.- The State of NCT of Delhi
reported in 2025 INSC 499, it is held that motive remains
CRA No.229 of 2000 Page 34 of 59
hidden in the inner recesses of the mind of the perpetrator,
which cannot, oftener than ever, be ferreted out by the
investigation agency. Though in a case of circumstantial
evidence, the complete absence of motive would weigh in favour
of the accused, it cannot be declared as a general proposition of
universal application that, in the absence of motive, the entire
inculpatory circumstances should be ignored and the accused
acquitted. In the case of Nandu Singh -Vrs.- State of Madhya
Pradesh (Now Chhattisgarh) reported in (2022) 19
Supreme Court Cases 301, it is held that in a case based on
circumstantial evidence, motive assumes great significance. It is
not as if motive alone becomes the crucial link in the case to be
established by the prosecution and in its absence, the case of
prosecution must be discarded. But, at the same time, complete
absence of motive assumes a different complexion and such
absence definitely weighs in favour of the accused.
Thus, if motive is proved, that would supply another
link in the chain of circumstantial evidence, but absence of
motive cannot be a ground to reject the prosecution case,
though such an absence of motive is a factor that weighs in
favour of the accused. (Ref: Prem Singh -Vrs.- State (NCT of
Delhi): (2023) 3 Supreme Court Cases 372).
CRA No.229 of 2000 Page 35 of 59
In view of the foregoing discussions, we are of the
view that the prosecution has failed to establish any motive on
the part of the appellant to commit the crime by adducing
clinching evidence and therefore, we have to scrutinize the
materials available on record carefully to see as to how far the
prosecution has satisfactorily proved the other incriminating
circumstances and whether the chain of circumstances is so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the appellant and it
is consistent with the only conclusion of guilt of the appellant.
The chain of circumstantial evidence is essentially meant to
enable the Court in drawing an inference and thus the task of
fixing criminal liability upon a person on the strength of an
inference must be approached with abandoned caution.
Conduct of the Appellant after the occurrence:
13. It is the prosecution case as per the F.I.R. (Ext.14)
lodged by the appellant that when the appellant saw D-1 was
lying dead and D-2 was lying in an unconscious state in their bed
room in bleeding condition, he called the persons who were
staying in the neighbourhood and they came to his house and
suggested him to lodge the F.I.R. and accordingly, he came to
the police station and lodged the report.
CRA No.229 of 2000 Page 36 of 59
According to the learned counsel for the State, the
appellant's conduct in not taking D-2 to the hospital to save her
life is suspicious and he ought to have carried D-2 first to the
hospital rather than going to the police station to lodge the
report.
We are not at all influenced by the aforesaid
submission raised on behalf of the State. We are of the humble
view that the conduct of a person, either as a witness or as an
accused after the occurrence, may vary from person to person
and it is not expected that everybody should react in a particular
manner after the occurrence. An approach by a Court in
discarding the evidence on the ground of absence of a particular
type of reaction of a person, may be a witness or an accused
would be wholly unrealistic and unimaginative way. It depends
upon the upbringing of the person, his capacity to deal with
adverse situation in life, his feelings and emotions. Therefore, it
cannot be said that there was any such improbability feature in
the conduct of the appellant in going to the police station to
lodge the F.I.R. as suggested by the co-villagers instead of
carrying D-2 to the hospital.
According to the learned counsel for the State, the
appellant even did not accompany D-2 to the hospital who was in
CRA No.229 of 2000 Page 37 of 59
a critical condition with injuries and admitted in the Railway
Hospital, Jatni and shifted to Jatni Hospital at Sandhapur. We
find from the evidence of P.W.11, the Constable that the
appellant accompanied him to the hospital when he carried the
dead body of D-1 to D.H.H., Khurda for post-mortem
examination and he made over the dead body of D-1 to the
appellant after the post mortem examination. P.W.7, the doctor
who conducted post-mortem examination over the dead body of
D-2 on 15.08.1996 stated that the dead body was identified to
him by the constables and the appellant. Therefore, the
appellant not only accompanied the dead body of D-1 but also
the dead body of D-2 for post-mortem examination and as such
his conduct was very natural.
Inconsistent plea taken by the Appellant:
14. The learned trial Court held that the deceased couple
and the appellant and his second wife Santilata were the four
persons present in the house in the fateful night. The earlier plea
of the appellant as stated in the F.I.R. (Ext.14) was that the
deceased couple fought and inflicted fatal injuries on each other,
which has not been substantiated. The second inconsistent plea
of the appellant was that the persons, who had murdered his
CRA No.229 of 2000 Page 38 of 59
brother (Pravat) might have also murdered the deceased couple,
which has been discarded by the learned trial Court.
Neither the appellant has disputed that he along with
his wife Santilata was staying in the same house where D-1 and
D-2 were staying and that they were present in the spot house
on the occurrence night nor he has disputed to have lodged the
F.I.R. (Ext.14). Even if the plea taken by the appellant relating to
the death of the deceased couple was inconsistent, but that itself
would not be a factor to prove the guilt of the appellant. The
prosecution cannot derive any advantage from the falsity or
other infirmities of the defence version, so long as it does not
discharge its initial burden of proving its case beyond all
reasonable doubt. The prosecution has a bounden duty to lead
an impenetrable chain of evidence suggesting the guilt of the
accused and it must stand on its own leg without borrowing
credence from falsity of defence evidence. A false plea set up by
the defence can at best be considered as an additional
circumstance against the accused provided that the other
evidence on record unfailingly point towards his guilt. In the case
of Shankarlal Gyarasilal Dixit -Vrs.- State of Maharashtra
reported in A.I.R. 1981 S.C. 765, the Hon'ble Supreme Court
held that falsity of defence case cannot take the place of proof of
CRA No.229 of 2000 Page 39 of 59
facts which prosecution has to establish in order to succeed. A
false plea by the defence can be best considered as an additional
circumstance provided other evidence on record unfailingly point
to the guilt of the accused. Therefore, if the evidence on record
fails to point to the guilt of the accused beyond reasonable
doubt, it is of no consequence whether or not the defence
version is false.
Absconding of the Appellant:
15. The learned Trial Court has taken the conduct of the
appellant in absconding after the I.O. (P.W.13) lodged the F.I.R.
(Ext.17) against him as relevant under section 8 of the Evidence
Act.
The I.O. (P.W. 13) has stated that in spite of his best
efforts, he could not arrest the appellant as he absconded after
05.02.1997.
The appellant was available with the investigating
agency right from 14.08.1996 when he lodged the F.I.R. vide
Ext.14 and he also co-operated with the investigation. However,
when P.W.13 himself lodged the F.I.R. on 05.02.1997 vide
Ext.17 and arrested the lady accused Santilata, the appellant
absconded perhaps apprehending his arrest by police.
CRA No.229 of 2000 Page 40 of 59
The act of absconding may be a relevant piece of
evidence to be considered along with other evidence, but it is as
such not a determining link in completing the chain of
circumstantial evidence and mere absconding should not form
the basis of a conviction as it is a weak link in the chain.
Absconding by itself is not conclusive, either of guilt or of a guilty
conscience. In the case of Sekaran -Vrs.- The State of Tamil
Nadu reported in (2024) 2 Supreme Court Cases 176, it
has been held that abscondence by a person against whom an
F.I.R. has been lodged and who is under expectation of being
apprehended is not very unnatural and thus, mere absconding by
the appellant after alleged commission of crime and remaining
untraceable for a long time itself cannot establish his guilt or
guilty conscience. Abscondence, in certain cases, could constitute
a relevant piece of evidence but its evidentiary value depends
upon the surrounding circumstances. This sole circumstance,
therefore does not enure to the benefit of the prosecution.
In the case of Matru -Vrs.- State of U.P. reported
in (1971) 2 Supreme Court Cases 75, it has been held that
mere absconding by itself does not necessarily lead to a firm
conclusion of guilty mind. Even an innocent man may feel
panicky and try to evade arrest when wrongly suspected of a
CRA No.229 of 2000 Page 41 of 59
grave crime which is the instinct of the self-preservation. The act
of absconding and its value would depend on the circumstances
of each case. Normally, the courts are disinclined to attach much
importance to the acts of absconding, treating it as a very small
item in the evidence for sustaining conviction. It can scarcely be
held as a determining link in completing the chain of
circumstantial evidence which must admit of no other reasonable
hypothesis than that of the guilt of the accused.
Therefore, the solitary conduct of the appellant in
absconding after the F.I.R. was lodged against him by P.W.13 on
05.02.1997 vide Ext.17 and his wife Santilata being arrested,
cannot be given much weightage since there is no other clinching
evidence available to implicate him in the ghastly crime.
Appellant and the deceased couple were present in the
spot house in the night of occurrence:
16. The prosecution has relied upon the evidence of
P.Ws.1 and 2 to prove the presence of the appellant and his wife
Santilata in the house where the deceased couple were residing.
P.W.1, who was a close door neighbour of the
appellant and the deceased couple, has stated that on
14.08.1996 morning on hearing the death news of D-1, he went
to their house and found D-1 was lying dead and his wife D-2
CRA No.229 of 2000 Page 42 of 59
was lying in a state unconsciousness in a pool of blood and there
were marks of injuries on both the deceased couple. He further
stated that in the house, both the deceased couple and the
appellant along with his wife were staying.
P.W.2 who was also a close door neighbour of the
appellant and the deceased couple, has stated that on 14th
morning at about 4.30 a.m., on hearing the death news of D-1,
he had been to their house and found D-1 was lying dead and his
wife D-2 was lying unconscious with bleeding injuries. He further
stated that on being asked about the reasons of death, the
appellant pleaded about his ignorance.
The appellant himself in reply to question nos.7 and
9 in the accused statement as to whether he along with his
second wife Santilata were present in the house of the deceased
couple in the night of occurrence, has answered in affirmative.
The I.O. (P.W.14) also noticed a blood stained
Khanati (M.O.I) and broken bangles (M.O.II) were lying on the
floor of the bed room where the dead body of D-1 and injured D-
2 were lying, which were seized in presence of P.Ws.2 and 3
under seizure list Ext.2.
Thus, it is clear that the deceased couple along with
the appellant and his wife were residing in the spot house on the
CRA No.229 of 2000 Page 43 of 59
night of occurrence. The dead body of D-1 and the body of D-2
in unconscious state with injuries were also found in the early
morning in the bed room of the deceased couple. A blood stained
Khanati (M.O.I) and broken bangles (M.O.II) were lying on the
floor of the bed room.
Section 106 of the Evidence Act cannot be invoked to
make up the inability of the prosecution to produce evidence of
circumstances pointing to the guilt of the accused. This Section
cannot be used to support a conviction unless the prosecution
has discharged the onus by proving all the elements necessary
to establish the offence. It does not absolve the prosecution from
the duty of proving that a crime was committed even though it is
a matter specifically within the knowledge of the accused and it
does not throw the burden on the accused to show that no crime
was committed. To infer the guilt of the accused from absence of
reasonable explanation in a case where the other circumstances
are not by themselves enough to call for his explanation is to
relieve the prosecution of its legitimate burden. So, until a prima
facie case is established by such evidence, the onus does not
shift to the accused. Section 106 of the Evidence Act obviously
refers to cases where the guilt of the accused is established on
the evidence produced by the prosecution unless the accused is
CRA No.229 of 2000 Page 44 of 59
able to prove some other facts especially within his knowledge,
which would render the evidence of the prosecution nugatory. If
in such a situation, the accused offers an explanation which may
be reasonably true in the proved circumstances, the accused
gets the benefit of reasonable doubt though he may not be able
to prove beyond reasonable doubt the truth of the explanation.
But, if the accused in such a case does not give any explanation
at all or gives a false or unacceptable explanation, this by itself is
a circumstance which may well turn the scale against him. (Ref:
Anees -Vrs.- The State Govt. of NCT : 2024 INSC 368). In
the case of Rajendra -Vrs- State (NCT of Delhi) reported in
(2019) 10 Supreme Court Cases 623, it is observed that the
accused must furnish an explanation that appears to the Court to
be probable and satisfactory and if he fails to offer such an
explanation on the basis of facts within his special knowledge,
the burden cast upon him under section 106 of the Evidence Act
is not discharged and such failure by itself can provide an
additional link in the chain of circumstances proved against him.
At this stage, the rough sketch map (Ext.22) of the
house of the deceased couple prepared by the I.O. (P.W.13) is
relevant for consideration. It reveals that the house was square
in size and faces to the South. There are three rooms in the front
CRA No.229 of 2000 Page 45 of 59
side facing to the South whereas three rooms are situated in the
rear row being intervened by a courtyard with a well. The kitchen
room is situated in the eastern corner of the courtyard after the
inner verandah of the rear row of rooms. There was a verandah
to the west having an entrance door to the backyard. The stair
case is situated at the corner where the side verandah joins the
inner verandah attached to the front row of the rooms. Out of
the three front rooms, room no.1 as shown in the map, is the
entrance room having the entrance door leading to the outer
verandah. Room no.2 is used as a store whereas room no.3 is
the bed room of the deceased couple. Of the three rooms
situated in the rear row, room nos.11 and 12 are used as store
rooms and room no.10 is the store -cum- bed room of the
appellant and his second wife Santilata. From the spot map
(Ext.22), it appears that the bed room of the deceased couple
(room no.3) is accessible from the bed room of the appellant
(room no.10) through a side veranda and also through the
courtyard situated in the middle of the house.
P.W.9 who is a neighbour of the deceased couple has
stated that the house of the deceased couple consisted of six
rooms, out of which three were pucca and rest three were having
asbestos roof and the deceased couple were residing in the
CRA No.229 of 2000 Page 46 of 59
pucca rooms, whereas the appellant and his second wife
Santilata were residing in the asbestos rooms, which though
situated at a distance of 10 ft. but were interconnected.
The staircase which was shown as No.7 in the spot
map is situated in the side verandah which connects the rooms
of the deceased couple with the room of the appellant and his
wife Santilata. There is no evidence on record whether the
staircase was complete and having a room on the roof (in Odia,
it is called 'Sidhi Ghar') which was closed by door and that no
intruder can enter into the house through the stair case if such
door remained closed.
No evidence is available as to whether on the fateful
night, the doors leading to the bed room of the deceased couple
had been fully secured. No investigation has been conducted as
to whether there was any chance for the intruder to have access
inside the spot house of the deceased couple in the night of
occurrence and thus, the commission of crime by such intruder
entering into the house through the staircase or otherwise
cannot be completely ruled out. It was the duty of the
prosecution to prove that intruder's entry inside the spot house
in the occurrence night was next to impossible. Even though the
Scientific Officer along with his team arrived at the spot on
CRA No.229 of 2000 Page 47 of 59
requisition of the I.O. (P.W.14) on 14.08.1996 at 10 a.m. and
departed from the spot at 1 p.m. and thus remained there for
three hours and collected some exhibits from the spot room and
prepared the spot visit report Ext.30, but it does not indicate
that there was any foot print of the appellant in the spot room or
his finger print was found in Khanati with bamboo handle (M.O.I)
or on any object in the room and thus nothing was found in the
spot room to show that the appellant had entered inside to
commit the crime. No blood-stained wearing apparel of the
appellant was seized. All these are very vital aspects which go in
favour of the appellant. The conduct of the appellant in
remaining present in the spot house, calling the co-villagers on
detecting the crime committed, rushing to the police station and
lodging the F.I.R., accompanying the dead bodies for post
mortem examination, remaining available to the police right from
the date of his lodging of F.I.R. on 14.08.1996 till 05.02.1997
when second F.I.R. was lodged by P.W.13 speaks volumes about
his innocence. Unfortunately, the learned trial Court has not
given any importance to all these important aspects in favour of
the appellant without any cogent reasons.
CRA No.229 of 2000 Page 48 of 59
Whether registration of second F.I.R. (Ext.17) was
justified?:
17. Learned counsel for the appellant raised objection to
the registration of the second F.I.R. (Ext.17) at the instance of
P.W.13 since one F.I.R. (Ext.14) was already registered in
connection with the self-same incident.
Learned counsel for the State on the other hand
argued that when the complicity of the appellant and his wife
came to the fore during investigation conducted on the F.I.R.
lodged by the appellant, the I.O. (P.W.13) could have arrayed
both of them as accused without lodging a second F.I.R., but it
cannot be said to be an illegality or incurable defect of such a
nature which would create doubt over the conduct of the I.O. or
vitiate the entire prosecution case.
The appellant lodged the F.I.R. (Ext.14) on
14.08.1996 in connection with the crime in question, on the
basis of which, Jatni P.S. Case No.150 dated 14.08.1996 was
registered under section 302 of I.P.C. against D-1. During course
of investigation, P.W.13 on the basis of investigation conducted
by him as well as the previous I.O. (P.W.14) came to the
conclusion that the incident did not happen as reported by the
appellant in his F.I.R. (Ext.14), but the appellant himself was the
CRA No.229 of 2000 Page 49 of 59
author of the crime for which he lodged the F.I.R. (Ext.17) on
05.02.1997 whereupon Jatni P.S. Case No.25 dated 05.02.1997
was registered.
In the case of T.T. Antony (supra), it is held as
follows:-
''18.......Take a case where an FIR mentions
cognizable offence under Section 307 or 326
I.P.C. and the investigating agency learns during
the investigation or receives a fresh information
that the victim died, no fresh FIR under Section
302 I.P.C. need be registered which will be
irregular; in such a case alternation of the
provision of law in the first FIR is the proper
course to adopt. Let us consider a different
situation in which H having killed W, his wife,
informs the police that she is killed by an
unknown persons or knowing that W is killed by
his mother or sister, H owns up the
responsibility and during investigation, the truth
is detected; it does not require filing of fresh FIR
against H, the read offender, who can be
arraigned in the report under Section 173(2) or
173(8) of Cr.P.C., as the case may be. It is of
course permissible for the investigating officer to
send up a report to the concerned Magistrate
even earlier that investigation is being directed
against the person suspected to be the accused.
CRA No.229 of 2000 Page 50 of 59
19. The scheme of the Cr.P.C. is that an officer
in-charge of a police station has to commence
investigation as provided in Section 156 or 157
of Cr.P.C. on the basis of entry of the first
information report, on coming to know of the
commission of a cognizable offence. On
completion of investigation and on the basis of
evidence collected, he has to form opinion under
Section 169 or 170 of Cr.P.C., as the case may
be, and forward his report to the concerned
Magistrate under Section 173(2) of Cr.P.C.
However, even after filing such a report, if he
comes into possession of further information or
material, he need not register a fresh FIR, he is
empowered to make further investigation,
normally with the leave of the court, and where
during further investigation, he collects further
evidence, oral or documentary, he is obliged to
forward the same with one or more further
reports: this is the import of sub-section (8) of
Section 173 Cr.P.C.
20. From the above discussion, it follows that
under the scheme of the provisions of Sections
154, 155, 156, 157, 162, 169, 170 and 173 of
Cr.P.C., only the earliest or the first information
in regard to the commission of a cognizable
offence satisfies the requirements of Section 154
Cr.P.C. Thus, there can be no second F.I.R. and
consequently, there can be no fresh
CRA No.229 of 2000 Page 51 of 59
investigation on receipt of every subsequent
information in respect of the same cognizable
offence or the same occurrence or incident
giving rise to one or more cognizable offences.
On receipt of information about a cognizable
offence or an incident giving rise to a cognizable
offence or offences and on entering the F.I.R. in
the station house diary, the officer in-charge of a
police station has to investigate not merely the
cognizable offence reported in the FIR but also
other connected offences found to have been
committed in the course of the same transaction
or the same occurrence and file one or more
reports as provided in Section 173 of the
Cr.P.C.''
The principal object of first information report is to
set the criminal law into motion. At the stage of registration of a
crime or a case on the basis of the information disclosing a
cognizable offence in compliance with the mandate of section
154(1) of the Cr.P.C., the concerned police officer cannot
embark upon an enquiry as to whether the information laid by
the informant is reliable and genuine or otherwise and refuse to
register a case on the ground that the information is not reliable
or credible. The non-qualification of the word 'information' in
section 154(1) unlike in section 41(1)(a) and (g) of the Code
may be for the reason that the police officer should not refuse to
CRA No.229 of 2000 Page 52 of 59
record an information relating to the commission of a cognizable
offence and to register a case thereon on the ground that he is
not satisfied with the reasonableness or credibility of the
information. In other words, 'reasonableness' or 'credibility' of
the said information is not a condition precedent for the
registration of a case. The condition which is sine qua non for
recording a first information report is that there must be
information and such information must disclose a cognizable
offence. It is manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in-charge of a police
station satisfying the requirements of section 154(1) of the
Code, the said police officer has no other option except to enter
the substance thereof in the prescribed from, that is to say, to
register a case on the basis of such information. (Ref: A.I.R.
1992 S.C. 604 : State of Haryana -Vrs.- Ch. Bhajanlal).
In the factual scenario, when the appellant lodged
the F.I.R. vide Ext.14 and it disclosed a cognizable offence and
since at that stage, there was no scope to enquire into the
reasonableness or credibility of the information given by the
appellant, the F.I.R. was rightly registered. In view of the
principle laid down in the case of T.T. Antony (supra), when the
I.O. (P.W.13) while investigating the murder case on the basis of
CRA No.229 of 2000 Page 53 of 59
the F.I.R. lodged by the appellant vide Ext.14, found that the
appellant himself was the author of the crime, there was no
necessity in lodging a second F.I.R. vide Ext.17 arraigning the
appellant and his wife Santilata as an accused. Both of them
could have been arrayed as accused in the case which was
instituted at the instance of the appellant as informant. We are
of the humble view that the informant of a case is not excluded
from becoming an accused in the same case, if during course of
investigation, materials come against him relating to his
complicity in the crime. In other words, even an informant can
be charge sheeted as accused in the same case, if clinching
materials come against him in course of investigation. However,
the lodging of second F.I.R. relating to the same occurrence can
be said to be an irregularity in the factual scenario and not an
illegality which would vitiate the prosecution case. It cannot be
said that the appellant was prejudiced merely because P.W.13
lodged the F.I.R. vide Ext.17 arraigning him as an accused while
investigating the case initiated at the instance of the appellant.
Whether the investigation conducted by P.W.13 suffers
from illegality:
18. Learned counsel for the appellant argued that P.W.13
being the informant in the second F.I.R. (Ext.17) should not
CRA No.229 of 2000 Page 54 of 59
have conducted the investigation and it should have been
entrusted to some other competent officer of the police station.
Learned counsel for the State on the other hand
argued that unless any bias or mala fide is attributed against
P.W.13, there is no justification in raising finger towards the
investigation conducted by him as there was no legal bar on his
part to investigate the case.
A police officer who has recorded F.I.R. on the basis
of information received is competent to take up investigation and
submit final form/final report. There is nothing in the provision of
Criminal Procedure Code which disqualifies him from taking of
investigation of the cognizable offence. There is no principle or
binding authority to hold that the moment the competent police
officer, on the basis of information received makes out an F.I.R.
incorporating his name as the informant, he forfeits his right to
investigate. Such investigation could only be assailed on the
ground of bias or real likelihood of bias on the part of the
investigating officer. The question of bias would depend on the
facts and circumstances of each case. (Ref: A.I.R. 2004 S.C.
2684 : State -Vrs.- V. Jaya Paul).
In the case of Mukesh Singh -Vrs.- State
(Narcotic Branch of Delhi) reported in (2020) 10 Supreme
CRA No.229 of 2000 Page 55 of 59
Court Cases 120, it is held that in a case where the informant
himself is the investigator, by that itself cannot be said that the
investigation is vitiated on the ground of bias or the like factor.
The question of bias or prejudice would depend upon the facts
and circumstances of each case. Therefore, merely because the
informant is the investigator, by that itself the investigation
would not suffer the vice of unfairness or bias and therefore, on
the sole ground that informant is the investigator, the accused is
not entitled to acquittal. The matter has to be decided on a case-
to-case basis.
Moreover, any defect or irregularity during
investigation, unless deliberate and for some other ulterior
motive is immaterial. There is nothing on record that as an
investigating officer, P.W.13 intentionally avoided to collect the
required evidence and failed to take appropriate steps which he
is expected to take.
Conclusion:
19. In view of the foregoing discussion, we are of the
view that the circumstances have not been established with
clinching evidence and the circumstances taken together do not
form a complete chain. The motive behind the commission of the
crime has not been proved by the prosecution. The conduct of
CRA No.229 of 2000 Page 56 of 59
the appellant after the occurrence was very natural and cannot
lead to any inference of guilt. The inconsistent plea taken by the
appellant coupled with his presence in the spot house in another
room in the night of occurrence and his absconding after
registration of the second F.I.R. cannot be the sole factor to find
him guilty of the offences charged.
We are of the view that the assessment of the
evidence has not been done in accordance of law by the learned
trial Court. In the aforesaid circumstances, no conviction can be
based on circumstantial evidence since adduced in the case. The
conviction seems to be based more on surmise and conjecture
than on any reliable evidences from which an irresistible
conclusion about the complicity of the appellant in committing
the murder, can at all be drawn. The conclusion arrived at by the
learned trial Court in convicting the appellant and the reasonings
assigned for arriving at such conclusion is not borne out of the
record and it seems that the learned trial Court has proceeded
pedantically without making an in-depth analysis of facts and
circumstances and the evidences laid in the trial. In our opinion,
the legal duty to separate the grain from the chaff has been
abandoned by the learned trial Court and therefore, the entire
approach is faulty and fallible which deserves to be rectified and
CRA No.229 of 2000 Page 57 of 59
upturned. Law is well settled that the fouler the crime, the higher
should be the proof. In the absence of legal proof of a crime,
there can be no legal criminality. 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.
In view of the facts and circumstances as discussed
above, we are not able to agree with the findings of the learned
trial Court and we hold that the case against the appellant has
not been established by the prosecution beyond all reasonable
doubts.
20. In the result, the criminal appeal is allowed and the
impugned judgment and the order of conviction and the
sentence passed thereunder is hereby set aside and the
appellant is acquitted of the charges under sections 302 and 201
of I.P.C. The appellant was released on bail by this Court during
pendency of the appeal vide order dt. 23.04.2001 in Misc. No.
159 of 2001. He is hereby discharged from liability of the bail
bonds and the surety bonds shall also stand cancelled.
Before parting with the case, we would like to put on
record our appreciation to Mr. Sashibhusan Das, learned counsel
for the appellant for rendering his valuable help and assistance
CRA No.229 of 2000 Page 58 of 59
towards arriving at the decision above mentioned. This Court
also appreciates the valuable help and assistance provided by
Mr. Partha Sarathi Nayak, learned Additional Government
Advocate.
The trial Court records with a copy of this judgment
be sent down to the learned trial Court forthwith for information.
..........................
S.K. Sahoo, J.
Chittaranjan Dash, J. I agree.
..................................
Chittaranjan Dash, J.
Orissa High Court, Cuttack
The 9th October 2025/PKSahoo
Location: HIGH COURT OF ORISSA, CUTTACK
