Orissa High Court
2 vs State Of Odisha on 14 October, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No.20 of 2002
An appeal from the judgment and order dated 02.05.2002
passed by the Sessions Judge
Judge, Mayurbhanj, Baripada in Sessions
S
Trial Case No.212 of 2000
2000.
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Jataram Ho ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant
Appellant: - Mr. Debi Prasad Dhal
Senior Advocate
Forr Respondent
Respondent: - Mr. Sarat Ch. Pradhan
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE
BLE MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing and Judgment
Judgment: 14.10.2025
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By the Bench: Appellant Jataram Ho along with co-accused Sitaram
Ho faced trial in the Court of the learned Sessions Judge,
Judge
Mayurbhanj, Baripada in Sessions Trial Case No.212 of 2000 for
the offence punishable under Section 302/34 of the Indian
ndian Penal
Code (in short 'IPC') on the accusation that on 14.01.2000 at
about 3.00 p.m. at village Brahmanipal, in furtherance of their
common intention, they committed murder of Gajendra Dalai
(hereinafter 'deceased').
The learned trial Court, vide impugned judgment and
order dated 02.05.2002
02.05.2002, though acquitted the co-accused
accused
Sitaram Ho of the charge under section 302/34 of IPC, but found
the appellant guilty under section 302 of IPC and sentenced him
to undergo imprisonment for life.
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter 'the F.I.R.') (Ext.1) lodged by one Mangalal
Singh (P.W.1),, the Ward Member of village Brahmanipal,
nipal, on
15.01.2000 before the Officer in
in-charge of Sarat police station
station,
in short, is that on 14.01.2000 he had been to the village pond,
locally known as 'Padma
Padma Pokhari' to get fish coming to know
about fish catching a
activities going on. Att about 3.30 p.m.,
p.m. while
he was returning home, on the way Baidhar Ho (P.W.5) met him
and told him that about half an hour back, after returning from
the pond, he found the dead body of the deceased was lying on
the thrashing floor of his house with bleeding injuries on the legs
and right hand. Getting such information from P.W.5, P.W.1
rushed to the spot and found the dead body of the deceased was
lying in the thrashing floor with injuries on his legs and hand. He
got information from Champa Hembram (P.W.3),, the wife of
P.W.5 that both the appellant Jataram Ho and co-accused
accused
Sitaram Ho quarrelled with the deceased and assaulted the
deceased by means of a 'Budia'
' udia' (axe) and killed him. P.W.1
intimated the matter to the Gramarakhi, who also
also came to the
spot and saw the dead body. Since by that time, night had set
in, F.I.R. was lodged on the next day i.e. on 15.01.2000.
On the basis of the report submitted by P.W.1, Sarat
P.S. Case No.03
3 dated 15.01.2000 was registered under section
302/34 of IPC against the appellant Jataram Ho and the co-
co
accused Sitaram Ho and P.W.9 Banabihari Mohanty, the O.I.C. of
Sarat police station took up the investigation of the case
case.
During the course of investigation, P.W.9 examined
the informant (P.W.1) and other witnesses, visited the spot and
prepared spot map (Ext.8),
(Ext.8), held inquest over the dead body of
the deceased and prepared the inquest report (Ext.5),
(Ext.
dispatched the dead body for post mortem examination tthrough
the constable vide dead body challan (Ext.6),, searched for the
accused persons, but found them absconding.
absconding. On 16.01.2000, he
arrested the appellant so also the co-accused
co accused Sitaram Ho and
while in police custody, the appellant stated to have given a
statement regarding concealing the weapon of offence i.e. axe
(M.O.I) and accordingly, his disclosure statement under section
27 of the Evidence
vidence Act was recorded vide Ext.7 and the axe
(M.O.I) was recovered as per the seizure list Ext.2/1. A brown
colour napkin was seized on 16.01.2000 on being produced
produ by
co-accused
accused Sitaram Ho as per seizure list Ext.3/1 and on
17.01.2000, both the appellant and the co-accused
co accused were
forwarded to the Court. On 26.04.2000, P.W.9 made over the
charge of investigation to P.W.7 Damodar Mohapatra, his
successor, who during course of his investigation, sent the seized
articles to the S.F.S.L., Bhubaneswar for chemical examination
and on completion of investigation, he submitted charge sheet
against the appellant and the co-accused
co accused Sitaram Ho under
section 302/34 of IPC
IPC.
Framing of Charges
Charges:
3. On receipt of the charge sheet, the case was
committed
mmitted to the Court of Session following due procedure,
procedure
where the learned trial Court
Court framed charge against the
appellant so also the co
co-accused Sitaram Ho as aforesaid.
aforesaid Both
the appellant and the co
co-accused pleaded not guilty and claimed
to be tried and accordingly
accordingly, the sessions trial procedure was
resorted to establish their guilt.
Prosecution Witnesses, Exhibits & Material Objects:
Objects
4. In order to prove its case, the prosecution examined
as many as nine numbers of witnesses.
P.W.1 Mangalal Singh,
Singh, who is the Ward Member of
Village Bramhanipal, is the informant in the case. He stated that
on being informed by Baidhar Ho (P.W.5) regarding
g the death of
the deceased, he had been to the spot and found that the dead
body of the deceased was lying with injuries on his leg and also
found blood on the thrashing floor. He further stated that he
along with P.W.5 went to Grama Rakshi (P.W.2) and told him
about the death of the deceased and P.W.2 came to the spot and
saw the dead body and on the next day, they went to the police
station and he orally reported the matter to the police, which
was reduced into writing. He proved his report as Ext.1.
P.W.2 Durga Prasad Gandual was the Grama Rakshi
and also a co-villager
villager of the appellant and he stated that on
getting information from P.W.1, he had been to the spot and
found the
e dead body of the deceased lying on the thrashing floor
of P.W.5. He also accompanied P.W.1 to the police station when
F.I.R. was lodged.
P.W.3 Champa Hembram,, who is the wife of P.W.5
P.W.5,
did not support the prosecution cas
case for which she was
as declared
hostile
tile by the prosecution
prosecution.
P.W.4 Ubuga Ho is a witness to the seizure but he
has not supported the prosecution case.
case
P.W.5 Baidhar Ho is a witness to the seizure but he
also did not support the prosecution case
case.
P.W.6 Jasoda Dalai, who is the widow of the
deceased,, has stated that on the date of occurrence, she had
been to the forest and on her return, she sat on the verandah of
her house and at that time,
time one Joda and Rabi arrived near her
and used filthy language and threatened to kill her and they also
al
told that they had already killed her husband (deceased).
(deceased) On
hearing the same, she had been to the village Brahmanipal and
saw the dead body of her husband lying in the thrashing floor of
P.W.5 with injuries on his leg and hand. She also stated that she
found drops of blood near the dead body and thereafter, she
went to the Grama R
Rakhi and reported the matter.
P.W.7 Damodar Mohapatra was the O.I.C. of Sarat
police station, who took over charge of investigation from P.W.9
and submitted the charge sheet.
P.W.8 Dr. Srinivas Naik was working as Surgery
Specialist in S.D. Hospital, Udala, who conducted post mortem
examination over the dead body of the deceased and proved his
report vide Ext.4.
P.W.9 Banabihari Mohanty,
Mohanty was working as O.I.C. of
Sarat police station
station, who investigated the case from the
beginning and handed over the charge of investigation to P.W.7
P.W.7.
The prosecution proved eleven numbers of
documents as exhibits. Ext.1 is the F.I.R., Ext.2/1, Ext.3/1 and
Ext.9 are the seizure lists, Ext.4 is the post mortem report, Ext.5
is the inquest report, Ext.6 is the dead body challan, Ext.7 is the
disclosure statement of the appellant, Ext.8
8 is the spot map,
Ext.10 is the Chemical
hemical Examination Report
eport and Ext.11 is the
report of the
e Serologist.
The prosecution also produced two numbers of
material objects. M.O.I is the axe and M.O.II is the napkin.
napkin
Defence Plea:
5. The defence plea of the appellant is one of denial and
it is pleaded that on account of political hostility, he has been
falsely implicated in the case.
Findings of the Trial Court
Court:
6. The learned trial Court,
C after analysing
ing the evidence
of the doctor (P.W.8) and the report (Ext.4) submitted by him,
came to hold that the prosecution has proved that the deceased
died a homicidal death
death. Relying
elying on the evidence of extra judicial
confession made by the appellant before P.W.6 and the medical
evidence adduced by the doctor (P.W.8) and the recovery of
M.O.I at the instance of the appellant as stated by the I.O.
(P.W.9) though acquitted the co
co-accused Sitaram Ho,, but found
the appellant guilty under section 302 of IPC.
Contentions of the Parties
Parties:
7. Mr. Debi Prasad Dhal
Dhal, learned Senior Advocate
appearing
ring on behalf of the appellant emphatically contended that
the conclusions arrived at by the learned trial Court is completely
erroneous and there are no clinching evidence on record to
sustain conviction of the appellant under section 302 IPC. It is
argued that though in the F.I.R.,
F.I.R. it is stated that the informant
(P.W.1)
.W.1) came to know from P.W.3
.3 that the appellant and the co
co-
accused assaulted the deceased during quarrel
quarrel,, but P.W.3 has
been declared hostile by the prosecution and even the informant
(P.W.1) has not stated in his evidence to have received any
information from P.W.3 that she was
s an eye witness to the
occurrence and that the appellant and the co-accused
co accused Sitaram
Ho were the assailants of the deceased
deceased.. Learned counsel further
submitted that P.W.6, who is widow of the deceased stated to be
a witness to the ext
extra
ra judicial confession, has simply stated that
one Joda and Rabi had disclosed before her that they had killed
her husband (deceased), but she has stated that she did not
know the accused persons standing in the dock.. Therefore, it
cannot be said that the appellant came before P.W.6 and made
an extra judicial confession. He further argued that even though
as per the prosecution case, one axe was seized at the instance
of the appellant as deposed to by the I.O. (P.W.9) and the C.E.
report (Ext.10) also indicates
indicates that human blood of Group 'A' was
found in the said weapon, since the prosecution has failed to
establish any link between the said weapon with the crime in
question, mere recovery of the axe (M.O.I) has got no relevance
in this case and even though it can be said that the prosecution
has proved the homicidal death of the deceased, but in absence
of any direct evidence to establish the complicity of the appellant
in the murder of the deceased, the circumstances available on
record do not form a complete chain and therefore, the
conviction of the appellant is not sustainable in the eye
eyes of law.
Mr. Sarat Chandra Pradhan, learned Additional
Standing Counsel appearing for the State supported the
impugned judgment and the or
order of conviction.
Whether the deceased died a homicidal death?
death?:
8. Before adverting to the contentions
contentions raised by the
learned counsel for the respective parties, let us first examine
whether the prosecution has successfully established that the
deceased met with a homicidal death or not. Apart from the
inquest report (Ext.5)
(Ext.5 prepared by P.W.9,, it appears that the
Medical Officer (P.W.8)
(P.W. attached to the S.D. Hospital, Udala,
Udala who
conducted the post--mortem
mortem examination over the dead body
bod of
the deceased on 16.01.2000, found the following external
injuries:
"(A) There were four nos. of lacerated wounds
on the posterior aspect of left thigh. All the
injuries transversely placed. All the injuries were
bone deep of
(i) size of the injury 4" x 2" x 3"
(ii) Size of the injury 5" x 3" x 2"
(iii) Size of the injury 3" x 2" x 3"
(iv) Size of the injury 4" x 1" x 3"
(B). There were three lacerated injuries on the
medial aspect of left leg below knee.
(i) 1" below the knee joint size 4" x 1" x 2
(ii) 2" below knee joint size 4" x 2" x ½"
(iii) 3" below knee joint size 3" x 1" x 2"
(C) Compound fracture of right arm medial
aspect, 3 nos. of lacerated wounds on the
posterior lateral aspect of right arm, compound
pound
fracture of right femur, which 2 nos. of lacerated
wounds about 4" knee posteriorly. The fracture
of partial and lacerated wound on the anterior
aspect of knee.
The doctor further stated that the
he cause of death was
due to severe bleeding and shock.
shock He proved the post-mortem
mortem
report marked as Ext.4 and further opined that the cause of
death was due to severe bleeding.
Nothing has been brought out in the cross-
cross
examination of P.W.8 to challenge regarding the homicidal death
of the deceased.
Mr. D.P. Dhal, learned Senior Advocate appearing for
the appellant has also not challenged the evidence of the doctor.
Thus,, we are of the view that on the basis of the
evidence of the doctor (P.W.8)
(P.W.8),, the P.M. report finding vide Ext.4
and the inquest report
ort (Ext.5),, the learned trial Court has rightly
arrived at the conclusion that the prosecution has successfully
established that the deceased died a homicidal death.
Absence of direct evidence:
evidence
9. The
he informant (P.W.1) has mentioned in the F.I.R.
that he came to know from P.W.3 that the appellant as well as
the co-accused
accused assaulted the deceased by means of a ''Budia'
during course of a quarrel,
quarrel however the evidence of P.W.1 is
silent that any such information has been received by him from
P.W.3. Moreover, P.W.3
P.W.3 has stated that she was not present
when the occurrence took place during Makar festival and that
she could not say about the occurrence. The prosecution has
declared P.W.3 as hostile. Therefore, there
the is no direct evidence
on record for the purpose of
of finding the complicity of the
appellant in the crime in question.
Circumstantial evidence
evidence:
10. Law
aw is well settled that when
hen a case rests upon the
circumstantial evidence, such evidence must satisfy th
the
e following
tests: (i)) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established; (ii)
(
those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused; ((iii)) the circumstances,
taken cumulatively, should form a cha
chain
in so complete that there
is no escape from the conclusion that within all human
probability the crime was committed by the accused and none
else. The circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any
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
strong, should not be allowed to take the
place of proof. A moral opinion howsoever strong or genuine and
suspicion, howsoever
wsoever 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
ane of 'must be true'.
P.W.1 and P.W.2 are the post occurrence witnesses
and they have stated to have come to the spot and found the
dead body of the deceased lying with some injuries.
P.W.6 Jasoda Dalai, who is the widow of the
deceased, has stated tha
thatt she did not know the accused persons.
However, she stated that the occurrence took place during Makar
festival and she had been to the forest and while she was sitting
on the verandah of her house, at that point of time, one Joda
and Rabi arrived near her and threatened her to kill and also
stated that they had killed her husband (deceased). She however
stated that she saw the deceased lying in the thrashing floor of
Baidhar Ho (P.W.5).
In view of the evidence of P.W.6, it does not appear
that the persons, who made extra judicial confession before her
are the appellant and the co-accused
co Sitaram Ho inasmuch as
she has stated that she did know
w the accused persons. The
prosecution has also not brought on record that those two
t
persons, who made extrajudicial confession before her are the
accused persons standing in
n the dock. Therefore, we are of the
view that it cannot be said that the appellant made any extra
judicial confession before P.W.6 and thus the learned trial Court
committed error in placing reliance on the evidence of P.W.6 and
holding her to be a witness to the extra judicial confession of the
appellant before her.
Recovery of Axe (M.O.I)
(M.O.I):
11. The evidence of the I.O. (P.W.9) only indicates that
after arrest of the appellant, he made a disclosure statement
which was recorded as per Ext.7. The I.O. further stated that
one axe (M.O.I) was seized by him.. The evidence is completely
silent to the effect that after giving disclosure statement, the
appellant led the police party and the witnesses to the place of
concealment and that at the instance of the appellant, the axe
was seized. No independent witness has been examined to
substantiate the seizure of axe (M.O.I) at the instance of the
appellant. Therefore, the seizure of M.O.I does not clearly come
within the purview of section 27 of the Evidence Act.
Even though the Chemical
C Examination
xamination Report
(Ext.10) indicates that the axe which was seized as per the
seizure list Ext.2/1 was found to be containing human blood of
Group 'A', but nothing has been established to connect this
particular weapon with the offence in question and moreover, iit
has not been proved that the deceased was having blood group
of 'A'. Therefore, on the basis of recovery of axe (M.O.I)) as per
the seizure list Ext.2/1 and C.E. Report finding,, it cannot be said
that the prosecution has proved the charge under section 302 of
IPC against the appellant.
Conclusion:
12. In view of the foregoing discussions, we are of the
humble view that the learned trial Court was not justified in
relying on the so-called
called extra judicial confession stated to have
been made before P.W.6 as well as recovery of M.O.I for
convicting the appellant under section 302 of IPC. Thus, the
conviction
tion of the appellant under section 302 of IPC is not legally
sustainable in the eye
eyes of law.
In the result, the
the Criminal Appeal is allowed. The
impugned judgment and order of conviction of the appellant
under section 302 of the IPC and the sentence pass
passed
thereunder is hereby set aside and the appellant is acquitted of
the charge under section 302 of IPC.
IPC
The appellant is on bail by virtue of the order of this
Court. He is discharged from the liability of bail bonds. The
personal bonds and the surety bonds stand cancelled.
................................
...............................
S.K. Sahoo, J.
...............................
........
Reason: Authentication Orissa th
High Court, Cuttack
Location: HIGH COURT OFThe ORISSA
14 October 2025/PKSahoo
Date: 17-Oct-2025 13:23:40
