Orissa High Court
Barun Behera vs State Of Odisha on 9 September, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No.20 of 2013
An appeal under section 374 of Cr.P.C. from the judgment and
order dated 22.12.2012 passed by the Sessions Judge,
Dhenkanal in C.T./Ss. Case No.109 of 2011.
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Barun Behera ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Gokulananda Padhi
Advocate
For Respondent: - Mr. Aurovinda Mohanty
Addl. Standing Counsel
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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: 02.09.2025 Date of Judgment: 09.09.2025
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S.K. Sahoo, J. The appellant Barun Behera faced trial in the Court of
learned Sessions Judge, Dhenkanal in C.T./Ss. Case No.109 of
2011 for commission of offences punishable under sections
JCRLA No.20 of 2013 Page 1 of 54
302/201 of the Indian Penal Code (hereinafter „I.P.C.‟) on the
accusation that on 23.03.2011 in between 12.30 p.m. to 2.30
p.m. near Kanarpur hill under Sadar police station in the district
of Dhenkanal, he committed murder of Priyabrata Pati @ Pintu
(hereinafter „the deceased‟) by intentionally causing his death
and also knowing or having reason to believe that the offence
had been committed, he caused certain evidence connected with
the said offence to disappear by concealing the dead body of the
deceased after committing the murder hurriedly under a Neem
tree in a stone ditch (Pathar Khola) with the intention to screen
himself from legal punishment.
The learned trial Court vide impugned judgment and
order dated 22.12.2012 found the appellant guilty of the
offences charged and sentenced him to undergo imprisonment
for life and to pay a fine of Rs.10,000/- (rupees ten thousand), in
default, to undergo further R.I. for a period of one year for the
offence under section 302 of the I.P.C. and to undergo R.I. for a
period of three years and to pay a fine of Rs.2,000/- (rupees two
thousand), in default, to undergo further R.I. for six months for
the offence under section 201 of the I.P.C.
JCRLA No.20 of 2013 Page 2 of 54
Prosecution Case:
2. The prosecution case, as per the first information
report (hereinafter „F.I.R.‟) (Ext.12) presented by Dandapani
Behera (P.W.14) of village Khuntujhari before the Inspector in-
charge of Dhenkanal Sadar police station on 23.03.2011 at about
3.30 p.m., in short, is that on the same day, he along with his
friends Susant Prusty, Nishakar Pradhan (P.W.7), Jitu Sahu
(P.W.10) and Babuli Sahu (P.W.11) of village Indupur were
arranging a feast at Dhenkaborei near Suakhainala. At about
12.30 p.m., the informant noticed two boys passing through
Kanarpur village by walking. At about 2.30 p.m., out of the duo,
one i.e. the appellant returned. Noticing the pant and the shirt of
the appellant were stained with blood, when the informant and
his friends asked the appellant about the other boy who had
accompanied him sometime before, the appellant not only
disclosed his name and address, but also gave the identity of
that boy as deceased Pintu @ Priyabrata Pati, son of Pabitra
Mohan Pati and also confessed to have committed murder of the
deceased by means of a knife by slitting his throat and thrown
his dead body on the hilltop. Being frightened, the informant and
his friends informed the matter to one Kunjabihari Sahu (P.W.4)
over phone, who instructed them to detain the appellant there.
JCRLA No.20 of 2013 Page 3 of 54
After the arrival of P.W.4, all of them went to Kanarpur hillock
with the appellant, where the appellant showed the dead body of
the deceased, which was burnt about 75% and lying under a
Neem tree inside a stone ditch facing downward. They also
noticed severe bleeding injury on the throat of the deceased. On
their return down the hillock, P.W.4 informed about the incident
to the police over his mobile phone and on arrival of the I.I.C.,
Sadar P.S., a written report was lodged by P.W.14 at the spot.
P.W.17, the I.I.C., Dhenkanal Sadar P.S. on receipt
of the written report of P.W.14, treated the same as F.I.R. and
took up investigation of the case after sending the report
through A.S.I. Girish Ch. Pradhan to the police station for
registration of the case. On receipt of the written F.I.R., the S.I.
of Police, who was in charge of the P.S. in absence of P.W.17,
registered Dhenkanal Sadar P.S. Case No.82 dated 23.03.2011
under sections 302/201 of the I.P.C.
During the course of investigation, P.W.17 examined
the informant (P.W.14) and other witnesses. He visited the spot,
prepared the spot map (Ext.19) and took the appellant to his
custody and seized one black colour rexine bag containing one
Nokia mobile phone, a money purse with cash of Rs.220/-, voter
identity card of the deceased and one pant, one turkish towel,
JCRLA No.20 of 2013 Page 4 of 54
one shawl from the possession of the appellant as per seizure list
Ext.3/1. The I.O. then arrested the appellant and recorded his
statement under section 27 of the Evidence Act and thereafter,
the appellant led him and the witnesses to the place of
concealment of the weapon of offence (knife) i.e. top of
Kanarpur hillock, where the dead body of the deceased was lying
in a half burnt condition and gave recovery of a knife from inside
the ashes which was seized as per seizure list Ext.4/1. P.W.17
held inquest over the dead body of the deceased in presence of
the witnesses and prepared the inquest report (Ext.2). He sent
the dead body for post mortem examination to D.H.H.,
Dhenkanal and seized the blood-stained earth, sample earth,
saline extract in gauze cloth, sample gauze cloth, saline extract
of blood from the knife, ashes, dry leaves stained with blood on
production by the Scientific Officer as per seizure list vide Ext.8.
P.W.17 also sent the appellant for his medical examination as he
found some injuries on his person, made a request to the
A.D.M.O., D.H.H., Dhenkanal to collect the blood sample and nail
clippings of the appellant and on 24.03.2011, he seized one vial
containing sample blood and another vial containing nail
clippings of the appellant as per seizure list (Ext.1). He also
seized the wearing apparels of the appellant stained with blood
JCRLA No.20 of 2013 Page 5 of 54
as per seizure list Ext.13, seized the wearing apparels of the
deceased, sample blood of the deceased and command
certificate as per seizure list Ext.7, received the post mortem
examination report (Ext.9) of the deceased from the D.H.H.,
Dhenkanal and also the injury report of the appellant vide
Ext.17/2. P.W.17 sent the weapon of offence along with a query
to the A.D.M.O., D.H.H., Dhenkanal and received the query
report (Ext.10) along with the weapon of offence. He made a
prayer to the S.D.J.M., Dhenkanal for sending the exhibits for
chemical examination and accordingly, the exhibits were sent
and the chemical examination report (Ext.22) was received. On
19.06.2011, P.W.17 left the Nokia mobile set, money purse and
Voter Identity Card of the deceased in the zima of P.W.16, the
father of the deceased as per zimanama (Ext.14). On completion
of investigation, P.W.17 submitted charge sheet on 30.06.2011
under sections 302/201 of the I.P.C. against the appellant.
Framing of Charges:
3. On submission of charge sheet, the case was
committed to the Court of Session after complying due
formalities. The learned trial Court framed charges against the
appellant as aforesaid and since the appellant refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
JCRLA No.20 of 2013 Page 6 of 54
trial procedure was resorted to prosecute him and establish his
guilt.
Prosecution Witnesses, Exhibits and Material Objects:
4. During the course of trial, in order to prove its case,
the prosecution has examined as many as eighteen witnesses.
P.W.1 Biranchi Naik is a witness to seizure of one vial
containing sample blood and another vial containing nail
clippings of the appellant as per seizure list Ext.1.
P.W.2 Bichitra Mohan Pati is the paternal uncle of the
deceased. He stated that when he heard that the appellant
committed murder of his nephew (deceased) and the appellant
was detained at police station, he rushed to the police station
and came to know that the appellant with a pretext to return
back the borrowed money of Rs.10,000/- (rupees ten thousand)
to the deceased, called him to the village of his aunt at
Khuntujhari and committed murder of the deceased and
disposed of the dead body.
P.W.3 Rabi Narayan Nath stated that he along with
the villagers came to the police station to ascertain the cause of
death of deceased and there they came to know that the
appellant with a pretext to return back the borrowed money of
Rs.10,000/- (rupees ten thousand) to the deceased, called him
JCRLA No.20 of 2013 Page 7 of 54
to the village of his aunt at Khuntujhari and committed murder
of the deceased and disposed of the dead body.
P.W.4 Kunja Bihari Sahu is the elder brother of
P.W.10, who stated that P.W.10 informed him about the
occurrence over phone and requested him to inform the local
police and accordingly, he informed the local police about the
murder of the deceased by the appellant. He supported the
prosecution case. He further stated to have visited the spot
where he found the dead body with injuries and about the
confession made by the appellant.
P.W.5 Dibya Ranjan Nath is a witness to the inquest
over the dead body of the deceased which was held on the
hilltop of village Kanarpur and he proved the inquest report vide
Ext.2.
P.W.6 Dipak Kar did not support the prosecution case
for which he was declared hostile by the prosecution.
P.W.7 Nishakar Pradhan, P.W.10 Jitu @ Jitendra
Kumar Sahu and P.W.11 Babuli Sahu are the friends of the
informant (P.W.14), who were organising picnic at Suakhainala
on the date of occurrence. All of them supported the prosecution
case.
JCRLA No.20 of 2013 Page 8 of 54
P.W.8 Biswanath Pratihari is a witness to the
disclosure statement of the appellant recorded vide Ext.6/1 and
also a witness to the seizure of knife (M.O.II) as per seizure list
Ext.4/1 and one rexine bag containing a Nokia mobile phone, a
money purse with Rs.220/-, Voter Identity Card and wearing
apparels of the deceased as per seizure list vide Ext.3/1, all at
the instance of the appellant.
P.W.9 Bikram Jena is a witness to the seizure of
wearing apparels of the deceased and command certificate as
per seizure list vide Ext.7 and blood stained earth, sample earth,
saline extract of blood, sample of gauze cloth, ashes and dried
leaves stained with blood as per seizure list Ext.8.
P.W.12 Subhashree Pati is the sister of the deceased.
She stated that on the date of occurrence, in the morning hours
at about 9 a.m., she and her deceased brother were in their
house and at that time, the appellant came to their house and
called the deceased to accompany him to village Khuntajhari to
the house of his aunt for making repayment of borrowed money
of Rs.10,000/- (rupees ten thousand). She further stated that
the deceased went with the appellant and on the same day at
about 3.30 p.m., she got information from her villagers that the
JCRLA No.20 of 2013 Page 9 of 54
appellant had committed murder of the deceased and burnt the
dead body in the hillock.
P.W.13 Dr. Pratap Kumar Das was posted as the
Assistant Surgeon at D.H.H., Dhenkanal, who on police
requisition, conducted post mortem examination over the dead
body of the deceased on 24.03.2011 and proved P.M. report vide
Ext.9 and his query report vide Ext.10 and his endorsement on
the requisition submitted by P.W.17 vide Ext.11.
P.W.14 Dandapani Behera is the informant in the
case and he supported the prosecution case.
P.W.15 Dibakar Behera is a witness to seizure of one
navy blue colour full pant stained with blood and one white
stripped full shirt stained with blood on production by the
appellant as per seizure list vide Ext.13. He further stated about
the seizure of one vial containing sample blood and nail clippings
of the appellant by the I.O. as per seizure list vide Ext.1.
P.W.16 Prasanna Kumar Pati is the father of the
deceased. He stated in similar manner like P.W.12. He took zima
of one Nokia mobile set, one money purse containing Rs.220/-
and the voter identity card of the deceased from the I.O. as per
zimanama vide Ext.14.
JCRLA No.20 of 2013 Page 10 of 54
P.W.17 Sushil Kumar Senapati was working as the
I.I.C. of Dhenkanal Sadar police station, who is the Investigating
Officer of the case.
P.W.18 Dr. Rajkishore Sethy was posted as the
Medical Specialist at D.H.H., Dhenkanal, who on police
requisition, examined the appellant and proved his report vide
Ext.17/2.
The prosecution exhibited twenty two documents.
Ext.1 is the seizure list in respect of one vial containing sample
blood and another vial containing nail clippings of the appellant,
Ext.2 is the inquest report, Ext.3/1 is the seizure list in respect of
one rexine bag containing a Nokia mobile phone, a money purse
with Rs.220/-, Voter Identity Card and wearing apparels of the
deceased, Ext.4/1 is the seizure list in respect of a knife, Ext.6/1
is the statement of appellant, Ext.7 is the seizure list in respect
of wearing apparels of the deceased and command certificate,
Ext.8 is the seizure list in respect of blood stained earth, sample
earth, saline extract of blood, sample of gauze cloth, ashes and
dried leaves stained with blood, Ext.9 is the post mortem report,
Ext.10 is the report of P.W.13, Ext.11 is the endorsement of
P.W.13, Ext.12 is the written F.I.R., Ext.13 is the seizure list in
respect of one navy blue colour full pant stained with blood and
JCRLA No.20 of 2013 Page 11 of 54
one white stripped full shirt stained with blood, Ext.14 is the
zimanama, Ext.15 is the dead body challan, Ext.16 is the
command certificate, Ext.17 is the requisition to M.O., Ext.18 is
the spot visit report, Ext.19 is the spot map, Ext.20 is the prayer
of P.W.17 to S.D.J.M., Ext.21 is the forwarding report and Ext.22
is the Chemical Examination Report.
The prosecution also proved fifteen material objects.
M.O.I is the shirt of the appellant, M.O.II is the knife, M.O.III is
the red colour ganjee, M.O.IV is the chadi, M.O.V is the blood
stained earth, M.O.VI is the sample earth, M.O.VII is the saline
extract of blood from surface of stone, M.O.VIII is the sample
gauze cloth, M.O.IX is the saline extract of blood from knife,
M.O.X is the sample gauze cloth, M.O.XI is the ash collected
from the spot, M.O.XII is the leaves, M.O.XIII is the half burnt
shirt, M.O.XIV is the blood stained full pant and M.O.XV is the
blood sample of the appellant.
Defence Plea:
5. The defence plea of the appellant is one of denial.
Defence has neither examined any witness nor exhibited any
document.
JCRLA No.20 of 2013 Page 12 of 54
Findings of the Trial Court:
6. The learned trial Court after assessing the oral as
well as documentary evidence on record, came to hold that there
is no direct evidence in the shape of narration of eye witnesses
in the case and that the prosecution has relied upon the
following circumstances to prove its case:
(i) Homicidal nature of death of the deceased;
(ii) The accused had prior acquaintance with
the deceased, as there was friendship between
them and the accused had taken a loan of
Rs.10,000/-from the deceased;
(iii) On the morning of the date of occurrence,
the accused had been to the house of the
deceased and called the deceased to go with him
to the house of his aunt for repayment of the loan
and both of them left the house of the deceased
together;
(iv) On the same day, at about 12.30 p.m., the
accused and the deceased were last seen going
together towards Kanarpur hill;
JCRLA No.20 of 2013 Page 13 of 54
(v) On the same day, at about 2.30 p.m., the
accused was seen alone returning back having
covered his face by a Turkish towel with blood-
stained clothes and having an air bag;
(vi) The accused made extrajudicial confession
before P.Ws.7, 10, 11 and 14 to have murdered
the deceased and burnt his dead body; and he
was detained by P.Ws.7, 10, 11 and 14 and police
was informed over telephone and after arrival of
police, FIR was lodged;
(vii) After arrest, the accused led the police and
witnesses to the place of concealment and gave
recovery of the weapon of offence;
(viii) The Medical Officer opined that the injury
found on the deceased could be possible by such
weapon of offence;
(ix) The Voter Identity card, Nokia mobile
phone and money purse containing cash of
Rs.220/- belonging to the deceased were seized
from the possession of the accused;
JCRLA No.20 of 2013 Page 14 of 54
(x) Incised injuries were found in the gap
between right thumb and index finger and on left
index finger of the accused;
(xi) The doctor opined that these types of
injuries could be possible when someone attacks
another by means of a sharp cutting weapon like
knife and the other struggles for life and tries to
escape from his clutches.
The learned trial Court considering the evidence of
the doctor (P.W.13) came to hold that the death of the deceased
was homicidal in nature and thus, the prosecution has
successfully proved the first ingredient required to be proved in
the case of murder.
It was further held that the evidence of P.Ws.12 and
16 do not suffer from any interestedness and from their mouth,
the prosecution successfully brought out that the appellant had
prior acquaintance with the deceased, being friends and the that
the appellant had taken a loan of Rs.10,000/- from the
deceased.
It was further held that the appellant had taken a
loan of Rs.10,000/- from the deceased earlier and on the date of
occurrence morning, the appellant had been to the house of the
JCRLA No.20 of 2013 Page 15 of 54
deceased and called him to accompany him for repayment of the
loan and both of them left the house of the deceased together.
Considering the evidence of P.Ws.7, 10, 11 and 14, it
was held that there can be no trace of doubt that the deceased
was not last seen in the company of the appellant.
It was further held that presumably, the appellant
had no other way to return back from the hillock after
committing murder than the picnic spot and therefore, the
prosecution is said to have proved that on the date of occurrence
at about 2.30 p.m., the appellant was seen alone returning back
having covered his face by a turkish towel with blood-stained
clothes and having an air bag.
It was further held that it is clear that at the time of
extrajudicial confession made by the appellant, no police
personnel were present there. Moreover, except mere threat of
calling the police, no other grave threat or assault was made by
the witnesses to the appellant. There was no evidence or reason
to show that P.Ws.7, 10, 11 and 14 had any prior enmity to
settle score with the appellant to falsely implicate him in a case
like murder and only to know the real truth, they threatened the
appellant to call the police and therefore, the extrajudicial
confession cannot be said to be a tainted one.
JCRLA No.20 of 2013 Page 16 of 54
It was further held that the confession made by the
appellant before P.Ws.7, 10, 11 & 14 was not a tainted one and
it is an incriminating circumstance against the appellant.
Relating to after arrest, the appellant leading the
police and the witnesses to the place of concealment and giving
recovery of the weapon of offence, the learned trial Court held
that it is accepted that the prosecution has proved it conclusively
that the discovery was made on the fact, disclosed by the
appellant.
It was further held that it can safely be accepted that
the injury, found on the neck of the deceased was caused by the
knife (M.O.II), which was sufficient in ordinary course of nature
to cause death of the deceased.
Relating to the seizure of Voter Identity Card, Nokia
mobile phone and money purse containing cash of Rs.220/-
belonging to the deceased from the possession of the appellant,
the learned trial Court held that it can safely be inferred that
those articles were with the deceased, when he accompanied the
appellant on the date of occurrence.
Relating to the injuries noticed on the appellant, the
doctor (P.W.18) opined that these types of injuries can be
possible when someone attacks another by means of a sharp
JCRLA No.20 of 2013 Page 17 of 54
cutting weapon like knife and the other struggles for life and
tries to escape from his clutches and thus, the learned trial Court
held that it can safely be inferred that the appellant might have
sustained those injuries during the alleged incident.
Basing on the circumstantial evidence against the
appellant, the learned trial Court held that the circumstances
make out a complete chain of evidence not to leave any
reasonable ground for the conclusion consistent with the
innocence of the appellant and show that in all human
probability, the act must have been done by the appellant. It
was held that the appellant called the deceased from his house
and took him with him to repay back the loan amount of
Rs.10,000/-, which he had borrowed from the deceased and
committed his murder at Kanarpur hillock and tried to dispose of
the dead body by burning it in order to cause disappearance of
evidence to screen himself from legal punishment. Accordingly,
the learned trial Court found the appellant guilty under sections
302/201 of the I.P.C.
Contentions of the Parties:
7. Mr. Gokulananda Padhi, learned counsel appearing
for the appellant emphatically contended that admittedly there is
no ocular evidence to support the case of the prosecution with
JCRLA No.20 of 2013 Page 18 of 54
regard to the homicidal death of the deceased. He argued that
even though P.W.12 and P.W.16, the sister and father of the
deceased respectively have deposed that a sum of Rs.10,000/-
was given to the appellant by the deceased, but there is no
written document in respect of such loan transaction. There is no
material evidence to prove any dissention between the deceased
and the appellant and that apart, the issue of non-payment of
such borrowed money is hardly material so as to compel the
appellant to take such extreme steps of committing the crime of
such grave nature and thus, the motive part put forth by the
prosecution is very weak in nature. According to the learned
counsel, both P.W.12 and P.W.16 being related to the deceased
are interested witnesses and the learned trial Court should not
have placed reliance upon their evidence either relating to the
motive on the part of the appellant behind the commission of
crime or last seen of the appellant in the company of the
deceased.
With regard to the last seen theory as deposed to by
P.W.7, P.W.10, P.W.11 and P.W.14, it is argued that all these
four witnesses have stated in their cross-examination that they
had no prior acquaintance either with the appellant or the
deceased and P.W.7 in his statement has stated they were
JCRLA No.20 of 2013 Page 19 of 54
enjoying the picnic and they had no special attention on the
passersby and therefore, it is difficult to accept that they could
have marked the appellant passing on the road with the
deceased while they were having engaged in the picnic activities.
With regard to the extrajudicial confession made by
the appellant before P.W.7, P.W.10, P.W.11 and P.W.14, learned
counsel urged that such confession should not be accepted as
the same was out of threat given by the witnesses to the
appellant and it was not voluntary.
Learned counsel further argued that the evidence of
P.W.17 with regard to recording of the statement of the
appellant under section 27 of the Evidence Act cannot be
believed as such statement was made out of fear and threat. The
doctor (P.W.13) did not find any blood stain on knife (M.O.II)
which was produced before him by the I.O. for his opinion and
therefore, the recovery becomes immaterial and can not be used
as a circumstance against the appellant.
Learned counsel further submitted that 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 A.I.R. 1984
JCRLA No.20 of 2013 Page 20 of 54
S.C. 1622, it is a fit case where benefit of doubt should be
extended in favour of the appellant. He has also relied upon the
decisions of the Hon‟ble Supreme Court in the cases of Kishore
Chand -Vrs.- State of Himachal Pradesh reported in
(1991) 1 Supreme Court Cases 286 and Gambhir -Vrs.-
State of Maharashtra reported in (1982) 2 Supreme Court
Cases 351.
8. Mr. Aurovinda Mohanty, learned Addl. Standing
Counsel on the other hand supported the impugned judgment
and argued that not only the prosecution has proved motive
part, but also how the appellant called and took the deceased
from his house with him on the pretext of repayment of loan
amount. The last seen of the appellant in the company of the
deceased, extrajudicial confession of the appellant, recovery of
blood stained wearing apparels of the appellant, pointing out the
half burnt dead body of the deceased by the appellant and
leading to discovery of weapon of offence coupled with post
mortem report and chemical examination report findings and
recovery of the articles of the deceased from the possession of
the appellant make the chain of circumstances complete. He
argued that the evidence of the witnesses, namely, P.W.7,
P.W.8, P.W.10, P.W.11 and P.W.14 so also the evidence of the
JCRLA No.20 of 2013 Page 21 of 54
doctor (P.W.13) coupled with the evidence of the I.O. (P.W.17)
are clear and unambiguous and there is no missing link and
therefore, the learned trial Court was justified in convicting the
appellant and thus, the appeal should be dismissed.
Principles for appreciation of case based on circumstantial
evidence:
9. Admittedly, there is no direct evidence relating to the
commission of murder of the deceased and the case is based on
circumstantial evidence.
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;
JCRLA No.20 of 2013 Page 22 of 54
(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.
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 eye
witness, if various circumstances relied on by the prosecution
relating to the guilt are fully established beyond 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 (supra), 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
JCRLA No.20 of 2013 Page 23 of 54
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
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 (supra), 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
JCRLA No.20 of 2013 Page 24 of 54
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
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.
JCRLA No.20 of 2013 Page 25 of 54
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:
"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."
JCRLA No.20 of 2013 Page 26 of 54
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
to come to the irresistible conclusion that the appellant alone is
the perpetrator of the crime in question.
Whether the deceased met with a homicidal death?:
10. The inquest report (Ext.2), which has been prepared
by the I.O. (P.W.17) indicates the nature of injuries sustained by
the deceased. There was injury on throat and burn injuries on
the body. P.W.13 conducted post-mortem examination over the
dead body of the deceased on 24.03.2011 on police requisition
and noticed the following injuries:
(i) The body was emaciated, rigor mortis present
on all the four limbs, whole body burnt, there was
pugilistic attitude, left hand was clinched, eyes
closed bilaterally, mouth half opened, tongue
bitten and protruded, irregular bruise was present
on left hand knee joint, upper cervical vertex
damaged, both the pleura, lungs were congested,
but pale, large vessels were damaged severely,
JCRLA No.20 of 2013 Page 27 of 54
mainly, carotid, jugular vein was injured due to
sharp cut;
(ii) There was a sharp cut wound of 10 cm. X 6
cm. X 6 cm. on left neck and great vessels like
left carotid and left jugular were damaged, there
was pugilistic attitude of the body and 75% burnt
more found on the back;
(iii) There was peeling of spleen and the sharp
cut was present below the thyroid cartilage.
P.W.13 further stated that the cause of death was
due to cut throat injury, caused by sharp cutting knife leading to
severe haemorrhage and shock and the injury was ante mortem
in nature and death was within 24 hours prior to his examination
and the injury was sufficient to cause death in ordinary course of
nature and death was homicidal in nature. The post mortem
report was marked as Ext.9. It further appears from the
evidence of P.W.13 that on 22.04.2011, the I.O. (P.W.17) made
a query regarding possibility of the injury found on the deceased
by knife (M.O.II), which was produced before him and on
examination, P.W.13 opined that the injury found on the neck of
the deceased might have been caused by the knife and the
injury was sufficient in ordinary course of nature to cause death
JCRLA No.20 of 2013 Page 28 of 54
of the deceased and the query report has been proved as Ext.10.
Nothing has been elicited by the defence in the cross-
examination to disbelieve the evidence of the doctor (P.W.13).
After going through the evidence on record, more
particularly, the inquest report (Ext.2), the evidence of the
doctor (P.W.13) and the post mortem report findings vide Ext.9,
we are of the humble view that the learned trial Court has rightly
came to the conclusion that the deceased met with homicidal
death. The homicidal death aspect of the deceased has also not
been challenged by Mr. Padhi, learned counsel for the appellant.
Motive:
11. According to the prosecution case, the deceased had
given a hand loan of Rs.10,000/- (rupees ten thousand) to the
appellant and when the deceased insisted the appellant to make
repayment of such loan amount, on the date of occurrence, the
appellant came to the house of the deceased and called him to
go to his aunt‟s house for making repayment of the loan amount.
On this circumstance, P.W.12, the sister and P.W.16,
the father of the deceased respectively are the witnesses.
P.W.16 has stated that the appellant had taken
Rs.10,000/- as loan from the deceased and when the deceased
insisted for repayment of the loan, on the date of occurrence the
JCRLA No.20 of 2013 Page 29 of 54
appellant called the deceased from the house to repay the
money by arranging from his aunt and took the deceased with
him. In the cross-examination, P.W.16 has stated that he had
personal knowledge about the loan which was given by the
deceased to the appellant. Nothing has been brought out in the
cross-examination to disbelieve this part of evidence of P.W.16.
Similarly, P.W.12, the sister of the deceased has
stated that the appellant had taken a loan of Rs.10,000/- from
the deceased for marriage of his sister and the said fact was
known to her and her parents as well and also to the parents of
the appellant. She further stated that on 23.03.2011 at about
9.00 a.m., while she was in her house with her deceased
brother, the appellant came to their house and called the
deceased to accompany him to village Khuntajhari to the house
of the aunt for repayment of loan of Rs.10,000/- which the
appellant had taken earlier from the deceased and accordingly,
the deceased went with the appellant. Nothing has been brought
out in the cross-examination of P.W.12 to disbelieve this part of
evidence.
Therefore, from the evidence of P.W.12 & P.W.16, it
is crystal clear that in connection with the marriage of his sister,
the appellant had taken loan of Rs.10,000/- from the deceased
JCRLA No.20 of 2013 Page 30 of 54
which he did not pay even though the deceased insisted for such
repayment. On the date of occurrence, the appellant came to the
house of the deceased and asked the deceased to accompany
him to his aunt‟s house situated in village Khuntajhari for making
repayment of the loan amount and accordingly, both of them left
the house.
Mr. Padhi, learned counsel argued that there is no
written document in respect of such loan transaction and
therefore, the evidence of P.W.12 & P.W.16 should not be
accepted on this issue. The I.O. (P.W. 17) has stated that during
investigation, he did not find any documentary evidence
regarding lending of money by the deceased to the appellant.
We are not inclined to accept such a submission
inasmuch as many hand loans are given on good faith without
keeping any document and it should not be forgotten that it was
a rural area and the loan was given for a purpose and the
transaction was known not only to the family members of the
deceased but also to the appellant.
The next submission of the learned counsel for the
appellant that the issue of non-payment of the borrowed money
of Rs.10,000/- could not have compelled the appellant to take
the extreme step of committing murder of the deceased, but
JCRLA No.20 of 2013 Page 31 of 54
such submission does not hold good as it depends upon person‟s
nature as to how he would react and what he would do, if he is
repeatedly asked for refund of the loan amount which he had
taken and not able to make repayment.
In the case in hand, the prosecution has put forth the
non-refund of the loan amount by the appellant to the deceased
from whom he had borrowed as a motive on his part to commit
murder of the deceased. So far as the relevancy of motive in a
case based on circumstantial evidence, the weight of authorities
is on principles that 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).
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 relating to
circumstantial evidence, motive does assume great importance,
JCRLA No.20 of 2013 Page 32 of 54
but to say that the absence of motive would dislodge the entire
prosecution story is given this one factor an importance which is
not its due. If the evidence is clear and unambiguous and the
circumstances prove the guilt of the accused, the same is not
weakened even if the motive is not a very strong one.
Thus, the contention of the learned counsel for the
appellant that the non-refund of the loan amount of Rs.10,000/-
by the appellant to the deceased cannot be said to be a strong
motive, becomes immaterial.
Appellant calling the deceased from his house and taking
him for repayment of loan dues:
12. This circumstance as already stated has been
deposed to by P.W.12 & P.W.16.
The contention of Mr. Padhi, learned counsel for the
appellant that both P.W.12 & P.W.16 being related to the
deceased are interested witnesses and therefore, no importance
should be attached to their evidence.
The settled position of law is that merely because the
witnesses are related to the deceased, their evidence cannot be
thrown out. If their evidence is found to be consistent and
trustworthy, the fact of being a relative cannot by itself discredit
JCRLA No.20 of 2013 Page 33 of 54
their evidence. Relationship is not a factor to affect the credibility
of a witness rather the Court has to be more careful while
assessing the evidence of such witnesses and scrutinize their
evidence meticulously. It is difficult on the part of the
prosecution to produce independent witnesses always to prove a
particular fact as it may be the relatives of the victim or
deceased who might be only aware about the same like torture
on a woman in connection with demand of dowry.
The evidence of P.W.12 & P.W.16 that on the pretext
of making repayment of loan amount of Rs.10,000/-, the
appellant called the deceased to go to his aunt‟s house on the
date of occurrence, in our humble view does not suffer from any
infirmity and after scrutinizing their evidence carefully, we are
satisfied that their evidence have a ring of truth and thus the
same can be relied upon.
Appellant and the deceased were last seen together:
13. The prosecution has relied upon the evidence of
P.Ws.7, 10, 11 & 14 to prove the last seen of the deceased in the
company of the appellant.
P.W.14 Dandapani Behera, the informant has stated
that on 23.03.2011, while he along with his friends, namely,
Susanta Prusty, Nisakar Pradhan (P.W.7), Jitu Sahoo (P.W.10),
JCRLA No.20 of 2013 Page 34 of 54
Babuli Sahoo (P.W.11) and others were enjoying picnic at
Suakhainala during day time at about 12.30 noon, they found
the appellant and the deceased were proceeding towards
Kanarpur hillock by walking and at about 2.00 to 2.30 p.m., the
appellant returned alone.
In the cross-examination, P.W.14 has stated that
there was only one road which was leading from village Kanarpur
to hillock. He further stated that the distance between the place
where they were enjoying the picnic and the place where they
saw the appellant and the deceased going together would be
around half a kilometer. He specifically stated that they were five
who were enjoying the picnic on that relevant day and that he
had no prior acquaintance either with the appellant or with the
deceased.
The evidence of P.W.14 is getting corroboration from
the evidence of P.W.7, P.W.10 & P.W.11. All of them have stated
that they had seen the appellant and the deceased going
towards Kanarpur hillock at about 12.00 noon while they were
enjoying picnic. It is of course correct that in the cross-
examination, P.W.7 & P.W.10 have stated that they had got no
prior acquaintance with the appellant and the deceased, but the
same is not very much material to disbelieve the evidence of all
JCRLA No.20 of 2013 Page 35 of 54
these witnesses particularly when they were not at such a long
distance from where they could not have marked the appellant
and the deceased proceeding on the road by walking while they
were enjoying picnic. There is no evidence of any
obstacle/blockage from the place of picnic to the passage on
which the appellant and the deceased were proceeding. After one
and half hours, they found the appellant returning alone wearing
blood stained clothes and also making extrajudicial confession
before them and leading them to show the dead body of the
deceased, which was lying in the hillock with throat cut and
having burn injuries. Therefore, the contention of Mr. Padhi,
learned counsel for the appellant that why these four witnesses
would give any attention to the persons who were passing on the
road while they were engaged in picnic activities, is not
acceptable.
Thus, not only from the evidence of P.W.12 & 16, the
sister and father of the deceased respectively, but also through
the evidence of P.Ws.7, 10, 11 & 14, the prosecution has
successfully established the last seen of the deceased in the
company of the appellant. If the time gap between accused
being last seen together with the deceased and discovery of
JCRLA No.20 of 2013 Page 36 of 54
dead body is not long, evidence of last seen together becomes
very relevant.
Appellant returning alone after sometime covering his
face and having blood stained clothes and an air bag:
14. P.Ws.7, 10, 11 & 14 have also deposed on this
aspect.
P.W.14, the informant has stated that they found the
appellant and the deceased proceeding towards Kanarpur hillock
by walking at about 12.30 noon and at about 2.00 to 2.30 p.m.,
the appellant was returning alone through the picnic spot
covering his head with a turkish towel holding an air bag in his
hand and there was blood stains in his wearing apparels. P.W.7,
P.W.10 and P.W.11 have also stated on this aspect corroborating
the evidence of P.W.14. Nothing has been brought out in the
cross-examination of any of these four witnesses to disbelieve
this part of evidence.
Therefore, when the appellant was in the company of
the deceased at about 12.30 noon going on the road towards
Kanarpur hillock by walking and after about one and half hour,
he was found returning alone covering his head with turkish
towel, wearing blood stained clothes and holding an air bag, his
movement became very suspicious to P.Ws.7, 10, 11 & 14 who
JCRLA No.20 of 2013 Page 37 of 54
were enjoying the picnic nearby and they detained the appellant.
Specific questions on this aspect have been put to the appellant
in the accused statement but he has failed to explain as to when
and how he departed from the company of the deceased and in
what manner but only stated that the witnesses are deposing
falsehood.
It may be noted that once the theory of last seen
together is established by the prosecution and there is short time
gap between the last seen as well as the discovery of the dead
body of the deceased meeting with a homicidal death with cut
wound on the throat and burn injuries on the body, the appellant
was expected to offer some explanation as to when and under
what circumstances he had parted the company of the deceased.
It is true that burden to prove the guilt of the accused is always
on the prosecution, however in view of section 106 of the
Evidence Act, when any fact is within the knowledge of the
person, the burden of proving the fact is upon him. If the
accused does not throw any light upon the facts which are
proved to be within his special knowledge, in view of section 106
of the Evidence Act, such failure on the part of the accused may
be used against him as it may provide an additional link in the
chain of circumstances. In the case based on circumstantial
JCRLA No.20 of 2013 Page 38 of 54
evidence, furnishing or non-furnishing of the explanation by the
accused would be a very a crucial fact, when the theory of "last
seen together" as propounded by the prosecution was proved
against him.
In the case of Rajendra -Vrs- State (NCT of
Delhi) reported in (2019) 10 Supreme Court Cases 623, it
was observed that if a person is last seen with the deceased, he
must offer an explanation as to how and when he parted the
company with the deceased in view of section 106 of the
Evidence Act. He 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.
Extrajudicial confession:
15. The prosecution case is that the appellant made
extrajudicial confession before P.Ws.7, 10, 11 & 14 to have
committed murder of the deceased.
P.W.14, the informant has stated that when seeing
the appellant covering his head with a turkish towel holding an
air bag in his hand and having blood stains on his wearing
JCRLA No.20 of 2013 Page 39 of 54
apparels, they doubted some foul play, on being asked about the
reason of blood on his wearing apparels, the appellant remained
silent and when they threatened to call the police, the appellant
disclosed before them not only his own name but the name of
the person who was accompanying him to be the deceased and
further stated that he had committed murder of the deceased by
cutting his throat with knife on the hillock. Similar evidence has
been given by P.Ws.7, 10 & 11 and nothing has been brought
out to disbelieve their evidence on this aspect.
In the 313 Cr.P.C. statement, the appellant has
denied to have made any such confession before these four
witnesses.
The extrajudicial confession evidence was attacked
by the learned counsel for the appellant on the ground that it
was out of threat given by the witnesses to the appellant and it
was not voluntary.
Section 24 of the Evidence Act states that a
confession made by an accused becomes irrelevant in a criminal
proceeding, if it appears to the Court that (i) in the making of
the confession, any inducement, threat or promise was caused;
(ii) such threat, inducement or promise had reference to the
charge against the accused; (iii) it proceeded from a person in
JCRLA No.20 of 2013 Page 40 of 54
authority and (iv) it was sufficient to give the accused grounds
which would appear to him reasonable for supposing that he
would gain any advantage or avoid any evil of a temporal nature
in reference to the proceeding against him.
It is always a question of fact depending upon the
circumstances of each case whether certain words used have or
have not had certain effects on the mind of the accused. It is no
longer res integra that the confessional statement shall be
voluntary and shall be outcome of free will. Mere existence of
threat, inducement or promise is not enough, but in the opinion
of the Court, such threat, inducement or promise shall be
sufficient to cause a reasonable belief in the mind of the accused
that by confessing, he would get an advantage or avoid any evil
of a temporal nature in reference to the proceeding against him.
It is the duty of the Court to place itself in the position of the
accused and to form an opinion as to the state of mind in the
circumstances of the case.
While explaining the dimensions of the principles
governing the admissibility and evidentiary value of an
extrajudicial confession, the Hon‟ble Supreme Court in the case
of State of Rajasthan -Vrs.- Raja Ram reported in (2003)
8 Supreme Court Cases 180 held that an extrajudicial
JCRLA No.20 of 2013 Page 41 of 54
confession, if voluntary and true and made in a fit state of mind,
can be relied upon by the Court. The confession will have to be
proved like any other fact. The value of evidence as to
confession, like any other evidence, depends upon the veracity
of the witness to whom it has been made. The Court further
expressed the view that such a confession can be relied upon
and conviction can be founded thereon if the evidence about the
confession comes from the mouth of witnesses who appear to be
unbiased, not even remotely inimical to the accused and in
respect of whom nothing is brought out which may tend to
indicate that he may have a motive of attributing an untruthful
statement to the accused.
In the case in hand, it appears from the evidence of
the four witnesses who are no way having any hostility with the
appellant that when they saw the suspicious movement of the
appellant, who had covered his head with turkish towel and was
having blood stains on his wearing apparels and holding an air
bag, they asked about the reason of blood on his wearing
apparels, but the appellant remained silent and when they
threatened to call the police, the appellant made the extrajudicial
confession. These four witnesses, in our humble view, cannot be
said to be the persons in authority for the purpose of section 24
JCRLA No.20 of 2013 Page 42 of 54
of the Evidence Act. There is no evidence that they either
induced, made any promise to the appellant for which he made
the confession. When the appellant remained silent to their
query regarding blood on his wearing apparels, the witnesses
threatened to call the police whereafter the appellant confessed
his guilt. There is no evidence of any grave threat which created
panic in mind of the appellant to make such confession. These
four witnesses were not even aware that any crime had been
committed by the appellant and that too commission of murder
of the deceased. They had not even questioned about the
whereabouts of the deceased who had accompanied him a few
hours before. The appellant could have given any explanation
regarding the presence of blood on his wearing apparels and
could have said that since he received some injuries on the
hand, it was his own blood which was there on his wearing
apparels. On the other hand, he volunteered to confess his guilt
and not only disclosed the identity of the deceased but also how
he committed murder of the deceased and at what place. The
extrajudicial confession part also finds place in the first
information report and getting corroboration from medical
evidence, thus, it cannot be said that it is a creature of an
afterthought or it is a tainted evidence and therefore, we are of
JCRLA No.20 of 2013 Page 43 of 54
the view that the learned trial Court has rightly placed reliance
on the evidence of P.Ws.7, 10, 11 & 14 relating to the
extrajudicial confession.
Appellant leading the police to the spot where dead body
was lying and giving recovery to the weapon of offence:
16. The evidence of P.W.8 and P.W.17, the I.O. are very
relevant on this aspect.
P.W.8 has stated that on 23.03.2011 while the
appellant was in police custody, he not only confessed his guilt
but also expressed his intention to lead to the place of
concealment of knife. He further stated that the appellant‟s
statement was recorded by the I.O. vide Ext.6/1 and then the
appellant led to Kanarpur hilltop to a neem tree and gave
recovery of a sharp knife (without handle) from the ashes which
was seized by the police as per seizure list Ext.4/1 in which he
himself put his signature (Ext.4/2) so also the appellant put his
signature (Ext.4/3). He identified the knife which is marked as
M.O.II. In the cross-examination, he has stated that the seized
knife was 5 inch in length and he and P.W.6 Deepak Kar put
their signatures on the seizure list but the other persons did not
sign the seizure list.
JCRLA No.20 of 2013 Page 44 of 54
P.W.6 has not supported the prosecution case
relating to the seizure of knife at the instance of the appellant
and he was declared hostile.
The I.O. (P.W.17) has specifically stated that after he
arrested the appellant, while he was in custody, he stated to
have concealed the weapon of offence and volunteered to give
recovery of the same and accordingly, he recorded his statement
under section 27 of the Evidence Act and thereafter, the
appellant led him as well as the witnesses to the place of
concealment of the weapon of offence i.e. the top of Kanarpur
hillock, where the dead body of the deceased was lying in a half
burnt condition and the appellant brought out a knife from the
ashes which was seized as per seizure list Ext.4/1. The I.O.
proved the statement of the appellant recorded under section 27
of the Evidence Act vide Ext.6/1 and also proved M.O.II, the
blood stained knife without handle which was recovered by the
appellant during leading to discovery.
No challenge has been made to the evidence of the
I.O. (P.W.17) by the learned defence counsel in the cross-
examination that neither the appellant made any such statement
leading to discovery nor he led the police to the spot and gave
recovery of any knife from the ashes.
JCRLA No.20 of 2013 Page 45 of 54
The witnesses P.Ws.7, 10, 11 and 14 have also
stated that the appellant took them to the hillock and showed
the dead body lying under a neem tree in a burnt condition
having injury on his throat. P.W.4 received a phone call from his
younger brother Jitu Sahu (P.W.10), who told him about the
occurrence and accordingly he (P.W.4) informed the police.
P.W.4 also stated to have gone to the spot with his brother
(P.W.10) and his friends and police officers so also with the
appellant and found the dead body of the deceased was lying
with cut injury on the throat and his body was half burnt but his
face was recognisable.
The grounds on which the evidence has been
challenged by the learned counsel for the appellant is that the
statement was made out of threat and was not a volunteered
one. There is nothing in the evidence of I.O. to come to such a
finding. Of course, the doctor (P.W.13) has stated that he did not
notice any blood on the knife (M.O.II) which was produced
before him by the I.O. for his opinion, but it appears that the
knife was sent for chemical examination and the C.E. report has
been marked as Ext.22 which indicates that human blood was
found on the knife.
JCRLA No.20 of 2013 Page 46 of 54
The object of making a provision in section 27 of the
Evidence act was to permit certain portion of the statement
made by an accused to a police officer admissible in evidence
whether or not such statement is confessional or non-
confessional. That bar against admissibility would stand lifted if
the statement distinctly relates to a discovery of fact. Recovery
or even production of object by itself need not necessarily result
in discovery of a fact. The fact discovered within the meaning of
the section is not equivalent to the object recovered but the fact
embraces the place from which the object is recovered & the
knowledge of the accused as to it. The pre-condition to bring
section 27 of the Evidence Act into operation is that the
discovery of a fact must be deposed to and thereupon so much
of the information as relates distinctly to the fact thereby
discovered may be proved.
In the case of Anter Singh -Vrs.- State of
Rajasthan reported in (2004) 10 Supreme Court Cases
657, it is held as follows:-
"14.....It will be seen that the first condition
necessary for bringing this section (section 27)
into operation is the discovery of a fact, albeit a
relevant fact, in consequence of the information
received from a person accused of an offence.
JCRLA No.20 of 2013 Page 47 of 54
The second is that the discovery of such fact must
be deposed to. The third is that at the time of the
receipt of the information, the accused must be in
police custody. The last but the most important
condition is that only "so much of the
information" as relates distinctly to the fact
thereby discovered is admissible. The rest of the
information has to be excluded. The word
"distinctly" means "directly", "indubitably",
"strictly", "unmistakably". The word has been
advisedly used to limit and define the scope of
the provable information. The phrase "distinctly"
relates "to the fact thereby discovered" and is the
linchpin of the provision. This phrase refers to
that part of the information supplied by the
accused which is the direct and immediate cause
of the discovery. The reason behind this partial
lifting of the ban against confessions and
statements made to the police, is that if a fact is
actually discovered in consequence of information
given by the accused, it affords some guarantee
of truth of that part, and that part only, of the
information which was the clear, immediate and
proximate cause of the discovery."
[Emphasis supplied]
In view of the available evidence on record, we are of
the view that the learned trial Court is quite justified in holding
JCRLA No.20 of 2013 Page 48 of 54
that this circumstance has been proved by cogent evidence and
also placing reliance on it.
Recovery of voter identity card, mobile phone, money
purse containing cash belonging to deceased:
17. The evidence of P.W.16 and P.W.17 on this score is
very relevant.
P.W. 17, the I.O., has stated that when he visited the
spot, the informant (P.W.14) and other witnesses handed over
the appellant to him and he took the appellant to his custody and
thereafter seized one black colour rexine bag containing one
Nokia mobile, a money purse with cash Rs. 220/-, voter identity
card of the deceased, one pant, one turkish towel and one shawl
from the possession of the appellant in the presence of the
witnesses and prepared the seizure list Ext.3/1.
In the cross-examination, P.W.17 has stated that the
black colour rexine bag which was seized on production of the
appellant was not available in the Court.
P.W.8 has also stated about the seizure of such
articles from the possession of appellant under seizure list Ext.
3/1 and he is also a signatory to such seizure list and he has
JCRLA No.20 of 2013 Page 49 of 54
proved the signature of the appellant vide Ext.3/3 on such
seizure list.
P.W.16, the father of the deceased, stated about
receiving the Nokia mobile set which was used by the deceased,
the money purse of the deceased containing Rs.220/- and the
voter identity card of the deceased from police by executing
zimanama (Ext. 14).
The appellant has failed to explain as to how the
Nokia mobile phone of the deceased, the money purse of the
deceased and the voter identity card of the deceased came to his
possession which was seized by the police. Therefore, the
learned trial Court is justified in using this circumstance against
the appellant and inferring that those articles were with the
deceased when he accompanied the appellant on the date of the
occurrence. After committing the crime, the appellant seems to
be removing Nokia mobile phone, money purse and the voter
identity card of the deceased so that even if the dead body was
found in a burnt condition later on, the identity of the dead body
could not be established in absence of those articles.
Injuries noticed on the person of the appellant:
18. P.W.18, the doctor who examined the appellant on
police requisition on 24.03.2011 at D.H.H., Dhenkanal noticed
JCRLA No.20 of 2013 Page 50 of 54
some incised injuries on the right thumb and index fingers so
also left index fingers apart from other injuries and opined that
these incised injuries on the hands were probably caused by
sharp cutting weapons. He proved his report Ext.17/2 and stated
that such injuries were possible when someone attacked another
by means of sharp cutting weapons like knife while the other
struggled for life and tried to escape from his clutches. The knife
was also seized at the instance of the appellant from the ashes
by the I.O. Specific questions have been put to the appellant in
the accused statement regarding his injuries in question no.27
and the appellant has also admitted about such injuries, but he
has failed to explain as to how he sustained those injuries.
We are of the view that the learned trial court has
rightly used this evidence against the appellant and came to hold
that the possibility of the deceased struggling to save himself
from the crutches of the appellant during the attack and the
knife hitting the hands of the appellant could not be ruled out.
Sum up & Conclusion:
19. In view of the foregoing discussions, we are of the
view that the prosecution has not only proved that the deceased
met with a homicidal death, but also established the
circumstances like hand loan of Rs.10,000/- (rupees ten
JCRLA No.20 of 2013 Page 51 of 54
thousand) taken by the appellant from the deceased for his
sister‟s marriage and not refunding the same to the deceased in
spite of repeated demand; the appellant calling the deceased
from his house on the date of the occurrence and taking him on
the pretext of repayment of loan amount; the last seen
evidence; appellant returning alone after a short gap when he
was last seen with the deceased and his wearing apparels were
stained with human blood and he was covering his face with
turkish towel; Nokia mobile set, money purse and the voter
identity card of the deceased were seized from the possession of
the appellant; the appellant making extrajudicial confession
before the witnesses who detained him while he was returning
alone in a suspicious manner; appellant showing the dead body
to the witnesses lying on the hillock in a burnt condition having
cut injury on throat; leading to discovery of the weapon of the
offence by the appellant and the injuries noticed on his person of
the appellant. The chemical examination report marked as
Ext.22 indicate that the knife seized at the instance of the
appellant from the ashes was stained with human blood so also
his full pant and shirt were also stained with human blood. These
circumstances are very clinching in nature and in our humble
view, these circumstances taken together formed a complete
JCRLA No.20 of 2013 Page 52 of 54
chain and there is no escape from the conclusion that it was the
appellant alone and none else who was the author of the murder
of the deceased.
From the circumstances established, it is proved
beyond all reasonable doubt that on the date of occurrence, the
appellant came to the house of the deceased, took the deceased
with him on the pretext of repaying back the loan amount of
Rs.10,000/- which he had borrowed from the deceased and
committed his murder at Kanarpur Hillock and tried to dispose
off the dead body by burning it in order to cause disappearance
of evidence and to screen himself from the legal punishment.
Therefore, the learned trial Court is quite justified in
coming to the conclusion that the prosecution has successfully
established the charges under sections 302/201 of I.P.C. against
the appellant beyond all reasonable doubt.
In the result, the JCLRA being devoid of merits
stands dismissed.
Before parting with the case, we would like to put on
record our appreciation to Mr. Gokulananda Padhi, learned
counsel for the appellant for rendering his valuable help and
assistance towards arriving at the decision above mentioned.
This Court also appreciates the valuable help and assistance
JCRLA No.20 of 2013 Page 53 of 54
provided by Mr. Aurobinda Mohanty, learned Additional Standing
Counsel.
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 September 2025/RKMishra
Signed by: RABINDRA KUMAR MISHRA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 09-Sep-2025 11:15:23
