[Cites 5, Cited by 0]

Orissa High Court

Kisun @ Sunaram Patra vs State Of Odisha on 19 February, 2026

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRA No.32 of 2002

  (From the judgment and order dated 18.12.2001 passed
  by learned Addl. Sessions Judge, Rairangpur in S.T.
  Case No.18/105 of 2001)


         Kisun @ Sunaram Patra                   ...        Appellant


                                  -versus-

         State of Odisha                         ...        Respondent



   Advocates appeared in the case through hybrid mode:


     For Appellant                    : Ms. Diptimayee Dhal,
                                                   Advocate

                               -versus-

    For Respondent
                                            : Mr. Debaraj Mohanty,
                                               [Additional Govt. Advocate]
     ---------------------------------------------------------------------------

                 CORAM:
THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA

                           JUDGMENT

19.02.2026

Sashikanta Mishra,J. The appellant faced trial with two other persons

in S.T. Case No.18/105 of 2001 in the Court of learned

Additional Sessions Judge, Rairangpur for committing murder of

one Sadhu Das in village Badasia under Bahalda Police Station

of Mayurbhanj district. By judgment passed on 18.12.2001, the

trial Court, while acquitting the other two persons, convicted the

appellant for the offence under Section 302 IPC and sentenced

him to undergo imprisonment for life.

2. Being aggrieved, the appellant has preferred the

present appeal.

3. The prosecution case, briefly stated, runs as follows:-

On 03.01.2001, in village Badasia, a dead body was found

floating in the village tank. One, Bishnu Halda informed the

Grama Rakhi of the above. Hearing this, the Grama Rakhi along

with other persons of the village went to the tank and found a

cycle parked in the middle of Chatani Sahi road. A plastic sack

containing rice was kept in its carrier along with a pair of

slippers tied to it. A bag containing some vegetables also hung

from the handle. No one came forward to claim the cycle. A

crowd had gathered on the embankment of the tank. Marks of

dragging along with blood were seen near the field of Padmini

Halda along with dried blood at several places. A blood stained

steel glass was also lying nearby. In the eastern portion of the

tank, a pant and a shirt were found floating. In the western side,

in about knee deep water, a corpse was floating. Being advised

by the Sarpanch, the Grama Rakhi, Laxminarayan Patra went to

Jamda Police Station and lodged F.I.R. On such report, Bahalda

P.S. Case No.01 of 2001 was registered under Section 302 of

IPC, followed by investigation. In course of investigation, said

dead body floating in the village tank was identified to be of

Sadhu Das. Further, during the investigation, the complicity of

the appellant and two other persons namely, Nauru Bage and

Marda Bage came to light for which charge-sheet was submitted

against them under Sections 302/34 IPC.

4. The defence plea was of denial and false implication.

5. To prove its case, prosecution examined eleven

witnesses and proved sixteen documents. Prosecution also

proved six material objects. Defence did not adduce any

evidence.

6. After considering the evidence on record, particularly

that of P.Ws. 4, 6 and 11 coupled with the recovery of a blood

stained budia (axe), the trial Court was of the view that Sadhu

Das was brutally murdered by the present appellant. Thus,

while acquitting the other two accused persons, the trial Court

convicted the present appellant and sentenced him as aforesaid.

7. Heard Ms. Diptimayee Dhal, learned counsel for the

Appellant and Mr. Debaraj Mohanty, learned Additional

Government Advocate for the State-Respondent.

8. Ms. Dhal would argue that the trial Court convicted

the accused without any evidence, either direct or

circumstantial. Prosecution could not establish a complete chain

of circumstances inspite of which, the trial Court, basing on the

inadmissible statements of the witnesses recorded by the I.O.

under Section 161 of Cr.P.C., held the accused guilty. Since the

other two accused persons facing trial stood on the same footing

as the appellant and were acquitted of the charge, the appellant

should also have been acquitted.

9. Per contra, Mr. D. Mohanty would argue that the

chain of circumstances against the accused is complete in every

respect, inasmuch as there is clear evidence of prior enmity and

assault by the accused persons on the deceased a few days prior

to the occurrence along with evidence of threat being given by

them to kill him. On the date of occurrence, the accused came to

the house of the deceased and confessed of killing him before his

wife. Mr. Mohanty further argues that the weapon of offence was

also recovered at the instance of the accused.

10. Perusal of the case record reveals that prosecution

relies upon the evidence of P.W. Nos.4, 6 and 11. P.W. 4 is the

sister of the deceased. She stated that at about twelve noon on a

Tuesday, the accused persons assaulted the deceased and on

the next morning of the occurrence, the accused wanted to know

if her brother had returned from the market or not. She has not

stated if she had actually seen the accused persons taking her

brother to the market or of assaulting him. P.W. 6 also stated

that about seven days prior to the occurrence, the deceased and

the accused persons had quarreled and they threatened to kill

him in future. P.W. 6 also does not say if he had seen the

occurrence. P.W. 11 is the wife of the deceased. According to her,

much before the occurrence on a Tuesday, the accused persons

quarreled with her husband. On the next morning of the

occurrence, the accused persons came to her house and

enquired about the whereabouts of her husband, to which she

stated her ignorance and then the accused persons told her that

they had killed her husband and thrown the dead body in the

village tank. The last part of her statement was an improvement

not being stated earlier to the I.O. Be that as it may, we find that

none of the three witnesses (P.Ws. 4, 6 and 11) have stated to

have seen the actual quarrel/assault/threat by the accused

persons to the deceased. The trial Court has laid much

emphasis on the statement of P.W. 11 regarding the prior

assault but prosecution has not come up with any evidence as to

her source of knowledge of such assault. The trial Court further

held that if the appellant had not committed the murder then

why would he come to the house of P.W. 11 on the next day. We

find this surprising as well as untenable for the reason that on

the same fact a question can also be asked as to why should a

person committing the murder visit the house of his victim and

confess before his wife of killing him. This militates against

normal human conduct. The trial Court appears to have been

swayed away by certain wrong statements made by the I.O.,

before the Court being confronted with the Section 161 of

Cr.P.C. statement of P.W. 11. We are not inclined to place any

importance on such discrepancy, if at all.

11. Fact remains that, there is no eye-witness to the

occurrence. The only thing that appears from the evidence is

that of a prior quarrel between the accused persons and the

deceased but then the exact time gap between the date of prior

assault and the occurrence is not very clear because, according

to P.Ws. 4 and 6, the same was seven days but according to P.W.

11, it was 'much before' the occurrence. Further, as already

stated, none of them have specifically claimed to have seen such

quarrel/assault themselves. Even assuming there was a quarrel,

the same automatically does not prove that the accused persons

had killed the deceased.

12. Another important aspect is that according to P.W. 6,

the blood stained budia was recovered from the house of the

present appellant but according to the I.O., the same was seized

from the house of the co-accused Nauru Bage. So, if there was

evidence of the axe being recovered from the house of Nauru

Bage, how could he then be acquitted? We find considerable

force in the submission of Ms. Dhal that on same set of facts

and evidence, the appellant ought to have been treated in the

same manner as the co- accused persons.

Surprisingly, the trial Court held that the blood stained

budia was seized 'either from the house of accused Sunaram

Patra or Nauru Bage'. The trial Court thereafter, proceeds to

hold that accused Sunaram Patra might have kept the blood

stained budia in the house of Nauru Bage with a view to escape

from the liability. This is an absolutely baseless finding,

inasmuch as the prosecution itself does not say so. The trial

Court made out a third case altogether.

13. Thus, we are unable to persuade ourselves to agree

with the contention of learned State counsel that there is a

complete chain of circumstances to link the accused persons

with the occurrence. Law relating to use of circumstantial

evidence is too well settled to be reiterated. Nonetheless, we may

profitably refer to the oft quoted judgment of the Supreme Court

in the Case of Sharad Birdhichand Sarda V. State of

Maharashtra1, wherein the following observations are

noteworthy.

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the

(1984) 4 SCC 116

observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

14. From what has been narrated hereinbefore, this is a

case where prosecution must be held to have failed in its

attempt to bring home the charges by proving a complete chain

of circumstances. There are glaring gaps in the evidence as

pointed out in the preceding paragraphs. It would therefore, be

unsafe to rely upon the prosecution evidence to hold the accused

persons guilty. The trial Court must therefore, be held to have

committed an error in doing so. The impugned judgment

warrants interference for such reason.

15. In the result, the appeal succeeds and is therefore,

allowed. The impugned judgment of conviction and sentence