[Cites 10, Cited by 0]
Orissa High Court
Surendranath Sahoo @ Tuna vs State Of Orissa on 19 March, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 182 of 2001 &
CRA No. 166 of 2001
(From the judgment and order dated 13.08.2001 passed by
learned Addl. Sessions Judge, Jeypore in S.T. Case No.
38/99)
AFR CRA No. 182 of 2001
Surendranath Sahoo @ Tuna .... Appellant
-Versus-
State of Orissa ..... Respondent
CRA No. 166 of 2001
(1) K. Balaji Achary
(2) K. Maleswar Achary .... Appellants
-Versus-
State of Orissa ..... Respondent
Advocate(s) appeared in this case through hybrid mode:
For Appellant(s) : Mr. Azad Keshari Dash, Advocate
[ in CRA No. 182 of 2001]
Mr. Sudipto Panda, Advocate
[ in CRA No. 166 of 2001]
For Respondent(s) : Mr. Debaraj Mohanty,
Addl. Government Advocate
__________________________________________________________
Page 1 of 25
CORAM:
THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA
Date of Hearing : 12.03.2026 :: Date of Judgment: 19.03.2026
SASHIKANTA MISHRA, J.
The appellant, Surendranath Sahu @ Tuna in CRA
No. 182 of 2001 faced trial in ST Case No.38 of 1999 in the
Court of learned Addl. Sessions Judge, Jeypore for
committing the offence under Sections 302/394/201 of
IPC. The appellants, K. Balaji Achary and K. Maleswar
Achary in CRA No. 166 of 2001 faced trial in the
aforementioned case under Sections 414/34 of IPC.
2. By judgment dated 13.08.2001, accused
Surendranath Sahu was convicted under Sections
302/394/201 of IPC and sentenced to undergo
imprisonment for life and to pay a fine of Rs.2000/-, in
default, to undergo RI for another year for the offence
under Section 302 IPC and to undergo RI for 5 years for
the offence under Sections 394/201 IPC. All such
sentences were directed to run concurrently. Accused K.
Maleswar Achary and K. Balaji Achary were convicted
under Section 414 IPC and sentenced to undergo RI for 2
years each, and to pay a fine of Rs.2000/- each, in default,
to undergo RI for six months.
3. Prosecution case, briefly stated, is as follows:
The deceased Rekhamani Panda, aged about 70
years used to reside in her son Arun Kumar Panda's house
at Bikramnagar in Jeypore. On 09.09.1998, she left home
for her elder son's house at Bariniput at about 1 p.m. by
stating that she would take a rickshaw. On 13.09.1998
morning, her said elder son, namely Siba Prasasd Panda
came to take his mother (deceased) to his home. Hearing
this, family members of Arun Kumar Panda were surprised
and started searching for the deceased in friends' and
relatives' houses. Since her whereabouts could not be
traced, a missing report was lodged by Arun Kumar Panda
at Town P.S., Jeypore on 14.09.1998. It was stated that
while leaving home, the deceased was carrying her pension
book, some clothes in a plastic bag, cash of Rs.4,000/- and
had worn several gold ornaments. It was further stated in
the report that having regard to the valuable gold
ornaments worn by her, as also the cash carried by her,
some antisocial or a rickshaw puller may have committed
some untoward act. Two days later, i.e., on 16th September,
1998, a dead body in a gunny bag was found floating in the
main canal of upper Kolab Dam Project near Minaguda
under Borigumma Police Station limits. The staff of
Borigumma P.S. along with sons of the deceased arrived
there. The gunny bag was fished out from the canal and
was opened. The sons of the deceased identified the dead
body as being that of their mother. The OIC of Borigumma
P.S. drew a plain paper FIR alleging that some unknown
person had murdered the victim lady, took away her gold
ornaments and after concealing the dead body in the
gunny bag with proper stitching, had thrown it in the canal
water with the intent of causing disappearance of evidence.
On such FIR, PS Case No.99 of 1998 was registered
under Sections 302/201/394 IPC, followed by
investigation. In course of investigation, the investigating
officer found that on the date of occurrence the deceased
had tried to hire a rickshaw to Bariniput but accused
Surendranath Sahu, who owned a pan shop in that street,
assured to help her board a bus to Bariniput as the same
would be cheaper. He then took the deceased to his house
where he killed her, robbed her valuables and put her dead
body in a gunny bag. Later, with the help of a rickshaw
puller he carried the dead body to the canal, threw the
same in the water as also the plastic bag containing the
personal belongings of the deceased. Later, with the help of
K. Maleswar Achary he melted the gold ornaments and
with the help of K. Balaji Achary he sold the purified gold
to another person. He was thus, arrested and while in
police custody, he led to the discovery of the workshop
where the gold was melted and purified and also the place
of concealment of the plastic basg. Upon completion of
investigation, charge sheet was submitted against the
accused persons.
4. Accused Surendranath Sahoo took the plea of
denial and false implication.
5. The other two accused persons, while admitting
that they had melted gold belonging to K. Balaji Achary
had sold it to K. Dharma Rao for their financial
requirement.
6. To prove its case, prosecution examined 19
witnesses and exhibited 20 documents. Besides,
prosecution also proved 10 material objects. The defence,
on the other hand, examined 7 witnesses and exhibited one
document.
7. The trial Court, noting the absence of direct
evidence of the crime examined the circumstances arising
out of the evidence relied upon by the prosecution to prove
its case against the accused persons. The evidence of the
son of the deceased, P.W.-7, who had lodged the missing
report, was heavily relied upon by the trial Court as
proving the fact that the deceased had left home for
Bariniput at about 1 p.m. on 09.09.1998 wearing several
gold ornaments and carrying cash with her but she never
reached Bariniput. His evidence was found to be
corroborated by the daughters-in-law of the deceased-
P.Ws. 17 and 18. The trial Court further relied upon the
evidence of P.Ws. 8 and 9, who were related to the landlord
of the accused and who had seen the deceased in the
company of the accused on the fateful day. The trial Court
then relied upon the evidence of the rickshaw puller, P.W.-
12. Even though he turned hostile, he admitted to have
implicated the accused in his statement before the I.O.
under Section 161 of Cr.P.C. and before the Magistrate
under Section 164 of Cr.P.C. Further, relying upon the
evidence relating to seizure of personal belongings of the
deceased and the evidence of the witnesses to the
disclosure statement, the trial Court held the same as an
important circumstance pointing towards guilt of the
accused. Since the evidence, according to the trial Court,
revealed that the other two accused persons were involved
in melting and purchasing the gold ornaments of the
deceased at the instance of the accused, they were also
held guilty. Taking note of the autopsy surgeon's opinion, it
was held that the death was homicidal in nature. Since the
gold ornaments of the deceased were found to have been
taken by the accused, Surendranath, the motive of the
crime was held to be robbery. The trial Court, on analysis
of the entire evidence found 11 incriminating
circumstances to have been conclusively established,
which taken together formed a strong chain pointing
towards the guilt of the accused. The accused persons were
thus, convicted and sentenced as already stated
hereinbefore.
8. Heard Mr. Azad Keshari Dash, learned counsel
appearing for the accused- Surendranath Sahoo (CRA
No.182 of 2001); Mr. Sudipto Panda, learned counsel
appearing for accused- K. Balaji Achari and K. Maleswar
Achari (CRA No. 166 of 2001) and Mr. Debraj Mohanty,
learned Addl. Government Advocate for the State.
9. Mr. A.K. Dash assails the impugned judgment
on the following grounds:
(i) Though P.W.-7 described each individual
ornament worn by the deceased including its
weight at the time of leaving the house, he was
not present when the deceased actually left the
house for which his evidence in this regard
should not have been accepted by the trial court.
Furthermore, the daughters-in-law of the
deceased, PWs 17 and 18 who were present
when the deceased left home did not specify the
ornaments which creates a doubt.
ii) The so-called seizure of the gold locket and
ear tops from the housed of the co-accused on
20.09.1998 by the I.O. cannot be accepted in
view of his admission that he had not put them
in sealed cover had retained them with him till
15.12.1998.
(iii) On the above ground also, the so-called TI
parade of the ornaments loses its value.
(iv) The last-seen theory projected by the
prosecution through the evidence of PWs 8 and
9 cannot be accepted in view of the huge gap
between the time when they allegedly saw the
deceased and the recovery of her dead body.
10. Mr. Sudipto Panda assails the judgment of
conviction of the other accused persons also on the ground
that there is no evidence of the so-called seized articles
being kept in proper custody. He further argues that even
accepting the prosecution evidence that the co-accused
had visited the shop of PW-10, it not having further proved
that accused K. Balaji Achary and accused K. Maleswar
Achary dealt with the ornaments knowing the same to be
stolen property, the offence under Section 414 Cr.P.C. is
not attracted. The trial Court could not have placed
reliance on the stray statement made by the accused K.
Maleswar Achary in his statement under Section 313
Cr.P.C., which is not admissible evidence.
11. Per contra, Mr. Debraj Mohanty would argue
that there is clear evidence in the form of P.W.-7 that the
deceased had left home wearing several gold ornaments
which were specifically named by him and by carrying cash
of Rs.4,000/- along with her pension book. P.Ws. 8 and 9
had seen the deceased sitting on the veranda of the house
of accused Surendranath Sahu after 1 pm. No one else had
seen her thereafter till her dead body was recovered from
the canal. Mr. Mohanty further argues that the accused
while in custody gave discovery of the plastic bag
containing personal belongings of the deceased and also
led the police to the shop/workshop of the other two
accused persons, where he had gone to melt/purify gold
and sell the same. He further argues that even though the
rickshaw puller PW-12 turned hostile, yet he admitted to
have given statement before the Magistrate which was
recorded under Section 164 of Cr.P.C.. All these
circumstances and evidence according to Mr. Mohanty
clearly proves the guilt of the accused persons for which
they were rightly convicted.
12. Having noted the rival contentions, we shall now
proceed to analyse the evidence on record and the
reasoning adopted by the trial Court vis-à-vis these
contentions.
13. As already stated, prosecution has heavily relied
upon the evidence of PWs-7, 8, 9 and 12 to hold that the
accused, with the intention of robbing the deceased of her
gold ornaments and cash, committed her murder and
threw her dead body to the canal after concealing it in a
gunny bag. The prosecution has further relied upon the
evidence of PWs 1, 2 and 10 regarding the purification and
sale of gold ornaments. Reading of the impugned order
reveals that after analysing the evidence of all these
witnesses, the trial Court found the following incriminating
circumstances to have been conclusively established.
"(21) Thus to sum up, the entire evidence led by
the prosecution the following incriminating
circumstances have been conclusively established;
(i) On 09.09.93 at about 1 P.M. the
deceased Rekhamani Panda left the house of
P.W. 7 and at that time she was wearing
gold ornaments and holding some cash;
(ii) On that day i.e. Wednesday at about 3
P.M. P.Ws 8 and 9 saw an old woman
wearing a white saree in the company of the
accused and was sitting on the front
verandah of his house. They later identified
the photograph of Rekhamani to be that of
the old lady, seen with the accused;
(iii) On the following Friday accused with the
help of rickshaw puller P.W. 12 carried the
gunny bag to the canal and threw the same
in it:
(iv) On 13th, Sunday, the dead body was
found floating in the canal at Minaguda, the
same was brought out of the water and
identified to be that of mother of P.W.7. At
that time of recovery of the dead body the
gold ornaments and cash were not found in
her person;
(v) While in police custody the accused led to
the discovery of (a) purified gold piece M.O.1,
(b) Ornaments M.O.II to IV and some cash (c)
he also led to the discovery of the 'jori' bag
containing belongings of the deceased;
(vi) Personal belongings of the deceased and
her ornaments were duly identified by
P.W.7, 17 and 18 in the Court to e belonging
to the deceased and the same were also
identified before the Magistrate in T.I.
parade;
(VII) The conduct of the accused in leading
the police to the workshop and goldsmith
shop where the gold ornaments were
purified and later on sold
(viii) The homicide nature of death of the
deceased;
(ix) Motive of robbing the deceased of er
valuables;
(x) Recovery of some blood stains from the
house of the accused;
(xi) False plea of the accused persons."
14. It has been argued before us that PW-7 not being
present at home, is not competent to speak about the
ornaments worn by the deceased at the time of departure
from the house. Reading of the evidence of PW-7 shows
that he had vividly described the wearing apparel and the
ornaments worn by her mother (deceased). The relevant
part of his testimony is reproduced below:
"On 9.9.98 my mother was with me but at about 1
P.M. she started for Bariniput to visit my elder
brother Siva Prasad. At the time of her departure
from my house that day my mother was wearing a
white colour saree. She was holding some spare
clothes in a Jari bag. She was also wearing a gold
Jigininanu of 4 Tolas, a Sonkho designed gold
necklace of approximately 3 Tolas and a pair of ear
tops with red and white small stones attached to
them of one tola weight approximately. On both
hands she was wearing four gold Rulis (bangles) of
4 Tolas approximately. At that time she had cash of
about 3 to 4 thousand rupees which amount she
received as pension and sale proceeds of paddy. At
that time she told me that she will proceed to
Barniput in a rickshaw. Thereafter I left for Court"
15. As can be seen, PW-7 has not only specified
each of the ornaments but also the weights thereof. In
cross-examination however, he admitted that he was not
present at home when his mother left for Bariniput and
that on that day he left for the Court at about 11 a.m.
16. PW-17, being the daughter-in-law of the
deceased, was present at home at that time. She admitted
that her husband was not at home when her mother-in-law
left home at about 1 p.m. She further stated about the
wearing apparels and gold ornaments worn by her mother-
in-law but did not specify the weights of each. PW-18 is
another daughter-in-law of the deceased and wife of PW-7,
who claims to be present at home when her mother-in-law
departed. She also described the wearing apparel and gold
ornaments worn by her at that time without specifying the
weights of each. Since PW-7 admittedly was not present at
home, his evidence cannot be of any importance. Further,
though PW-7 stated that the deceased also carried cash of
3 to 4 thousand rupees which she had received as pension
and sale proceeds of paddy, PW-17 and 18 did not whisper
a word about it. A reasonable doubt therefore, arises in
this regard.
The deceased was aged about 70 years and was
a widow. Though nothing is on record to suggest her state
of health yet considering her advanced age, it strikes as
somewhat odd that such a lady would leave house alone
even in day time wearing valuable ornaments and carrying
cash with her.
17. Be that as it may, accepting for a moment that
the deceased had indeed left home to visit her elder son at
Bariniput by stating that she would hire a rickshaw, there
is no reason why she would not or did not hire a rickshaw.
According to the prosecution, she was seen sitting on the
veranda of the accused sometime later in the afternoon as
deposed by PWs-8 and 9, which according to the trial
Court satisfies the last seen theory. We have gone though
the evidence of PWs-8 and 9 carefully. According to PW-8,
she saw an old lady of approximately 55 years of age sitting
in the front veranda of the house of the accused wearing a
white saree and had some gold bangles in her hands. She
was also bespectacled. On being asked by her, accused
Surendra said that she is the mother of one of his friends.
In cross-examination, she stated that she saw the old lady
at about 2 p.m. and that she and accused were inside the
house. By the time she left, the old lady had not left the
house. She further admitted to have seen the old lady for
about a minute. She identified the photograph of the lady
as being that of the deceased. Almost similar is the version
of PW-9, who is none other than the daughter of PW-8. She
stated that at about 3 p.m., her mother (PW-8) went to
Damanjodi and at that time an old lady was sitting on the
front veranda of the accused. In cross-examination, she
stated that she saw the old lady at about 11 to 11.30 a.m.
Though she stated in her testimony that the old lady was
wearing a white saree and white blouse in cross-
examination, she could not say what the old lady was
wearing at that time. If we compare the evidence of PWs-8
and 9, we find that there is discrepancy as regards time
when both of them claim to have seen the old lady. Viewed
objectively, the evidence of PWs- 8 and 9 does not inspire
confidence at all. Even otherwise, there is no reason why
the deceased, who intended to go to Bariniput by rickshaw,
would go to the house of the accused. Prosecution has
projected a theory, though not adequtately proved, that the
accused offered to arrange her to go by bus instead of
rickshaw as it would be cheaper and therefore, brought her
to his house. If such was the case, why would the accused
bring her to his house instead of taking her to the bus
stand. Secondly, there being nothing on record to show any
prior acquaintance or relationship between the accused
and the deceased, it is difficult to believe that an old lady
would accompany a stranger to his house. Identification of
the photographs of the deceased cannot be treated as an
incriminating circumstance for the reason that according
to PW-8, the age of the lady that she had supposedly seen
was approximately 55 years, where as the prosecution
claims the age of the deceased to be 70 years. Another
important aspect is that PWs-8 and 9 claim to have seen
the deceased on 09.09.1998 but her dead body was fished
out from the canal on 13.09.1998 i.e., after four days.
What transpired in between is not known. It is trite law
that for the last seen theory to be acceptable, the gap
between the time when the deceased was last seen and the
time when she is found dead must be small. We are
therefore, unable to place much reliance on the evidence of
PWs. 8 and 9 nor are persuaded to treat their evidence as
supporting the last seen theory projected by the
prosecution.
18. The third circumstance noted by the trial Court
is evidence of the rickshaw puller, PW-12. We find that he
turned hostile but being cross-examined by the
prosecution, he admitted to have stated before the Police as
well as the Magistrate implicating the accused. In so far as
his admission regarding 161 statement is concerned, the
same has no evidentiary value. In so far his admission
regarding 164 statement is concerned, we find that the
Magistrate recording statement was not examined. The
statement is marked Ext-14 and recorded by JMSC,
Jeypore. There is no endorsement nor any other evidence
placed on record to show that the statement was recorded
after the witness was granted sufficient time for reflection.
Since the prosecution intended to rely upon the statement
it was incumbent upon it to examine the Magistrate so that
it could have been ascertained as to whether sufficient time
was given to the witness for reflection before making his
statement or if he was under any kind of pressure or
duress etc. In the absence of such evidence, the statement
looses its evidentiary value and cannot be relied upon.
19. The next incriminating circumstance noted by
the trial Court is that the dead body was found floating in
the canal at Minaguda, identified to be that of the deceased
and that gold ornaments and cash were not found on her
person. In so far as cash is concerned, we have already
held that there is no evidence to show that she was
carrying cash. Without other supporting evidence, the
discovery of the dead body in the canal by itself cannot be
treated as an incriminating circumstance. As regards the
gold ornaments, the trial Court has relied upon the
evidence relating to discovery of purified gold piece marked
MO-I, gold locket and 2 gold ear tops marked MO -II to IV.
These ornaments were also identified by PWs-7, 17 and 18
in the Court during trial and also before the Magistrate in
the TI Parade. The accused led the Police to the workshop
and goldsmith shop where the ornaments were purified
and later sold. It is the prosecution case that the
ornaments were seized from the accused and the purified
gold from co-accused K. Maleswar Achary on 18.09.1998.
However, as vehemently argued by learned counsel
appearing for the accused persons, no reliance ought to be
placed on such evidence in view of the admission of the
I.O. that the said articles were with him and not in safe
custody. In this connection, we would refer to the relevant
portion of paragraph-20 of the cross-examination of the
I.O. (PW-19) which is reproduced below:
"After seizure of the gold locket and ear tops I
did not put them in sealed covers. The said
locket and ear tops were with me till 15.12.98
on which date I handed over the same to the
I.I.C. xx xx xx xx"
20. So, it is evident that from the date of seizure,
i.e., 18.09.1998, till 15.12.1998 the articles were with the
I.O. himself and not in proper custody, such as, Police
Malkhana. This is a very significant omission that shakes
the very foundation of the case. So, even if it is accepted for
a moment that the I.O. had indeed made some seizures,
unless it is further shown that the seized articles were kept
in proper custody, such evidence looses its importance and
so also the evidence relating to conduct of TI Parade.
Significantly, while the Magistrate (PW-6) stated that only
he and his staff were present inside his chamber at the
time of TI parade and no Police Officer was present, yet
PW-7 admitted in cross-examination that at the time of TI
parade, the IIC was also present. While we do not wish to
comment on the procedure adopted by the Magistrate or
doubt his fairness and knowledge of the procedure to be
followed yet, having regard to the evidence that ornaments
in question were not kept in proper custody for nearly four
months prior to the TI parade, it raises a reasonable doubt.
21. The nature of death of the deceased being
homicidal in nature, has to be supported by other
incriminating evidence to show the guilt of the accused but
by itself it has no value.
22. As regards the motive of the accused for
committing the crime i.e., robbery, the whole case as
projected by the prosecution appears doubtful as already
discussed. For a person with such a motive it is surprising
that he would bring his victim to his house and make her
sit on the veranda for quite some time and thereafter kill
her inside the house and rob the valuables.
23. As regards recovery of some blood stains from
the house of the accused, which was found to be human
blood, in the absence of any evidence of any bodily injury
being caused, the same is of no consequence. We may
profitably refer to the evidence of autopsy surgeon, PW-15,
that three injuries were found, one on the leg and two on
the elbow joints but the doctor could not opine whether
they were antemortem or postmortem in nature. Death in
all probability was due to asphyxia as a result of
strangulation. In view of such inconclusive evidence, mere
recovery of blood stains cannot be treated as an
incriminating circumstance.
24. The trial Court has listed false plea of the
accused persons as being an incriminating circumstance
against them. We do not agree. We say so because there is
nothing in the evidence to show that co-accused K. Balaji
Achary had purchased the gold from accused Surendra
knowing it to be stolen property. So also, co-accused K.
Maleswar Achary also melted the gold knowing it to be
stolen property. The trial Court has relied upon the so-
called admission of co-accused, Maleswar Achary in his
313 Cr.P.C. statement in this regard. In the absence of any
positive evidence, a mere statement made during 313
Cr.P.C. examination can hardly be treated as admissible
evidence to be used against the accused persons.
25. Thus, we find that none of the circumstances
listed by the trial Court can be treated as incriminating in
the least considered individually or jointly. The
fundamental tenet of the criminal jurisprudence enjoins
upon the Court to accept evidence that is beyond
reasonable doubt. We are conscious that any fanciful
doubt or speculation, imagination etc. cannot be treated as
reasonable doubt but then, if the doubt as such is capable
of shaking the foundation of the case, the same cannot be
used to hold the accused guilty.
26. Coming to the facts of the present case, we find
that there are some materials which are capable of
arousing a suspicion that the accused may have killed the
deceased but, unless the 'may' becomes a 'must', it would
not be safe to hold him guilty conclusively. While 'may'
connotes a mere possibility, 'must' confers a definiteness to
such possibility, in the absence of which, no person can be
held guilty. The prosecution must be held to have failed to
traverse the distance between 'may' and 'must' in the
present case. As such, the impugned order of conviction
cannot be sustained.
27. For the forgoing reasons therefore, the appeals
are allowed. The impugned judgment of conviction and
sentence is hereby set aside. The accused persons being on
bail, their bail bonds be discharged.
..........................................
(Sashikanta Mishra, J)
Manash Ranjan Pathak, J. I agree.
...........................................
Location: HIGH COURT OF ORISSA, CUTTACK
Orissa High Court, Cuttack
The 19th March, 2026/A.K. Rana, P.A.
