Hig High Court
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IN THE HIG HIGH COURT OF ORISSA, CUTTACK CRLA No.20 of 2002 An appeal from the passed by the Session Trial Case No.212 of 2 the judgment and order dated 02.05 ssions Judge, Mayurbhanj, Baripada in S of 2000. 2.05.2002 Sessions --------------------- Jataram Ho ....... Appella pellant -Versus- State of Odisha ....... Respon spondent For Appellan llant: - Mr. Debi Prasad D ad Dhal ate Senior Advocate For Respond ondent: - Mr. Sarat Ch. Pra Addl. Standing Co Pradhan g Counsel --------------------- P R E S E N T: THE HONOU OURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABL BLE MR. JUSTICE CHITTARANJAN DA DASH ------------------------ Date of He ------------------------ ---------------------------------------------- f Hearing and Judgment: 14.10.2025 ---------------------------------------------- ---------- ---------- By the Bench: Appellant lant Jataram Ho along with co-accused Si Sitaram Ho faced trial in th the Court of the learned Sessions J ns Judge, Mayurbhanj, Baripada pada in Sessions Trial Case No.212 of 20 f 2000 for the offence punishabl hable under Section 302/34 of the Indian dian Penal Code (in short ‘IPC’) PC’) on the accusation that on 14.01.20 1.2000 at about 3.00 p.m. at at village Brahmanipal, in furtherance o e of their common intention, t n, they committed murder of Gajendra dra Dalai (hereinafter ‘deceased ased’). The learne arned trial Court, vide impugned judgme ment and order dated 02.05. .05.2002, though acquitted the co-ac accused Sitaram Ho of the cha charge under section 302/34 of IPC, but but found the appellant guilty under section 302 of IPC and sentence enced him to undergo imprisonm onment for life. Prosecution Case: 2. The prose
Legal Reasoning
rosecution case, as per the first inform formation report (hereinafter ‘t r ‘the F.I.R.’) (Ext.1) lodged by one Ma Mangalal Singh (P.W.1), the he Ward Member of village Brahmanip nipal, on 15.01.2000 before th e the Officer in-charge of Sarat police st e station, in short, is that on 14 n 14.01.2000 he had been to the village age pond, locally known as ‘Pa Padma Pokhari’ to get fish coming to to know about fish catching a activities going on. At about 3.30 p.m. .m., while he was returning hom home, on the way Baidhar Ho (P.W.5) m met him and told him that abo about half an hour back, after returning ning from the pond, he found d the dead body of the deceased was ly s lying on the thrashing floor of of his house with bleeding injuries on th the legs and right hand. Get Getting such information from P.W.5, .5, P.W.1 rushed to the spot an and found the dead body of the decease eased was lying in the thrashing ing floor with injuries on his legs and han hand. He got information from from Champa Hembram (P.W.3), the w e wife of P.W.5 that both th the appellant Jataram Ho and co-ac accused Sitaram Ho quarrelle rrelled with the deceased and assaulte ulted the deceased by means ans of a ‘Budia’ (axe) and killed him. im. P.W.1 intimated the matter tter to the Gramarakhi, who also came me to the spot and saw the dea dead body. Since by that time, night h t had set in, F.I.R. was lodged o ed on the next day i.e. on 15.01.2000. On the ba e basis of the report submitted by P.W.1, .1, Sarat P.S. Case No.03 date dated 15.01.2000 was registered under s er section 302/34 of IPC again gainst the appellant Jataram Ho and th d the co- accused Sitaram Ho and P.W.9 Banabihari Mohanty, the O. e O.I.C. of Sarat police station to n took up the investigation of the case. During th the course of investigation, P.W.9 exa examined the informant (P.W.1 W.1) and other witnesses, visited the spo spot and prepared spot map ( p (Ext.8), held inquest over the dead bo d body of the deceased and nd prepared the inquest report (E (Ext.5), dispatched the dead ad body for post mortem examination t n through the constable vide de e dead body challan (Ext.6), searched f ed for the accused persons, but but found them absconding. On 16.01.20 .2000, he arrested the appellan ellant so also the co-accused Sitaram H m Ho and while in police custo ustody, the appellant stated to have gi e given a statement regarding ing concealing the weapon of offence i.e e i.e. axe (M.O.I) and according rdingly, his disclosure statement under s er section 27 of the Evidence ce Act was recorded vide Ext.7 and th d the axe (M.O.I) was recovere vered as per the seizure list Ext.2/1. A A brown colour napkin was se s seized on 16.01.2000 on being produ duced by co-accused Sitaram am Ho as per seizure list Ext.3/1 an and on 17.01.2000, both t h the appellant and the co-accused sed were forwarded to the Cou Court. On 26.04.2000, P.W.9 made ov over the charge of investiga tigation to P.W.7 Damodar Mohapatra atra, his successor, who during ring course of his investigation, sent the the seized articles to the S.F.S. F.S.L., Bhubaneswar for chemical exami amination and on completion o n of investigation, he submitted charge rge sheet against the appellan llant and the co-accused Sitaram Ho Ho under section 302/34 of IPC IPC. Framing of Charges rges: 3. On receip eceipt of the charge sheet, the case case was committed to the C e Court of Session following due proc rocedure, where the learned ed trial Court framed charge agains ainst the appellant so also the the co-accused Sitaram Ho as aforesaid said. Both the appellant and the the co-accused pleaded not guilty and cl d claimed to be tried and acco accordingly, the sessions trial procedur dure was resorted to establish ish their guilt. Prosecution Witnes tnesses, Exhibits & Material Objects: 4. In order t er to prove its case, the prosecution exa examined as many as nine num umbers of witnesses. P.W.1 Ma Mangalal Singh, who is the Ward Mem ember of Village Bramhanipal, al, is the informant in the case. He state tated that on being informed by d by Baidhar Ho (P.W.5) regarding the de e death of the deceased, he had had been to the spot and found that the the dead body of the deceased ased was lying with injuries on his leg an and also found blood on the he thrashing floor. He further stated th d that he along with P.W.5 we went to Grama Rakshi (P.W.2) and tol told him about the death of th f the deceased and P.W.2 came to the sp spot and saw the dead body an y and on the next day, they went to the the police station and he orally rally reported the matter to the police, ice, which was reduced into writ writing. He proved his report as Ext.1. P.W.2 Dur Durga Prasad Gandual was the Grama R a Rakshi and also a co-village llager of the appellant and he stated th d that on getting information f n from P.W.1, he had been to the spo spot and found the dead body ody of the deceased lying on the thrashing hing floor of P.W.5. He also acc accompanied P.W.1 to the police station tion when F.I.R. was lodged. P.W.3 Cha Champa Hembram, who is the wife of P of P.W.5, did not support the p e prosecution case for which she was de s declared hostile by the prosecu secution. P.W.4 Ub Ubuga Ho is a witness to the seizure re but he has not supported the the prosecution case. P.W.5 Bai Baidhar Ho is a witness to the seizure re but he also did not support t rt the prosecution case. P.W.6 Ja Jasoda Dalai, who is the widow o w of the deceased, has stated ated that on the date of occurrence, sh , she had been to the forest an t and on her return, she sat on the veran randah of her house and at tha that time, one Joda and Rabi arrived ne near her and used filthy langua nguage and threatened to kill her and the they also told that they had a d already killed her husband (deceased ased). On hearing the same, sh , she had been to the village Brahmanip anipal and saw the dead body of y of her husband lying in the thrashing fl ng floor of P.W.5 with injuries on s on his leg and hand. She also stated th d that she found drops of blood lood near the dead body and thereafte after, she went to the Grama R Rakhi and reported the matter. P.W.7 Da Damodar Mohapatra was the O.I.C. of . of Sarat police station, who to o took over charge of investigation from om P.W.9 and submitted the cha charge sheet. P.W.8 Dr
Legal Reasoning
Dr. Srinivas Naik was working as Su s Surgery Specialist in S.D. Ho Hospital, Udala, who conducted post m t mortem examination over the the dead body of the deceased and prov proved his report vide Ext.4. P.W.9 Ban Banabihari Mohanty, was working as O. O.I.C. of Sarat police station tion, who investigated the case from from the beginning and handed nded over the charge of investigation to P to P.W.7. The pro prosecution proved eleven number bers of documents as exhibit hibits. Ext.1 is the F.I.R., Ext.2/1, Ext.3/ t.3/1 and Ext.9 are the seizure ure lists, Ext.4 is the post mortem report, ort, Ext.5 is the inquest report, ort, Ext.6 is the dead body challan, Ext.7 xt.7 is the disclosure statement ent of the appellant, Ext.8 is the spot pot map, Ext.10 is the Chemi emical Examination Report and Ext.11 .11 is the report of the Serologi logist. The pros prosecution also produced two numbe mbers of material objects. M.O M.O.I is the axe and M.O.II is the napkin kin. Defence Plea: 5. The defen efence plea of the appellant is one of deni denial and it is pleaded that on on account of political hostility, he has has been falsely implicated in th in the case. Findings of the Tria Trial Court: 6. The learn arned trial Court, after analysing the ev evidence of the doctor (P.W.8) .8) and the report (Ext.4) submitted by d by him, came to hold that the t the prosecution has proved that the dec deceased died a homicidal deat death. Relying on the evidence of extra j ra judicial confession made by t by the appellant before P.W.6 and the m e medical evidence adduced by d by the doctor (P.W.8) and the recov covery of M.O.I at the instanc tance of the appellant as stated by th the I.O. (P.W.9) though acqui cquitted the co-accused Sitaram Ho, but but found the appellant guilty un ty under section 302 of IPC. Contentions of the P the Parties: 7. Mr. Debi ebi Prasad Dhal, learned Senior Adv Advocate appearing on behalf o alf of the appellant emphatically contende nded that the conclusions arrive rrived at by the learned trial Court is comp ompletely erroneous and there here are no clinching evidence on reco record to sustain conviction of of the appellant under section 302 IPC IPC. It is argued that though in gh in the F.I.R., it is stated that the info informant (P.W.1) came to know know from P.W.3 that the appellant and t nd the co- accused assaulted th d the deceased during quarrel, but P.W. P.W.3 has been declared hostile stile by the prosecution and even the info informant (P.W.1) has not stat stated in his evidence to have receive eived any information from P.W P.W.3 that she was an eye witness t ss to the occurrence and that hat the appellant and the co-accused S d Sitaram Ho were the assailant ilants of the deceased. Learned counsel f sel further submitted that P.W.6 W.6, who is widow of the deceased stated ated to be a witness to the ext xtra judicial confession, has simply state tated that one Joda and Rabi ha i had disclosed before her that they had had killed her husband (deceas ceased), but she has stated that she d e did not know the accused pe d persons standing in the dock. Therefo erefore, it cannot be said that t at the appellant came before P.W.6 and and made an extra judicial conf onfession. He further argued that even t en though as per the prosecutio ution case, one axe was seized at the ins e instance of the appellant as de deposed to by the I.O. (P.W.9) and th d the C.E. report (Ext.10) also in so indicates that human blood of Group ‘A up ‘A’ was found in the said we weapon, since the prosecution has fai failed to establish any link be between the said weapon with the cri crime in question, mere recov covery of the axe (M.O.I) has got no rele relevance in this case and even ven though it can be said that the prose rosecution has proved the homic omicidal death of the deceased, but in ab n absence of any direct evidence ence to establish the complicity of the app appellant in the murder of the the deceased, the circumstances availab ailable on record do not form form a complete chain and therefore fore, the conviction of the appe appellant is not sustainable in the eyes of of law. Mr. Sara arat Chandra Pradhan, learned Add Additional Standing Counsel a l appearing for the State supported orted the impugned judgment a nt and the order of conviction. Whether the deceas ceased died a homicidal death?: 8. Before ad adverting to the contentions raised b d by the learned counsel for t or the respective parties, let us first ex examine whether the prosecu secution has successfully established th that the deceased met with a ith a homicidal death or not. Apart fro from the inquest report (Ext.5 xt.5) prepared by P.W.9, it appears th that the Medical Officer (P.W. .W.8) attached to the S.D. Hospital, Udala dala, who conducted the post- -mortem examination over the dead bo d body of the deceased on n 16.01.2000, found the following ex external injuries: “(A) The There were four nos. of lacerated wound unds on the p e posterior aspect of left thigh. All th ll the injuries tr s transversely placed. All the injuries wer were bone deep deep of (i) size o ize of the injury 4” x 2” x 3” (ii) Size o ize of the injury 5” x 3” x 2” (iii) Size o ize of the injury 3” x 2” x 3” (iv) Size o ize of the injury 4” x 1” x 3” (B). The There were three lacerated injuries on th n the medial asp l aspect of left leg below knee. (i) 1” belo below the knee joint size 4” x 1” x 2 (ii) 2” belo below knee joint size 4” x 2” x ½” (iii) 3” bel below knee joint size 3” x 1” x 2” (C) Com Compound fracture of right arm medi edial aspect, 3 t, 3 nos. of lacerated wounds on th the posterior ior lateral aspect of right arm, compoun ound fracture o re of right femur, which 2 nos. of lacerate rated wounds a s about 4” knee posteriorly. The fractur cture of partial rtial and lacerated wound on the anterio terior aspect of t of knee. The docto octor further stated that the cause of deat death was due to severe bleedin eding and shock. He proved the post-m mortem report marked as Ex Ext.4 and further opined that the cau cause of death was due to sev severe bleeding. Nothing g has been brought out in the e cross- examination of P.W.8 W.8 to challenge regarding the homicidal idal death of the deceased. Mr. D.P. D .P. Dhal, learned Senior Advocate appeari earing for the appellant has also also not challenged the evidence of the do e doctor. Thus, we we are of the view that on the basis sis of the evidence of the docto octor (P.W.8), the P.M. report finding vide vide Ext.4 and the inquest repor ort (Ext.5), the learned trial Court has as rightly arrived at the conclu nclusion that the prosecution has succe ccessfully established that the d he deceased died a homicidal death. Absence of direct ev ct evidence: 9. The inform formant (P.W.1) has mentioned in the the F.I.R. that he came to know know from P.W.3 that the appellant as w as well as the co-accused assau ssaulted the deceased by means of a ‘ a ‘Budia’ during course of a q a quarrel, however the evidence of P.W f P.W.1 is silent that any such i ch information has been received by him him from P.W.3. Moreover, P P.W.3 has stated that she was not p t present when the occurrence nce took place during Makar festival an l and that she could not say a y about the occurrence. The prosecutio ution has declared P.W.3 as ho hostile. Therefore, there is no direct ev evidence on record for the p e purpose of finding the complicity o ty of the appellant in the crime rime in question. Circumstantial evid evidence: 10. Law is we well settled that when a case rests upo upon the circumstantial evidenc dence, such evidence must satisfy the fol following tests: (i) the circums umstances from which an inference of g of guilt is sought to be drawn, m n, must be cogently and firmly establishe lished; (ii) those circumstances ces should be of a definite tendency une unerringly pointing towards gui guilt of the accused; (iii) the circumst mstances, taken cumulatively, s ly, should form a chain so complete that that there is no escape from rom the conclusion that within all h ll human probability the crime ime was committed by the accused and and none else. The circumstant tantial evidence in order to sustain conv conviction must be complete a e and incapable of explanation of any ny other hypothesis than th that of the guilt of the accused. sed. The circumstantial eviden idence should not only be consistent wi t with the guilt of the accuse cused but should be inconsistent wit with his innocence. In a case ase based on circumstantial evidence, th , there is always a danger that that conjecture or suspicion may take the the place of legal proof. The C he Court has to be watchful and ensur sure that suspicion, howsoever ver strong, should not be allowed to tak take the place of proof. A mor moral opinion howsoever strong or genuin nuine and suspicion, howsoever ever grave, cannot substitute a legal pr l proof. A very careful, cautious ious and meticulous appreciation of evide vidence is necessary when the the case is based on circumstantial evid evidence. The prosecution must ust elevate its case from the realm of ‘m f ‘may be true’ to the plane of ‘m of ‘must be true’. P.W.1 and and P.W.2 are the post occurrence witn witnesses and they have stated ated to have come to the spot and foun found the dead body of the dece deceased lying with some injuries. P.W.6 Ja Jasoda Dalai, who is the widow o w of the deceased, has stated ted that she did not know the accused pe d persons. However, she stated t ted that the occurrence took place during ing Makar festival and she had b ad been to the forest and while she was as sitting on the verandah of h of her house, at that point of time, one one Joda and Rabi arrived nea near her and threatened her to kill an l and also stated that they had k ad killed her husband (deceased). She ho e however stated that she saw t aw the deceased lying in the thrashing fl g floor of Baidhar Ho (P.W.5). In view of w of the evidence of P.W.6, it does not a ot appear that the persons, who who made extra judicial confession befo before her are the appellant and and the co-accused Sitaram Ho inasmu smuch as she has stated that hat she did know the accused persons sons. The prosecution has also also not brought on record that thos hose two persons, who made de extrajudicial confession before her a r are the accused persons stan standing in the dock. Therefore, we are are of the view that it cannot b ot be said that the appellant made any any extra judicial confession be before P.W.6 and thus the learned trial trial Court committed error in pl n placing reliance on the evidence of P.W P.W.6 and holding her to be a w a witness to the extra judicial confession ion of the er. appellant before her. Recovery of Axe (M (M.O.I): 11. The evide vidence of the I.O. (P.W.9) only indicate cates that after arrest of the a e appellant, he made a disclosure stat statement which was recorded ed as per Ext.7. The I.O. further state tated that one axe (M.O.I) was was seized by him. The evidence is comp ompletely silent to the effect t ct that after giving disclosure statemen ment, the appellant led the poli police party and the witnesses to the pl e place of concealment and tha that at the instance of the appellant, th the axe was seized. No inde independent witness has been examin mined to substantiate the seiz seizure of axe (M.O.I) at the instance ce of the appellant. Therefore, re, the seizure of M.O.I does not clearly arly come within the purview of of section 27 of the Evidence Act. Even tho though the Chemical Examination n Report (Ext.10) indicates th s that the axe which was seized as pe s per the seizure list Ext.2/1 w 1 was found to be containing human blo blood of Group ‘A’, but nothi othing has been established to connec nnect this particular weapon wit with the offence in question and moreo reover, it has not been proved ved that the deceased was having blood ood group of ‘A’. Therefore, on on the basis of recovery of axe (M.O.I) ) as per the seizure list Ext.2/ t.2/1 and C.E. Report finding, it cannot b ot be said that the prosecution h ion has proved the charge under section 3 ion 302 of IPC against the appel pellant. Conclusion: 12. In view o w of the foregoing discussions, we are are of the humble view that th t the learned trial Court was not justif ustified in relying on the so-call called extra judicial confession stated to d to have been made before re P.W.6 as well as recovery of M.O M.O.I for convicting the appell pellant under section 302 of IPC. Thu Thus, the conviction of the appe appellant under section 302 of IPC is not not legally sustainable in the eye eyes of law. In the re result, the Criminal Appeal is allowed wed. The impugned judgment ent and order of conviction of the app appellant under section 302 02 of the IPC and the sentence p e passed thereunder is hereby eby set aside and the appellant is acquit quitted of the charge under sect section 302 of IPC. The appel ppellant is on bail by virtue of the order der of this Court. He is dischar charged from the liability of bail bonds onds. The personal bonds and th d the surety bonds stand cancelled. ............................. .......... S.K. Sahoo, J. Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 17-Oct-2025 13:23:40 Orissa High Court, Cuttack The 14th October 2025/PKSahoo Sahoo ............................... Chittaranjan Dash, J sh, J. ........