He High Court
Case Details
IN THE H HE HIGH COURT OF ORISSA AT CUT CUTTACK CRA No. 265 of 1998 of the Judgment of conviction dated 24 by Sri M. C. Satpathy, Sessions Judge, kanal, in Sessions Trial No.30-D of 19 er section 302/307/394/201/34 of the In 24th of August, ge, Dhenkanal- 1995, for the e Indian Penal (Arising out of t 1998, passed by Angul, Dhenkan offence under Code, 1860) Babaji Sahoo …. Appellant Mr. Dharanidh Senior Advocate Ms. Bini Mishra, Ad Ms. A. Mishra aranidhar Nayak, ocate, along with , Advocate and ishra, Advocate - Versus - State of Orissa …. Respondent Ms. Suval Addl. Standin . Suvalaxmi Devi tanding Counsel CORAM: THE HO AHOO E HON’BLE MR. JUSTICE S. K. SAHOO & THE HON’BLE BLE MR. JUSTICE CHITTARANJAN NJAN DASH Date of Argument: 03.07.2025 Date of Judgment: 24.07.2025 Chittaranjan D n Dash, J. 1. This Ap Appeal is directed against the judgment gment and order dated 24.08.19 .08.1998 passed by the learned Sessio Sessions Judge, Dhenkanal-Ang Angul at Dhenkanal in Sessions Trial Cas al Case No. 30-D of 1995, wherei herein the sole Appellant, along with five o five others, stood trial for the offe he offences under Sections 120-B, 394, 364 4, 364, 307, 302, 201, 411, and 35 and 353 read with Section 34 of the Indian ndian Penal Code (hereinafter refe er referred to as the “IPC”) for having ent ng entered into a criminal conspi conspiracy to commit robbery, kidnapping, pping, attempt to CRA No. 265 of 1 of 1998 Page 1 of 29 P murder, causing ausing disappearance of evidence, dishonestl onestly receiving stolen property, perty, and using criminal force to deter a pub r a public servant from dischargin urder. harging his duty, besides committing murder 2. The Ap he Appellant herein, along with one one Babuli @ Sudarshan Naik Naik, was sentenced to imprisonment for nt for life for the offence under S nder Section 302/34 of the IPC; rigorous im ous imprisonment for seven years years for the offence under Section 307/34 07/34 of the IPC; rigorous impris imprisonment for five years for the offe e offence under Section 394/34 94/34 of the IPC; and rigorous imprisonmen onment for three years for the of the offence under Section 201/34 of the IP the IPC. All the sentences were were directed to run concurrently. The The other four accused persons ersons who were charged along with the Ap the Appellant and Sudarshan Naik Naik, namely, Jadumani Naik, Prasanna N anna Naik, Bhola Bhuyan, and La nd Lachhaman Sharma, were found not guilt ot guilty of any of the offences and es and were acquitted accordingly. 3. Babuli abuli @ Sudarsan Naik filed a separate eparate Criminal Appeal, register egistered as CRLA No. 204 of 1998. While hile undergoing the sentence in nce in custody, he was prematurely relea released by the appropriate Go te Government under Section 432 of the of the Code of Criminal Proced Procedure. 4. The pro he prosecution case, as unfolded during tr ring trial, reveals that on 02.09.19 2.09.1994, between 4:00 PM and 4:30 PM, PM, the present Appellant, Bala , Balaji Sahu, along with co-accused Su sed Sudarsan @ Babuli Nayak, ayak, arrived at Gandhi Chhak, Choudwa oudwar, Cuttack. There, they app ey approached Akhaya Kumar Routray (P. ay (P.W.10), the owner of an am an ambassador car bearing registration num on number ORP- 5036, in the pre he presence of its driver, Samir Kumar Behe r Behera (P.W.9), CRA No. 265 of 1 of 1998 Page 2 of 29 P with the inten intention of hiring the vehicle for a or a journey to Dhenkanal. Foll l. Following negotiation, the hire charges w rges were settled at Rs.275/- (red (reduced from Rs.300/-), out of which Sud ich Sudarsan paid Rs.100/- in adv in advance for refuelling. After refilling th ling the car with diesel, P.W.9 d W.9 drove the vehicle to Dhenkanal, accom accompanied by the deceased, A sed, Abhaya Kumar Routray (the younger unger brother of P.W.10). Upon Upon reaching Dhenkanal, at the direct direction of the accused persons ersons, the driver drove the vehicle to sever several locations within the town e town and its outskirts. At approximately mately 9:00 PM, Sudarsan asked asked the driver to proceed towards Kama Kamakhyanagar. Though P.W.9 i .W.9 initially expressed hesitation to travel travel at night, he agreed after bei ter being offered an additional sum of Rs.10 Rs.100/-. Before proceeding furth g further, all of them stopped at a dhaba by ba by the side of National Highw Highway No. 42, where they took food. food. The food expenses were were paid by Sudarsan. Thereafter, th ter, the vehicle proceeded towar towards Kamakhyanagar. Upon crossing the ing the Brahmani bridge, Sudarsa udarsan asked the driver to stop the vehi e vehicle near a village. Both ac oth accused got down, held a private conve conversation for about half an h f an hour, and then re-entered the car to c r to continue the journey. After co fter covering a short distance, both accused d used directed the driver to take a d ake a diversion onto a kuchha road. Approxi pproximately half a kilometre into re into the diversion, both Sudarsan and Bala d Balaji suddenly attacked the occ he occupants of the vehicle. While inside th side the car, they assaulted the d the deceased, Abhaya, and P.W.9 with ith bhujali. The Appellant dragg dragged P.W.9 out of the car, threw him ab him about 8 to 10 cubits away, an ay, and stood over his chest before return returning to the CRA No. 265 of 1 of 1998 Page 3 of 29 P vehicle, presum resuming him dead. Thereafter, both accu th accused drove away with the v the vehicle, leaving the severely injured P.W red P.W.9 behind and the decease eceased still inside the car. A short while t while later, the vehicle returned turned to the spot where P.W.9 had been been abandoned. Upon not findin finding him there, the accused waited mome momentarily and then drove aw ve away towards the main road. P.W P.W.9, though grievously inju y injured, crawled to a ridge beside the de the road and remained there o there overnight. On the n the following morning, some villagers fr gers from nearby village Machhia achhia discovered P.W.9 in a moribund stat d state and took him to their vill eir village. He was given water and milk by ilk by the village headman, follow following which he managed to feebly eebly narrate the incident. The lo The local Sarpanch, Pravash Ranjan Mishr Mishra (P.W.8), was called and r d and recorded P.W.9’s version in writing (E ting (Exhibit 10). The same was was sent to the Tumusingha Police Stat e Station. While P.W.9 was unde s undergoing treatment, the vehicle owner, P ner, P.W.10, and his father visite visited him at the hospital. After learning arning about the incident, they ru they rushed to the site of occurrence. Later, i ater, information was received re ved regarding the discovery of a dead body body in a bushy area near villag village Machhia. P.W.16 proceeded to the s o the spot, where P.W.10 identifie entified the body to be that of Abhaya Kuma Kumar Routray. 5. The Of he Officer-in-Charge (OIC) of Tumusin umusingha P.S., P.W.16, having ing received information, arrived at the at the village at about 7:30 AM
Legal Reasoning
0 AM and treated the report as the First I First Information Report (FIR). H IR). He took up investigation and forwarded warded the report to the police sta lice station for registration of the case. P.W e. P.W.9’s blood- stained clothes hes were seized, and considering his d his deteriorating CRA No. 265 of 1 of 1998 Page 4 of 29 P health, he was e was shifted to the District Headquarter uarters Hospital, Dhenkanal, for l, for treatment and was admitted to the sur he surgical ward. The I.O. condu conducted inquest proceedings and sent th ent the body for post-mortem exa em examination after completing necessary f ssary formalities. In the c the course of further investigation, upon , upon receiving information that on that the accused persons had fled to Khar o Kharagpur with the stolen vehic vehicle, P.W.16, the Investigating Officer, fficer, proceeded there with a tea h a team of officers. On 07.09.1994, they they located the said vehicle at K le at Kharagpur Bus Stand. It was found in und in possession of accused Sud d Sudarsan, from whom the R.C. Book a ook and driving licence were al ere also seized under seizure list (Exhibit xhibit 7). All the accused persons ersons were present at the spot. When they a they attempted to obstruct the seiz he seizure of the vehicle, they were arrested o ested on the spot. Their wearing a ring apparels were also seized. The accused ccused were then produced befor before the local Magistrate at Midna Midnapore, who remanded them them to police custody with directions to pro s to produce them before the learn e learned S.D.J.M., Kamakhyanagar. Whil While in police custody, accuse accused Sudarsan led to the recovery of the of the weapon of offence bhujali ujali (M.O.I) which was seized under nder seizure list (Exhibit 6). Tes ). Test Identification Parades (T.I.P.) were ) were conducted in respect of su t of suspects Sudarsan Naik and Balaji Sah aji Sahu. P.W.16 also took necess necessary steps to send all seized incriminat iminating articles to the State State Forensic Science Laboratory, ory, Rasulgarh, Bhubaneswar. O war. On the direction of the learned Court Court, the seized vehicle was rel as released in the zima of Kalindi Routray outray, father of P.W.10. After c fter completing all formalities of investigati stigation, P.W.16 CRA No. 265 of 1 of 1998 Page 5 of 29 P submitted the ch the charge sheet against all accused person persons under the relevant provisio rovisions of the Indian Penal Code. 6.
Legal Reasoning
Ms. Bin s. Bini Mishra, learned Advocate for the or the Appellant, strenuously assa ly assailed the impugned judgment on the g n the ground that the Trial Court Court erred in concluding the authorship of hip of the murder of Abhaya as w a as well as the attempt to murder P.W. P.W.9 as being attributable to le to the Appellant, in the absence of c e of cogent and reliable evidenc vidence. Her primary contention centred ntred around the alleged anomali omalies in the conduct of the Test Identifica ntification Parade (T.I. Parade). I de). It was submitted that the T.I. Parade Parade had been conducted nearl nearly a month after the Appellant and t and co-accused were apprehend rehended. She drew attention to the testim testimony of the Investigating Of ing Officer (P.W.16), who admitted to havin having obtained photographs of hs of both the seized vehicle and the Appell Appellant prior to the T.I. Parade. arade. According to the learned counsel, th nsel, this raises a serious doubt as ubt as to whether the said photographs had b s had been shown to the witnesses nesses beforehand, thereby compromising th ising the integrity of the identifi dentification process. She further argued argued that the independent wi nt witnesses present during the T.I. Parad . Parade had not supported the id the identification of the Appellant, and the nd therefore, the testimonies of P es of P.W.9 (the injured eyewitness) and P and P.W.10 (the owner of the ve the vehicle) should not have been solely rel ely relied upon to base a convicti onviction. The learned counsel also point pointed out the absence of an of any specific and direct evidence fr ce from P.W.9 attributing any f any fatal blow to the deceased by the Appe Appellant. Thus, it was contende ntended that the prosecution had failed to es d to establish the Appellant’s culp s culpability in the murder of Abhaya. In a. In totality, the CRA No. 265 of 1 of 1998 Page 6 of 29 P defence challen hallenged both the delay and authenticity ticity of the T.I. Parade, and rai nd raised doubts regarding the timing of t g of the incident and the medica edical evidence concerning the age of the of the injuries. It was argued that d that the prosecution failed to establish a co a complete and unbroken chain chain of circumstances pointing unerringly ringly to the guilt of the Appellan ppellant. Accordingly, the learned counsel unsel prayed for acquittal of th of the Appellant by setting aside the e the impugned judgment. 7. Ms. S. D s. S. Devi, learned counsel for the State, su te, submitted that the impugned gned judgment is based on material evi al evidence that supports the sub the substratum of the prosecution case and is and is consistent with the med medical and ocular evidence. The The chain of circumstances, nces, established through the testimon stimony of 16 prosecution wi n witnesses, remains unbroken and leads leads to the only n of conclusion of .9, the Appellant’s guilt. P.W.9, the th injured eyewitness, had s, had accompanied the accused persons, in ns, including the Appellant and and co-accused Sudarshan Naik, for ne or nearly six to seven hours, du urs, during which they shared food and e and engaged in conversations, ions, culminating in the murderous ass us assault. This prolonged intera interaction rendered the T.I. Parade non- -essential, as the identificatio fication of the accused in Court by P.W.9 P.W.9 constitutes substantive evi e evidence. The argument that photograp otographs of the accused were p ere published before the T.I. Parade was e was conducted stands refuted b futed by the consistent testimonies of P.Ws f P.Ws.9 and 10, who denied a ied any prior exposure to such mate materials. The Investigating O ing Officer (P.W.16) admitted to havin having taken a photograph only h only of co-accused Sudarshan Naik and ik and not of the present Appell ppellant, further negating the defence fence’s plea of CRA No. 265 of 1 of 1998 Page 7 of 29 P prejudice. Ms. . Ms. Devi further submits that the A the Appellant’s bloodstained clo ed clothes were recovered and remained u ined unexplained by the defenc efence. The learned counsel emphasized hasized that the Appellant’s failu s failure to discharge the burden under Sec er Section 106 of the Evidence A nce Act, despite having exclusive knowle nowledge of the circumstances u nces under which the deceased was last see st seen alive and later found dead d dead, strengthens the inference of guilt. T uilt. The version of P.W.9 that t that the Appellant assaulted him with a b ith a bhujali and thereafter left h left him for dead, while the deceased was was taken away in an njured state and injured later found dead nea d nearby finds corroboration in tion in the medical evidence of P.W.4, who who confirmed that the injuries juries were ante-mortem and sufficient in th nt in the ordinary course of nature nature to cause death. The presence of the of the Appellant with the decease eceased until the last moment, coupled with d with the lack of any explanatio lanation regarding the deceased’s fatal fata injuries, completes the ch the chain of circumstances. The learned cou ed counsel relied on Satpal Vs. St s. State of Haryana, (2018) 6 SCC 610 and Namdeo Vs. State of M f Maharashtra, (2007) 14 SCC 150 to s to submit that conviction can n can be based on the testimony of a sin a single injured eyewitness if f s if found reliable. The learned counsel a nsel also placed reliance on the l n the landmark case of Sharad Birdhichand hand Sarda Vs. State of Maha aharashtra, (1984) 4 SCC 116, to asse o assert that the prosecution has n has satisfied the five golden principles n ples necessary to base a convictio nviction on circumstantial evidence. The a The argument of the Appellant th lant that he cannot be convicted under Sectio r Section 302 IPC merely because cause co-accused Sudarshan Naik has been p been prematurely released on rem n remission, and that he did not assault the d lt the deceased, is misplaced. As p . As per Section 34 IPC, both accused perso persons acted in CRA No. 265 of 1 of 1998 Page 8 of 29 P furtherance of e of their common intention when they n they assaulted P.W.9 and the d the deceased, and hence joint liability att lity attaches. Ms. Devi submits th its that the circumstances including hiring t iring the vehicle, presence of both of both accused during the entire episode, as de, assault inside the vehicle, rec le, recovery of the weapon, bloodstained c ined clothes, and consistent testim t testimonies form a cogent and unassailab sailable chain of events pointing inting to the Appellant’s culpability for m for murder and attempted murd murder, and therefore, the findings of the l f the learned trial Court are well well-reasoned and suffer from no infirmity irmity warranting interference. 8. The def he defence plea was one of complete denia denial and false implication. 9. To estab o establish the culpability of the Appellant an lant and the other accused person persons, the prosecution examined six d sixteen (16) witnesses in tota in total and proved twenty-six (26) docume ocuments marked as Exhibits 1 to ts 1 to 26. In addition, ten (10) material ob rial objects were exhibited as M.O as M.Os. I to X. 10. The lear he learned Trial Court, relying upon the tes he testimonies of the star witnes witnesses P.Ws. 9 and 10, along with th ith the medical evidence adduce adduced through P.W.4, and taking into acco to account several attending circum circumstances enumerated in its judgment, ment, found that the prosecution cution had proved its case beyond all reason reasonable doubt. The Court held held that the chain of circumstances establi established by the evidence unerrin unerringly pointed to the guilt of the Appell Appellant and the co-accused. Con d. Consequently, the Appellant and another other were found guilty of the ch the charges framed against them and were d were sentenced accordingly. CRA No. 265 of 1 of 1998 Page 9 of 29 P 11. Being ag eing aggrieved by the findings recorded by ed by the learned Trial Court, the , the Appellant has preferred the present app ent appeal. 12. Having aving regard to the nature of allegations and s and the charges framed against ainst the Appellant, it is incumbent upon th pon this Court to first examine mine whether the deceased, Abhaya, m ya, met with a homicidal death l death. In this regard, both the medical dical and ocular evidence assum assume considerable importance. Dr. Pab r. Pabitra Singh (P.W.4), who c who conducted the post-mortem examinat amination on the on 04.09.1994, observed the following injur g injuries: - dead body on 04 (i) One inci right inv mandibl (ii) Incised right for (iii) All the includin (iv) First, se severed (v) An incis depth be (vi) An incis the righ mid-line ne incised wound extending from angle of m involving right cheek and right mandibl e of mouth on andible, right andible is severed; cised would 3” x ½” x ½” on extensor of su ht fore-arm towards distal end, ll the fingers on the right hand were cluding muscles and bones; rst, second and third fingers of left hand ha vered including muscles and bones; were severed and had been surface of incised wound measuring 2.1/2” x 1’ X scalp pth behind the right ear; and incised wound measuring 3” x 1” x scalp d e right temporal region obliquely situated calp depth on tuated to the line of the scalp. According ording to the P.W.4, all the injuries are ante re ante-mortem in nature and suffic d sufficient in ordinary course to cause death death. It has also been opined by ed by the doctor that the death of the deceas deceased was due to hemorrhage a hage and shock on account of the multiple a tiple ante mortem injuries caused aused by the sharp cutting weapon and the nd the death was caused within a ithin about 18 to 36 hours prior to the po the post mortem examination. Si on. Similarly, the doctor stated that upon e pon examination CRA No. 265 of 1 of 1998 Page 10 of 29 P of the weapon o apon of offence, a Bhujali (MO-I) produced duced by the I.O., he found the inju the injuries on the body of the deceased by th d by the MO-I. The natur nature of death to be homicidal has not bee not been disputed by the defence t fence too. On the contrary, having regard to ard to the opinion furnished by th by the doctor conducting the autopsy ove sy over the dead body, in absenc absence of any material controverting the e the evidence of the doctor so al r so also Exbt.1, the Inquest report revealing ealing the nature of injuries wit s with apparent cause of death corrobo orroborating the versions of P.W f P.Ws. 9 and 10 as to the manner of injuries injuries caused on the deceased th sed there is nothing to doubt on the de the death of the deceased to be h to be homicidal in nature, which is sacrosanc rosanct. 13. In seque sequel to the nature of death held as hom as homicidal, the next question th tion that arises for determination is its aut its authorship. In this context, the the evidence of two prime witnesses nam es namely P.Ws.9 and 10 appear appears relevant in as much the prosec prosecution case substantially hi lly hinges on circumstantial evidence. ence. For better appreciation, we we find it profitable to reproduce the e the evidence of P.Ws.9 & 10 as 10 as under: P.W.9 stated that on 02.09.1994, he was wo as working as a driver of Amb Ambassador car bearing registration num n number ORP- 5036, owned by ned by Akshya Kumar Routray, and operatin perating as a taxi from Gandhi C dhi Chhak, Choudwar. At around 4:00 to :00 to 4:30 p.m., while he was pa was parked at Gandhi Chhak, two persons rsons approached the vehicle, who whom he identified in Court as the accuse accused Sudarsan Naik and Balaj Balaji Sahu. At that time, the owner Aksh r Akshya Kumar Routray was als as also present. The two accused negotiate gotiated with the owner to hire hire the vehicle to go to Dhenkanal. Th al. The fare was CRA No. 265 of 1 of 1998 Page 11 of 29 P settled at Rs.2 t Rs.275/- from the initially quoted Rs. Rs.300/-, and Sudarsan Naik Naik paid Rs.100/- as advance towards fu rds fuel charges, which the own e owner instructed to be handed over to er to the driver (P.W.9) for pu or purchasing diesel. Each of the two ac wo accused was carrying a bag a bag. After fuelling the vehicle at Kali t Kalinga filling station, P.W.9 d .W.9 drove the car towards Dhenkanal. The al. The deceased, Abhaya Kumar umar Routray, the younger brother of th of the vehicle’s owner also acco o accompanied them. Upon reaching Dhenk Dhenkanal, at the direction of acc of accused Sudarsan, the vehicle was firs as first taken to College Cross Crossing. Sudarsan entered the college ollege premises, returned shortly shortly thereafter, and stated that the pers e person he was looking for wa or was not available. Thereafter, P.W.9 P.W.9 drove the vehicle to vario various locations in and around Dhenkanal nkanal, as per the accused’s direct directions. At one point, they picked up ano up another person from near a cine a cinema hall, visited Sudarsan’s sister’s ho s house near a bridge, and retu d returned to the cinema hall where that th that third person alighted. Subseq Subsequently, the accused asked P.W.9 to dri to drive towards Kamakhyanagar anagar. Initially, he refused, stating the hou he hour was late, but Sudarsan o rsan offered him an additional Rs.100/ -, which he accepted. Befor Before proceeding further, they stopped at ed at a dhaba by the side of NH f NH-42, where they had food. The meal co eal cost Rs.95/-, paid by Sudar Sudarsan. Around 9:00 p.m., the journe journey resumed towards Kamak amakhyanagar. Upon reaching the river br iver bridge, a toll of Rs.7.50 was 0 was paid. After crossing the bridge, bo ge, both accused persons asked h sked him to stop near a village. They got ey got down and spoke privately vately for about half an hour, then returned an rned and resumed the journey. CRA No. 265 of 1 of 1998 Page 12 of 29 P After co fter covering some distance, they asked him ed him to divert into a kuchha ro hha road on the right side. About half a kilo f a kilometre into that road, both a both accused suddenly launched an attack. B ttack. Balaji Sahu attacked P.W.9 .W.9 with a bhujali, inflicting a cut injury o njury on his neck and hand, while , while Sudarsan attacked Abhaya Routray. utray. While still inside the vehi e vehicle, both victims were assaulted. B lted. Balaji then dragged P.W.9 o .W.9 out of the vehicle, threw him on the gr the ground about 8–10 metres aw tres away, and stood on his chest to ensu o ensure he was incapacitated. T ted. Thereafter, both accused drove aw ve away in the vehicle, leaving eaving P.W.9 injured and the deceased lying d lying inside the car. After their d their departure, P.W.9 crawled to a nearby r arby ridge by the side of the road e road and remained there the entire night in ight in a severely injured conditio ndition. Early next morning, some boys fro ys from a nearby village, Machhi achhia, spotted him and informed the vill he villagers. The villagers gave h gave him water and milk, removed his blo his blood-stained pant and shirt, a shirt, and gave him a lungi to wear. The loca e local Sarpanch, Pravash Ranjan anjan Mishra (P.W.8), arrived and wrote do ote down a report as per P.W.9 .W.9’s statement, which he signed with with his thumb impression due n due to injuries on his right hand. The pol he police arrived shortly thereafte ereafter in a trekker, seized his blood-stain ained clothes (marked as M.O s M.O. II and M.O. III), and brought him to im to the District Headquarters H ters Hospital at Dhenkanal, where he was a was admitted. At around 11:00 :00 a.m. on the same day, Akshya Routra outray (P.W.10) and his father vi ther visited him at the hospital. Later that aft afternoon, the police returned urned for his examination, but due to the sev the severity of his injuries, he co he could not make a statement. While hile undergoing treatment, he w , he was informed that Abhaya Routray outray had been murdered. The . The next day, feeling slightly better, h tter, he gave his CRA No. 265 of 1 of 1998 Page 13 of 29 P statement to th to the police and accompanied them to em to show the locations visited visited during the journey with the accused p used persons. His elder brother ther Fakira Behera accompanied him d him during this process. Therea hereafter, he returned to Dhenkanal hospita hospital and later went to Bidanas idanasi to his brother-in-law’s house. P.W.10 W.10 stated that he is the elder brother of th r of the deceased, Abhaya Kumar umar Routray, and owner of the Ambassado assador car ORP- 5036, which wa ich was regularly used as a taxi and stationed ationed at Gandhi Chhak, Choudw houdwar. On 02.09.1994 at around 4:00 4:00 p.m., two young men, age n, aged approximately 22–27 years, approac pproached him to hire the vehicle ehicle for a journey to Dhenkanal. He identif identified the two accused persons ersons – Sudarsan Naik and Balaji Sahu, on on the dock as the individuals duals who engaged the taxi. Each was carry s carrying a bag. After negotiatio otiations, the fare was fixed at Rs.275/-, and , and an advance of Rs.100/- was was paid by the accused. At the Kalinga C linga Cooperation filling station, tion, the driver P.W.9 picked up P.W.10 .W.10’s younger brother, the dec he deceased, to accompany them. When the en the vehicle did not return the fo the following morning, P.W.10, suspecting ecting something amiss, began s gan searching and reached Dhenkanal aro al around 10:00 a.m. There, he re, he heard at the bus stand that a vehicle vehicle had been involved in an in an incident and that an injured person person had been admitted to th to the Government Hospital. Upon rea on reaching the hospital, he fou he found P.W.9 under treatment. P.W.9 inf .9 informed him that Abhaya ha ya had been assaulted by the very person persons who had hired the taxi the taxi the previous day. P.W.10 W.10 then proceeded on a scooter to search search for further clues. While on ile on the road, some persons informed him d him that a dead CRA No. 265 of 1 of 1998 Page 14 of 29 P body was lyin s lying near village Machhia. Upon re on reaching the location, he disc he discovered that it was indeed his brother rother’s body. He returned to Dhe to Dhenkanal and intercepted a police jeep ce jeep en route, informing the po the police about the spot. The police then ac then accompanied him to the locat location and conducted an inquest over the er the dead body. Blood-stained e ined earth and sample earth were collecte llected from the scene, and the d the body was taken to Dhenkanal hospita hospital for post- mortem. P.W.1 P.W.10 also identified the wearing appar apparels of the deceased and co and confirmed having seen the accused per ed persons at the dock. He stated stated that the car was recovered about ten ut ten days after the murder of hi r of his brother. Although he did not inspect nspect the vehicle immediately, he ely, he first saw it on 27.09.1994 when h hen he went to Kamakhyanagar anagar Court for the Test Identification Para n Parade (T.I.P.). He denied the s the suggestion that he had not filed a peti a petition before the Court for t for taking zima of the vehicle and refu d refuted claims regarding any p any photographs of the car being taken taken earlier. He could not recoll recollect whether he had earlier stated in ed in his Section 161 Cr.P.C. stat C. statement that the accused carried only o only one bag. He clarified that ap hat apart from meeting P.W.9 at the hospital ospital, he had no other meetings tings with him. Regarding the T.I.P., he sta he stated that he waited outside tside the jail for two to three minutes be tes before being called in and f and first identified accused Sudarsan Nai n Naik. He also confirmed that t that the witnesses who were part of the T.I. he T.I.P. were not his relatives. 14. Admitte dmittedly, the case of the prosecution is ba n is based on the circumstantial ntial evidence. It is trite law that in n a case of circumstantial e ntial evidence, before reaching a conclusion lusion, the Court CRA No. 265 of 1 of 1998 Page 15 of 29 P is required to e d to examine the evidence on the touchst ouchstone of the decision reporte reported in the matter of Sharad Birdhi Ch i Chand Sarda vs. State of Mah Maharashtra reported in AIR 1984 SC 16 SC 1622 – :3. Before a case against an accused vestin “3:3. Be circumstantial evidence can be said to b on circu lly established the following conditions mu fully est fulfilled as laid down in Hanumant’s v. Sta be fulfill M.P. [1953] SCR 1091. of M.P. ch the th The circumstances 1. The from which ould be nclusion of guilt is to be drawn should b conclusi lly established; fully esta vesting d to be ns must v. State nsistent facts so established should be consisten ccused, the hypothesis of guilt and the accused able on is to say, they should not be explainable cused is other hypothesis except that the accused 2. The with the that is to any othe guilty; 3. The nature circumstances should be of a conclusiv and tendency; nclusive 4. The hypothes They pothesis except the one to be proved; and should exclude every possib possible 5. Ther complete for the c of the ac probabil the accu There must be a chain of evidence s mplete as not to leave any reasonable groun r the conclusion consistent with the innocenc the accused and must show that in all huma obability the accused. nce so ground nocence human by act must have been done These f panchsh circumst corpus d ese five golden principles constitute th nchsheel of the proof of a case based o rcumstantial evidence and in the absence of rpus deliciti. ute the ased on nce of a anumant v. The State of Madhya Prades SCR 1091; Tufail (Alias) Simmi ate of Uttar Pradesh [1969] 3 SCC 198 amgopal v. State of Maharashtra AIR 197 656; and Shivaji Sahabrao Babode & An State of Maharashtra [1973] 2 SCC 79 radesh mmi v. C 198; R 1972 & Anr. C 793 Hanuma [1952] State of Ramgop SC 656 v. State referred d to. CRA No. 265 of 1 of 1998 Page 16 of 29 P 3:4. Th jurisprud proved o evidence 4. The cardinal principle of crimin risprudence is that a case can be said to b oved only when there is certain and explic idence and no pure moral conviction.” criminal d to be explicit 15. In light light of the prosecution evidence, the cir he circumstances relied upon to e n to establish the guilt of the Appellant can nt can be broadly summarised and ed and as follows: (i) Hirin Hiring of the Vehicle (ii) Mov Movement within Dhenkanal (iii) Paus Pause after Brahmani Bridge (iv) Dive Diversion and Assault (v) Drag Dragging of the Driver (vi) Last Last Seen Theory (vii) Reco Recovery of Dead Body (viii) Iden Identification of Accused (ix) Reco Recovery of Vehicle. (x) Seizu Seizure of Weapon (xi) Med Medical Opinion on Cause of Death (xii) Injur Injuries on P.W.9 16. The dep he depositions of the prosecution witnesses, esses, particularly P.W.9 and P.W d P.W.10, meticulously trace the sequence quence of events beginning with with the initial engagement between th een the accused persons and the nd the vehicle owner, leading to the event eventual assault. The narrative c tive commences on the afternoon of 02.09.1 02.09.1994, when the Appellant an llant and co-accused Sudarsan Nayak arrived arrived at Gandhi CRA No. 265 of 1 of 1998 Page 17 of 29 P Chhak, Choudw houdwar, and negotiated with P.W.10, the ow , the owner of the Ambassador car or car (bearing registration No. ORP-5036), 5036), to hire the vehicle for trave r travel to Dhenkanal. P.W.9, who was the d s the driver of the said vehicle, cor le, corroborated this negotiation and stated t tated that the fare was settled at d at ₹275, with ₹100 being paid upfront b ront by Sudarsan for fuel. This i This initial interaction establishes the begi e beginning of a continuous cha s chain of events involving the Appe Appellant. The movement of th t of the vehicle from Choudwar to Dhenka henkanal and the inclusion of th of the deceased, brother of P.W.10, in t , in the journey further indicate dicates that the deceased was in the comp company of the accused persons ersons from the outset. Upon reaching Dhe g Dhenkanal, the accused directed irected the driver to various locations withi within the town, which, as per P per P.W.9, included stops at a college, a c e, a cinema hall, and other local local points, suggesting that the accused we sed were familiar with the area area and had a pre-conceived plan in m in motion. The conduct of the A f the Appellant and Sudarsan, including thei g their search for a boy and prolo prolonged conversations, is not incidental dental but reveals an emerging pat ng pattern of coordinated movement and deli nd deliberation. Further, rther, the events unfold with the decision to ion to proceed to Kamakhyanagar anagar upon offering additional payment to ent to the driver, an aspect consis consistent in the depositions of both P.W.9 a .W.9 and P.W.10. The vehicle hal cle halted at a roadside dhaba, where all p e all parties took food, again rein in reinforcing the sustained proximity and y and interaction between the acc he accused, the deceased, and the driver. Th er. The trajectory of the journey rney resumes with the crossing of Brahma rahmani Bridge, after which the ch the accused disembarked and engaged i aged in a private conversation by ion by the roadside for nearly half an h an hour. These CRA No. 265 of 1 of 1998 Page 18 of 29 P details, captured aptured with clarity and consistency by P.W by P.W.9, reflect the continuation uation of a planned course of conduct. It is s . It is shortly after this pause that that the direction was given to divert into ert into a kuchha road, an action n ction not typical of passengers without a fixe t a fixed purpose. It is here, after after entering deeper into the isolated stret d stretch, that the incident takes a akes a violent turn. The Appellant and co d co-accused, as narrated by P.W by P.W.9, simultaneously assaulted both th oth the deceased and the driver driver with bhujalis while inside the ve the vehicle. The Appellant then then physically removed P.W.9 from the c the car, dragged him to a distanc distance, and stood over his chest, acts whic s which, although not fatal in outc n outcome for P.W.9, indicate an intent to e nt to eliminate all witnesses. Moreove oreover, the status of P.W.9 as an injured wi red witness lends added weight to ight to his testimony, as the law accords a hig s a higher degree of credibility to lity to such witnesses who have suffered bod ed bodily harm in the same transa transaction. His consistent version of events events, delivered under oath and th and withstood through rigorous cross- -examination, reflects not on ot only clarity of memory but also a also absence of embellishment. ment. His presence at the scene and th and the injuries suffered by him y him were medically corroborated, which f hich fortifies his credibility and r and rules out the possibility of false impli implication. The sustained proxim proximity he shared with the Appellant and nt and co-accused from the begin beginning of the journey till the point point of attack reinforces the au the authenticity of his account. These ac ese accounts, rendered without material co rial contradiction, form a continuo ntinuous narrative that affirms the presence a ence and conduct CRA No. 265 of 1 of 1998 Page 19 of 29 P of the Appellan pellant from the inception of the incident, ident, setting the stage for further further analysis of the surrounding circumstan umstances. 17. ne of One of the other circumstances appearin ppearing in the prosecution cas n case is with regard to the last-seen the en theory. While appreciating the ng the prosecution case, in this regard, refe d, reference may be made to the d to the decision of the Hon’ble Apex Court in the matter of Satpal vs. S s. State of Haryana reported in (2018) 6 018) 6SCC 610, para 6, as under under: – little “Crimin judicial reconsid invocatio circumst may be found co when it such as seen wit corpse the accu 106 of circumst been tak explanat abscond corrobor form of of circum for guilt possible can be b or break the bene Each cas its own f hora of riminal jurisprudence and the plethora o for m room fo leave dicial precedents les for consideration of the basic principles fo facet of vocation of the last seen theory as a facet o tated, it rcumstantial evidence. Succinctly stated, itself to ay be a weak kind of evidence by itself t rly. But und conviction upon the same singularly. Bu stances hen it is coupled with other circumstance as last ch as the time when the deceased was la y of the en with the accused and the recovery of th time, in very close proximity of tim rpse being Section e accused owes an explanation under Sectio to the 6 of the Evidence Act with regard to th y have rcumstances under which death may hav fers no en taken place. If the accused offers n planation, or furnishes a wrong explanation anation, there is sconds, motive is established and there ia in the orative evidence available inter alia in th a chain rm of recovery or otherwise forming a chai ference circumstances leading to the only inferenc ith any r guilt of the accused, incompatible with an nviction ssible hypothesis of innocence, convictio y doubt n be based on the same. If there be any doub stance, break in the link of chain of circumstanc e benefit of doubt must go to the accused ccused. ined on ch case will therefore have to be examined o own facts for invocation of the doctrine” CRA No. 265 of 1 of 1998 Page 20 of 29 P 18. In the b the backdrop of the legal position enuncia nunciated above, the facts of the p f the present case squarely attract the applic application of the last seen theory theory. The deposition of P.W.9, who is n o is not only the driver of the ill the ill-fated vehicle but also an injured eyewi eyewitness to the occurrence, stan e, stands as a pillar of credibility. His testim testimony clearly establishes that s that the deceased was last seen alive in th e in the exclusive company of the of the Appellant and co-accused Sudarsan, f rsan, following a prolonged journ journey which involved multiple halts, sha lts, shared meals, and continuous nuous interaction. The sequence of events le ents leading up to the assault has b t has been vividly narrated, including the div the diversion into a kuchha road, road, the sudden attack on both occupants upants inside the vehicle, and the nd the deliberate act of dragging P.W.9 fr .9 from the car and leaving him ng him for dead. That the Appellant and nt and Sudarsan thereafter drove drove away with the deceased, who was was then in an injured state, un unequivocally places them in the closes closest proximity of time and c and circumstance to the eventual recove recovery of the deceased’s dead s dead body on the following morning. Si ng. Significantly, no explanation nation has been offered by the Appell ppellant in his statement, or , or otherwise. The silence in the fac e face of such incriminating pr ting proximity becomes all the more telling, lling, particularly when coupled upled with the recovery of the vehicle ehicle from the Appellant and nd co-accused only days later. In such n such a factual setting, the presu e presumption under Section 106 of the Evid e Evidence Act is clearly attracted tracted, shifting the onus on the Appellant to lant to explain the circumstances u nces under which the deceased met his end end, a burden he has failed to disc to discharge. CRA No. 265 of 1 of 1998 Page 21 of 29 P 19. Furtherm rthermore, the sequence of recovery form forms a crucial link in the chain chain of circumstances pointing toward the rd the complicity of the Appellan pellant. The dead body of the deceased was d was discovered the very next m next morning in a bushy area close to the o the spot where P.W.9 was as as assaulted and abandoned, affirming rming the close proximity of tim of time and place between the last seen occu n occurrence and the death. The i The identification of the body by P.W.10, w .10, who is none other than the b the brother of the deceased, rules out any t any doubt with regard to the id the identity of the victim. Equally signifi significant is the recovery of the of the Ambassador vehicle (bearing No. No. ORP-5036) from the possess ossession of the Appellant and co-accused S used Sudarsan on 07.09.1994 at K 4 at Kharagpur Bus Stand, days after the o r the occurrence, which further im ther implicates them. Notably, both were fou ere found present at the spot and w t and were apprehended while obstructing po ting police action, indicating consc consciousness of guilt. Adding to this in his incriminating sequence is the is the seizure of the weapon of offence ffence, a bhujali annexed as M. s M.O.I, which was recovered at the i the instance of accused Sudarsa udarsan while in police custody. The said w said weapon was later medically o ically opined to be capable of causing the inj the injuries found on both the dec he deceased and P.W.9. The cumulative effe ve effect of these recoveries, eac s, each under independently admissible under law and properly proved roved, not only corroborates the ocular versi r version but also reinforces the p the prosecution case with substantial cir ial circumstantial evidence that is that is cogent and consistent. While each ci ach circumstance may appear dist ar distinct, their convergence forms an unbr n unbroken chain pointing unmista nmistakably towards the authorship of the cr f the crime. CRA No. 265 of 1 of 1998 Page 22 of 29 P 20. Subsequ bsequently, considerable emphasis has been s been laid by the defence on the n the alleged infirmities in the conduct o duct of the Test Identification Pa tion Parade (TIP), particularly the delay ther y therein and the purported expos exposure of photographs of the Appellant p llant prior to such identification. H tion. However, before delving into the lega e legal effect of these contentio tentions, it is essential to consider the r the established position of law f law governing TIP and the evidentiary v tiary value of in- Court identifica ntification. The Hon’ble Apex Court in the in the matter of Kunjumon @ U @ Unni Vs. State of Kerala reported in ed in AIROnline 2012 SC 631, ha , has made out the following – particularly able delay) gh v. State ering it to udhsen v. 128 it has n accused”. been noted essed by a t can safely 21. The with refe has been of J & “proper State of been pitc However “when f particula rely, with 22. A m subject i Madhya is linked Evidence in the ab the ident for the 23. Sim Madhya discussio … the te and is ve known b corrobor . The advisability of holding a TIP (particu th reference to avoidable or unreasonable d s been emphasized in Rameshwar Singh v. J & K, (1971) 2 SCC 715 by tethering roper administration of justice”. In Budhse ate of Madhya Pradesh, (1970) 2 SCC 128 en pitched to “the life and liberty of an accu wever, in Budhsen an exception has been n hen for example, the Court is impressed rticular witness, on whose testimony it can s ly, without such or other corroboration.” . A more useful and elaborate discussion o bject is to be found in Malkhansingh v. Sta adhya Pradesh, (2003) 5 SCC 746 where the linked to the requirement of Section 9 o idence Act, 1872 and coupled with the caution the absence of a TIP, the weight to be attach e identification of the accused in Court is a m r the Courts of fact to decide. . Similarly, in Vijay @ Chinee v. Stat adhya Pradesh, (2010) 8 SCC 191 aft cussion on the subject, it was concluded that the test identification is a part of the investig d is very useful in a case where the accused ar own beforehand to the witnesses. It is used on rroborate the evidence recorded in the . State of after a ed that, “… vestigation sed are not sed only to Court. sion on the v. State of ere the TIP n 9 of the caution that attached to is a matter CRA No. 265 of 1 of 1998 Page 23 of 29 P The actual sses in the nce to State 00) 1 SCC prudence s where the plainant.” erefore, it is not substantive evidence. The a idence is what is given by the witnesses in ” It was noted in Vijay with reference to Himachal Pradesh v. Lekh Raj, (2000) 1 that the holding of a TIP is “a rule of prud ich is required to be followed in cases wher cused is not known to the witness or complain Therefor evidence Court.” of Hima 247 that which is accused …… ng with the In the present case, we are not dealing wit 26. In th are dealing idence of any ordinary witness – we are de evidence as directly th a victim of a crime, someone who was dir with a v e appellant the receiving end of the actions of the appe at the re threat and d who came face to face with the threat and who e of such a timidation by the appellant. The evidence of s intimidat pinion, on a ctim of a crime must be placed, in our opinion victim of credibility mewhat higher pedestal, in terms of the credi somewha her witness. ached to it, than the evidence of any other wit attached ift in focus e need to seriously consider a partial shift in We need y including “proper administration of justice” by inclu in the “ cused” but t only the “life and liberty of an accused not only of victims. ues of victimology and the treatment of vic issues of the and and eories Theories ministration of criminal justice are fast develo developing administ ments. d we need to keep up with these developments and we n concerning criminal law It is fur is further held in the case of Prakash V h Vs. State of Karnataka repo reported in (2014) 12 SCC 133, as under – the investigating 30. An i . An identification parade is not mandatory can it be n it be claimed by the suspect as matter of ri e purpose of pretrial identification evidence The purp that that sure assure vestigation is going on in the right direction investiga provide corroboration of the evidence t to provi ven by the witness or victim later in Court given by trial.3 If the suspect is a complete stranger t itness or victim, then an identification para witness datory1 nor er of right.2 idence is to the rection and nce to be ourt at the nger to the n parade is agency 1 Ravi Kapur v. Stat 2 R. Shaji v. State of 3 Rameshwar Singh