The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRA No.126 of 2000 An appeal under section 374(2) Cr.P.C. from the judgment and order dated 11.05.2000 passed by the Addl. Sessions Judge, Gajapati, Paralakhemundi in Sessions Case No.14 of 1998/ Sessions Case No.132 of 1998 (GDC). ---------------------------- 1. Lingu @ Lingaraj Karjee @ Bhuya 2. Salli Sabar (Dead) ....... Appellants -Versus- State of Odisha ....... Respondent For Appellants: - Mr. Malaya Kumar Swain Amicus Curiae For Respondent: - Mr. Partha Sarathi Nayak Addl. Govt. Advocate ----------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K.SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 18.09.2025 --------------------------------------------------------------------------------------------------- By the Bench: The appellant no.1 Lingu @ Lingaraj Karjee @ Bhuya and the appellant no.2 Salli Sabar faced trial in the Court of learned Additional Sessions Judge, Gajapati, Paralakhemundi in CRA No.126 of 2000 Page 1 of 37 Sessions Case No.14 of 1998/Sessions Case No.132 of 1998 (GDC) for commission of offences punishable under sections 302/34 and 506/34 of the Indian Penal Code (hereinafter the ‘I.P.C.’) on the accusation that on 19th November, 1997 at about 5.00 p.m. at village Rangada, Purna Sahi Jungle, they committed murder of Dumbai Sabar (hereinafter ‘deceased’) in furtherance of their common intention and for having extended threat to P.W.1 (Somanath Sabar), the son of the deceased, on the very night to cause death thereby caused alarm to him directing to dispose of the dead body of the deceased and not to report the matter before the police station in furtherance of their common intention. The learned trial Court vide impugned judgment and order dated 11.05.2000 found the appellants guilty under sections 302/506/34 of the I.P.C. and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.15,000/- (rupees fifteen thousand) each, in default, to undergo R.I. for two years each under section 302/34 of the I.P.C. However, no separate sentence was awarded for their conviction under section 506 of the I.P.C. During the pendency of the appeal, the appellant no.2 Salli Sabar died. As no application was filed to continue the CRA No.126 of 2000 Page 2 of 37 Appeal against him by the near relatives, the Appeal stood abated against him vide order dated 14.08.2025. The Appeal herein is therefore confined to Appellant Lingu @ Lingaraj Karjee @ Bhuya. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) (Ext.1) lodged by Somanath Sabar (P.W.1) before P.W.8, Officer in-charge of Rayagada police station on 23.11.1997, in short, is that on 19.11.1997 in the evening hours at about 05.00 p.m., while his father (the deceased) had been to collect date palm sap and he had been to attend call of nature to Puruna Sahi Jungle, he heard screaming sound of his deceased father who was shouting for help. P.W.1 rushed to the place from where the sound was coming and found both the appellants were chasing and assaulting the deceased on his neck by means of Kati (Katari) for which the deceased had sustained injuries and he fell down under a tree. Seeing P.W.1 at the spot, both the appellants fled away. P.W.1 found injuries on the neck of the deceased. He rushed to his uncle Shyam Sabar (P.W.5) and called him to the spot and both of them came to the spot of occurrence and shifted the deceased in an injured condition to the house. After reaching the house, the deceased CRA No.126 of 2000 Page 3 of 37 disclosed before his family members that both the appellants hacked him and caused injuries to him. It is stated in the F.I.R. that the deceased could not be shifted to the hospital and at about 10.00 p.m. on the occurrence night, he succumbed to the injuries. After some time, both the appellants came to the house of P.W.1 and threatened him not to report the matter before the police and further threatened to dispose of the dead body in the early morning or else he would face dire consequences. Accordingly, P.W.1 assured the appellants to cremate the dead body and with the help of the co-villagers, the dead body was cremated in the morning on the next day of occurrence. The appellants guarded P.W.1 for which he could not proceed to the police station. However, on the pretext of performing obsequies ceremony of his deceased-father, P.W.1 came to the house of his maternal uncle, Sarathi Sabar (P.W.2) and both of them proceeded to Rayagada Police station to report the incident. The report was scribed by P.W.2 on the narration of P.W.1 and it was presented before the Officer-in-Charge of Rayagada police station who treated the same as F.I.R. and registered Rayagada P.S. Case No.41 dated 23.11.1997 under sections 302/506/34 of the I.P.C. against both the appellants. CRA No.126 of 2000 Page 4 of 37 P.W.8 Abhimanyu Naik, Officer-in-Charge of Rayagada police station, after registration of the case, took up investigation. In course of the investigation, he examined the witnesses, visited the spot and seized one old torn green colour lungi stained with blood, one chadar on production by Tilaki Sabar (P.W.4), the wife of the deceased as per seizure list Ext.3. He also seized blood-stained earth, sample earth, branches of a tree stained with blood, one gudaku daba as per seizure list Ext.4. He seized some bone pieces from the burial ground where the dead body of the deceased was cremated as per seizure list Ext.5. On 24.11.1997, the I.O. arrested both the appellants and forwarded them to Court on 25.11.1997. He also seized the wearing apparels of the Appellants as per seizure list Ext.6 and dispatched the seized articles to R.S.F.L., Berhampur for chemical examination. He also sent the wearing apparels of the deceased to the R.S.F.L., Berhampur through Court and on his transfer, he handed over the charge of investigation to P.W.9 S. Dharma Rao, his successor on 08.01.1998. P.W.9 after taking over the charge of investigation, examined some more witnesses and prayed before the learned S.D.J.M., Paralakhemundi for recording of the statements of four witnesses under section 164 of the Cr.P.C. He also sent the bone pieces to the S.F.S.L., CRA No.126 of 2000 Page 5 of 37 Bhubaneswar and after completion of the investigation, submitted charge sheet against the appellants on 15.02.1998 under sections 302/506/34 of the I.P.C. Framing of charges: 3. After submission of charge sheet, the case was committed to the Court of Session upon compliance of the formalities. The learned trial Court framed charges against both the appellants as aforesaid since the appellants having denied the charges, pleaded not guilty and claimed to be tried. Accordingly, the sessions trial procedure was resorted to prosecute them in order to establish their guilt. Prosecution Witnesses, Exhibits & Material Objects: 4. The prosecution, in order to prove its case, examined as many as ten witnesses. P.W.1 Somnath Sabar is the informant and sole eye witness to the occurrence who fully supported the prosecution case. In his evidence on oath, he stated that he saw the appellants assaulting his father by inflicting kati blow on his neck. He further stated that when he arrived near the spot, the appellants fled away and the deceased fell under the tree being injured; that he called his uncle Shyam Sabar (P.W.5) and then he along with his uncle (P.W.5) brought the deceased to their CRA No.126 of 2000 Page 6 of 37 house. After reaching the house, the deceased volunteered before the family members that both the appellants hacked him and in the same night at about 10 p.m., the deceased breathed his last. He further stated that in the early morning, both the appellants came to their house and told him to dispose of the dead body immediately or else they would kill the family of P.W.1 and both the appellants also threatened P.W.1 not to report the matter at the police station. Out of fear, P.W.1 did not report the occurrence before the police station. Later he along with his uncle Sarathi Sabar (P.W.2) in the guise of observing the obsequies ceremony came to the police station and reported the matter in writing being scribed by P.W.2 vide Ext.1. P.W.2 Sarathi Sabar stated that P.W.1 came to him and told that his father (deceased) was murdered by the appellants but he has not reported the occurrence in the police station. He suggested to P.W.1 to report the matter in the police station and accordingly, on the narration of P.W.1, P.W.2 scribed the report. P.W.3 Kalila Sabar stated that when he returned to his house in the evening hours on the date of occurrence, being informed by P.W.1, he came to the house of P.W.1 and saw the deceased was lying with cut injuries on his right side neck. CRA No.126 of 2000 Page 7 of 37 P.W.4 Tilaki Sabar is the widow of the deceased, who stated that P.W.1 and P.W.5 brought her injured husband to the house who was alive and that her husband told before her that the appellants assaulted him. She also noticed cut injury on the neck of her deceased husband who expired in that night at about 10 p.m. P.W.5 Syama Sabara in his evidence on oath stated that P.W.1 came and told him about the occurrence and he along with P.W.1 went to the forest and brought the deceased in an injured condition with injuries on the right-side neck. He further stated that when the deceased was brought home, he was alive and at about 10 p.m. in the night, the deceased expired. P.W.6 Suki Sabar stated that on hearing the occurrence, she came to the house of the deceased and found cut injuries on right side neck. P.W.7 Govinda Sabara stated that he knew nothing about the occurrence but stated to have seen cut injuries on the neck of the deceased. P.W.8 Abhimanyu Naik was the O.I.C. attached to
Legal Reasoning
Rayagada police station, who is the first Investigating Officer of the case. He made over charge of investigation to his successor S.I. S. Dharma Rao (P.W.9) on 08.01.1998. CRA No.126 of 2000 Page 8 of 37 P.W.9 S. Dharma Rao was the Officer in-charge of Rayagada police station, who took over the charge of investigation of the case from P.W.8 and submitted charge sheet against the appellants. P.W.10 Dr. Nayan Kishore Mohanty who was posted as the Associate Prof., F.M.T., M.K.C.G. Medical College, Berhampur stated on oath that on police requisition, he endorsed the seized bone pieces and sent to Dr. P.C. Sahu, Lecturer, F.M.T., M.K.C.G. Medical College, Berhampur to take up examination of the same and report the matter and he received the opinion report issued by Dr. P.C. Sahu vide Ext.9 (with objection by the defence). The prosecution proved nine documents. Ext.1 is the written report, Ext.2 is the spot map, Exts.3, 4 and 5 are the seizure lists, Ext.6 is the seizure list of wearing apparels of appellants, Ext.7 is the chemical examination report, Ext.8 is the requisition and Ext.9 is the opinion report of Dr. P.C. Sahu. The prosecution also proved four material objects. M.O.I is the brown colour lungi, M.O.II is the blue colour lungi, M.O.III is the Gudaku daba and M.O.IV is the piece of branch of a tree. CRA No.126 of 2000 Page 9 of 37 Defence Plea: 5. The defence plea of both the appellants was one of denial. Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well documentary evidence on record, came to hold that injuries on the deceased on the neck was noticed by P.Ws.1, 5, 6 and 7 and from the available evidence on record, there is no suspicion in any manner that the death of the deceased had been caused due to assault on being made by the appellants by means of kati. The learned trial Court also accepted the evidence of P.W.4 and P.W.6 who stated about the oral dying declaration of the deceased coupled with the direct evidence of P.W.1. After assessing the evidence of P.W.1, the dying declaration and the injuries noticed by the witnesses on the right-side neck of the deceased, the learned trial Court arrived at the conclusion that the appellants have committed murder. Though, the learned defence counsel raised contentions regarding delay in lodging the first information report, but the learned trial Court after assessing the evidence on record came to hold that the delay in lodging the F.I.R. stood the test of authenticity as has been sufficiently explained and the prosecution has proved the point CRA No.126 of 2000 Page 10 of 37 by cogent evidence. The learned trial Court further held that the evidence of P.W.1 coupled with other circumstances, proved that the appellants are the authors of the crime and they have committed the murder of the deceased by giving kati blows on his neck and accordingly, found both the appellants guilty under sections 302/506/34 of the I.P.C. Contentions of the Parties: 7.
Legal Reasoning
Mr. Malaya Kumar Swain, learned counsel appearing for the appellant contended that P.W.1 is none other than the son of the deceased and he is a highly interested witness and his solitary evidence as an eye witness to the occurrence should not be accepted to hold the appellant guilty. It is further argued that the conduct of P.W.1 is very suspicious inasmuch as even though the deceased had sustained injuries on the vital part of the body like neck as per his version, he neither shifted the deceased to the hospital nor lodged any report immediately in the police station and it was lodged four days after the occurrence. It is further argued that when numbers of villagers were available, merely because the appellants gave out threat to P.W.1 to
Decision
cremate the dead body, he would not have disposed of the dead body and by disposing the dead body, the real cause of death of the deceased could not be ascertained. It is also argued that CRA No.126 of 2000 Page 11 of 37 dying declaration stated to have been made before P.Ws.1, 4 & 6 is very much suspicious and when cut injuries were stated to have been inflicted on the vital part of the body like neck with kati, it sounds difficult to accept that the deceased would be in a position to make declaration as to the cause of injuries. He further argued that though according to P.W.1, the weapon of offence was kati, but the same was not seized and that there is no material available on record as to why the two appellants would assault the deceased on the date of occurrence particularly when there was good relationship between them. It is further argued that there is no evidence to as to what transpired between the appellants and the deceased prior to the assault to ascribe a motive, the death was not instantaneous and since the deceased could not be shifted to the hospital in view of the time when the assault took place for timely medical intervention and death occurred, even if it is held that the appellant assaulted the deceased, the conviction under section 302 of the I.P.C. is not justified and therefore, the conviction should be altered to one under section 304 Part-I of the I.P.C. Mr. Partha Sarathi Nayak, learned Additional Government Advocate, on the other hand, supported the impugned judgment and argued that merely because P.W.1 is CRA No.126 of 2000 Page 12 of 37 related to the deceased, the same cannot be a ground to discard his evidence particularly when he has vividly narrated as to how the occurrence had taken place and how the deceased was shifted from the place of assault to the house and the manner and circumstance in making the dying declaration and when the deceased died and how the appellants threatened him with dire consequences for which he could not lodge the F.I.R. Nothing has been brought out in the cross-examination to disbelieve the evidence of P.W.1 as an eye witness to the occurrence and therefore, the learned trial Court has rightly placed reliance on the evidence of P.W.1. It is further argued that the evidence of P.W.1 that the assault was made on the neck of the deceased by a kati, is getting corroboration from the evidence of P.Ws.3, 4, 5, 6 & 7 who have stated to have seen the injuries on the neck of the deceased. It is further argued that in the cross-examination, P.W.1 has stated as to why steps could not be taken to shift the deceased to the hospital immediately after the occurrence and the learned trial Court has also accepted the same. He further argued that on account of threat given by the appellants, not only the dead body was disposed of, but the first information report could not be lodged immediately after the occurrence and the learned trial Court has rightly held that the prosecution has CRA No.126 of 2000 Page 13 of 37 satisfactorily explained the delay in lodging the first information report. He argued that the dying declaration made before P.Ws.1, 4 & 6 are consistent and nothing has been brought out on record in regard that the deceased was not in a position to speak anything. He further argued that the dead body was disposed of in haste upon the threats made by the appellants and consequently, post-mortem could not be held. The same cannot be taken as a ground to disbelieve that homicidal death of the deceased had taken place. In view of the consistent evidence available on record, reliance has been placed on the decision rendered by the Hon’ble Supreme Court in the case of Prithpal Singh and Others -Vrs.- State of Punjab and another reported in 2012 (1) Supreme Court Cases 10 to substantiate the argument that even though corpus delicti was not found and it was destroyed, the same cannot be a ground to disbelieve the prosecution case. Learned counsel for the State further argued that since the assault was made on the vital part of the body like neck and the evidence of the witnesses indicates that there were two blows on the neck, therefore, the learned trial Court has rightly found the appellants guilty under section 302 of the I.P.C. CRA No.126 of 2000 Page 14 of 37 Whether the solitary evidence of P.W.1 can be acted upon: 8. Adverting to the contention raised by the learned counsel for the respective parties, there is no dispute that the prosecution has examined P.W.1, who is none else than the son of the deceased as the sole eye witness to the occurrence. Law is well settled that the evidence of a solitary witness can be accepted and conviction can be sustained on such testimony if it is found to be clear, cogent, consistent, trustworthy, wholly reliable and above board. It is also the settled position of law that merely because a witness is related to the deceased, the same cannot be a ground to discard his evidence rather the related witnesses are not likely to implicate someone falsely leaving the real assailant. No particular number of witnesses is required for proving a certain fact. The time honoured principle is that it is the quality and not the quantity of the witnesses that matters. Evidence is weighed and not counted. In other words, there is no legal impediment in convicting a person on the testimony of a single witness. This is the logic behind section 134 of the Indian Evidence Act, 1872 (section 139 of Bharatiya Sakshya Adhiniyam). However, where the single eyewitness is not found to be a wholly reliable witness, CRA No.126 of 2000 Page 15 of 37 in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness, his testimony is discarded in toto and no amount of corroboration can cure that defect. In the present case, P.W.1 has specifically stated that his deceased father had gone to the Purna Sahi Jungle to collect date palm juice and he had also gone there to attend to the call of nature. He heard his father shouting, "Mote Sahajya Kara, Kie Achha" (Help me, is somebody there?). Hearing such cry for help, he rushed towards his father and saw both the appellants were chasing and assaulting him with a kati (a sharp weapon) on the neck. He further stated that as he approached, both the appellants fled away from the scene. He found his father was lying on the ground with bleeding injury. He immediately called his uncle Shyam Sabar (P.W.5) and both of them brought his injured father back home. Upon reaching the house, the deceased informed his wife (P.W.4) and other family members CRA No.126 of 2000 Page 16 of 37 that both the appellants had attacked him and he clearly identified the appellants as his assailants. P.W.1 further stated that the deceased succumbed to his injuries at about 10:00 p.m. on the occurrence night. The next morning, while the family was mourning the death of the deceased, both the appellants came to their house and threatened them, instructed them to dispose of the dead body immediately, or else they would kill the other family members. The appellants also warned the family not to report the incident to the police. Out of fear, the family complied and disposed of the body accordingly. P.W.1 has specifically stated that after the occurrence, out of fear, they could not report the occurrence before the police station as the appellant kept guarding. However, on the plea of performing the obsequies ceremony, he came to the house of his uncle, Sarathi Sabar (P.W.2) and thereafter came to the police station with P.W.2 and reported the matter. In the cross-examination, the defence counsel has elicited from P.W.1 that it was taking about five minutes to reach the bus stop of Lanjiapadar from the village and that main road leads to Rayagada to one side and to Paralakhemundi to the CRA No.126 of 2000 Page 17 of 37 other side and there were buses and tractors plying from Rayagada to Paralakhemundi. It is the contention of the learned counsel for the appellant that if bus services were available and the bus stop was nearer to the village, P.W.1 and his family members could have shifted the deceased immediately to the hospital and no valid reason has been assigned for non-shifting of the deceased to the hospital. We are not able to accept such submission as there is no evidence that the bus service was available at that point of time when the deceased sustained injury and was brought to the house from the spot by P.W.1 and P.W.5. Rather, it has been elicited in the cross-examination of P.W.1 that on that day, he could not go to the police station as it was already evening and they were required to cross the hills in the night. P.W.1 has specifically stated that it was evening time and there was slight darkness prevailing at the time when they brought the deceased. We cannot shut our eyes to the realities of tribal life in an interior village in the district of Raygada that too in the year 1997. Winter must have set in as it was mid-November. It would have been extremely difficult to carry an injured in a critical condition in a winter night crossing the hills. There must have been several practical difficulties for P.W.1 and his family for CRA No.126 of 2000 Page 18 of 37 carrying the deceased to the hospital. Therefore, the submission of the learned counsel for the appellant that no plausible explanation has been given by prosecution as to why the deceased was not shifted to the hospital for medical treatment, has no substance. Learned counsel for the appellant argued that since numbers of persons were available in the village, the threat which was stated to have been given by the appellants would not have been a deterring factor on the part of P.W.1 not to report the matter before the police station and to dispose of the dead body. However, evidence of P.W.1 is very clear that in the morning, the appellants came to his house and told him to dispose of the dead body immediately or else they would kill him and they further threatened not to report the matter at the police station and that out of fear, they disposed of the dead body of the deceased. It cannot be lost sight of the fact that it was a tribal area and how a person would react after seeing the deadly assault on his father and to the threat given by the appellants would differ from person to person. Therefore, it cannot be said that conduct on the part of P.W.1 in the given circumstances in the factual scenario in not reporting the matter to the police immediately and disposing of the dead body, was so CRA No.126 of 2000 Page 19 of 37 unnatural that no implicit reliance can be placed on it. Nothing further has been elicited in the cross-examination to disbelieve the evidence of P.W.1. Thus, we have no hesitation in placing intrinsic reliance on the evidence of P.W.1. Moreover, it appears that the evidence of P.W.1 as eye witness to the occurrence is getting absolute corroboration from the evidence of P.Ws.4 & 6, who have stated about the dying declaration of the deceased. P.W.4 is none else than the widow of the deceased. She stated that on the date of occurrence when her husband was brought to the house by Somnath (P.W.1) and Shayma (P.W.5), her husband was alive at that time and he told that the appellants assaulted him. She further stated to have noticed cut injuries on the neck of the deceased. She also stated that in the same night at about 10:00 p.m., the deceased died. In the cross-examination, she reiterated her versions saying that the deceased was brought to the house at about 5:00 p.m. from the forest and she was present in the house when the deceased was brought and kept in the house on the floor which was stained with blood and she further stated that there was cut injury on the neck of the deceased and the head was not severed from the CRA No.126 of 2000 Page 20 of 37 neck but it was bent and the deceased could not tell anything more. The evidence of P.W.6, who is the elder brother of the deceased is that hearing about the occurrence, he came to the house of the deceased, found two cut injuries on the right side neck and on being asked as to what had happened, the deceased told that the appellants hacked him. In the cross- examination, he has stated that on hearing about his brother (deceased), he came to the house of his brother and found that the family members were crying in house. Specific suggestion has been given to P.W.6 that the deceased had not told him that the appellants had hacked him, but he denied such suggestion. Nothing further has been elicited from the cross-examination of P.W.6. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances CRA No.126 of 2000 Page 21 of 37 and its weight is determined by reference to the principle governing the weighing of evidence. To the rule of inadmissibility of hearsay evidence, oral dying declaration is an exception. The dying declaration in this case is reliable, cogent and explains the events that had happened in their normal course which was not only a mere possibility but leaves no doubt that such events actually happened as established by the prosecution. Therefore, the oral evidence of P.W.1 to have seen the direct assault on the deceased is getting corroboration from the dying declaration which is stated to have been made not only before P.W.1 but also before P.Ws.4 & 6. Though, the evidence of these two witnesses i.e. P.Ws.4 & 6 were also challenged on the ground of their relationship, but we are of the view that merely because they are related as the wife and the elder brother of the deceased, when their evidence inspires confidence of this Court, the same cannot be rejected. Delay in lodging the F.I.R.: 9. The delay in lodging the first information report was also argued by the learned counsel for the appellant but P.W.1 has very categorically stated not only in the first information report itself but also in his evidence as to why the report could CRA No.126 of 2000 Page 22 of 37 not be lodged earlier on account of threat and also fear and he specifically stated not to have proceeded to the police station immediately and he went to the house of his maternal uncle, Sarathi Sabar (P.W.2) and with him, he went to the police station after four days of the occurrence and as per his oral version, P.W.2 reduced the report into writing and it was presented in the police station and treated as F.I.R. The learned trial Court placed reliance in the case of Apren Joseph -Vrs.- State of Kerala reported in A.I.R. 1973 Supreme Court 1, wherein the Hon’ble Supreme Court has held as follows: “That delay in lodging the F.I.R. is not always fatal to the prosecution case, it only gives rise to suspicion which put the court on guard to look to possible motive and explain for the delay.” The learned trial Court has rightly assessed the timing of the occurrence, the situation of the village, the distance of the police station from the village which as per the formal F.I.R. was 20 kilometers away. We are of the view that so long as there is cogent and acceptable explanation offered for the delay in lodging F.I.R., which would obviously depend upon facts and CRA No.126 of 2000 Page 23 of 37 circumstances of each case, the prosecution case cannot be viewed with suspicion on account of such delay. In case of extraordinary delay in lodging F.I.R. and failure of the prosecution to explain the delay, the F.I.R. can be viewed with suspicion as delay sometimes affords opportunity to the informant to make deliberation, embellishment and fabrication and in absence of satisfactory explanation, the delay would be treated as fatal to the prosecution case. Therefore, in the view of the evidence of P.W.1, the surrounding circumstances under which the F.I.R. was lodged on 23.11.1997, we are of the view that the learned trial Court is quite justified in holding that the delay in lodging F.I.R. has been sufficiently explained by the prosecution and the same is beyond reproach. Non-recovery of weapon of offence: 10. The contention of the learned counsel for the Appellant that the weapon of offence could not be recovered is not a ground to disbelieve the prosecution case. The learned counsel for the State has placed reliance in the case of Gobardhan and another -Vrs.- State of Chhattisgarh reported in 2025 INSC 47, Rakesh -Vrs.- CRA No.126 of 2000 Page 24 of 37 State of Uttar Pradesh reported in A.I.R. 2021 Supreme Court 3233, wherein the Hon’ble Supreme Court has categorically held that recovery of a weapon of offence is not a sine qua non for holding a person guilty particularly when there are direct evidence in the case. It may so happen that in a particular case, the accused persons may dispose of the weapon of offence, threw it in the stream of water and if in such a situation, the insistence would be made as to why the recovery of weapon has not been made and the prosecution case is to be disbelieved on that ground then no prosecution can succeed particularly when the evidence relating to the assault on the deceased is available. Therefore, the submission of the learned counsel for the appellant on this score is discarded being not acceptable. Corpus Delicti destroyed by cremation: 11. It appears from the evidence on record that the dead body of the deceased was disposed of due to threat given by the appellants and the corpus delicti was destroyed by cremation. We are of the humble view that a conviction for an offence does not necessarily depend upon the corpus delicti being found. In the absence of the corpus delicti, there must be CRA No.126 of 2000 Page 25 of 37 direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused is the person who had committed the murder. If the prosecution is successful in providing clinching evidence and cogent and satisfactory proof of the deceased having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. When the body of the person said to have been murdered is not forthcoming, the prosecution is required to adduce strongest possible evidence as to the fact of the murder. If it is established clearly that a particular person was intentionally killed, in absence of discovery or production of the body of the murdered person, a conviction can be sustained. Therefore, before convicting a person of the charge of murder, the Court must be satisfied that the person alleged to have been murdered is actually dead. The fact of death should be proved by such circumstances, in the absence of a corpus delicti, to render the commission of the crime morally certain. The learned State counsel placed reliance in the case of Prithpal Singh (supra), wherein it has been held as follows: “28. Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified. In other words, CRA No.126 of 2000 Page 26 of 37 the conviction for the offence of murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components – death as result, and criminal agency of another as the means. Where there is a direct proof of one the other may be established by the circumstantial evidence.” In the case in hand, when the direct evidence of P.W.1 coupled with the other evidence as available in the form of dying declaration and further the witnesses have specifically stated on which part of the body, the injuries were inflicted being cogent and sacrosanct, merely because the dead body was cremated on account of threat given by the appellant, cannot be a ground to disbelieve the prosecution case. Therefore, on the basis of the eye witness account of P.W.1, the evidence of dying declaration which has been deposed to by the P.Ws.4 and 6, the injuries on the neck as noticed by P.Ws. 3, 4, 5, 6 & 7, we are of the view that the learned trial Court has rightly held that the appellant is the author of the homicidal death of the deceased. Absence of motive: 12. The learned counsel for the appellant placed reliance on the evidence of P.W.1 and P.W.4 and submitted that there was good relationship between the appellants and the deceased CRA No.126 of 2000 Page 27 of 37 and therefore, the prosecution has failed to establish any motive on the part of the appellants to commit the crime. In the present case, the eye witness account of P.W.1 corroborated by other evidence, clearly establish the crime and therefore, the failure to prove motive cannot be a ground to discard the prosecution case. In a case which is based on direct evidence, proof of motive is superfluous. The proof of motive holds importance only in the cases based on circumstantial evidence. The above position of law has received reiteration from the Hon’ble Supreme Court in a number of cases. In the case of State of U.P. -Vrs.- Kishanpal and others reported in (2008) 16 Supreme Court Cases 73, the Hon’ble Supreme Court held as follows: "18........The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they CRA No.126 of 2000 Page 28 of 37 cannot be convicted if the evidence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction." Thus, we are of the view that even though the prosecution has failed to establish specific motive on the part of the appellant to commit the crime, we cannot discard the prosecution case on that score in view of availability of direct evidence of P.W.1. Whether conviction of the appellant under section 302 of I.P.C. is justified? 13. The next question crops up for consideration as to whether the prosecution has successfully proved the case to be one under section 302 of the I.P.C. For holding a case of culpable homicide to be murder, section 300 of the I.P.C. states about four clauses which are as follows:- “Firstly, if the act by which the death is caused is done with the intention of causing death; or Secondly, if it is done with the intention of causing such bodily injury as the offender knows CRA No.126 of 2000 Page 29 of 37 to be likely to cause the death of the person to whom the harm is caused; or Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” Even if a case of culpable homicide falls under any of the above four clauses, but it comes under any of the five exceptions as mentioned in section 300 of I.P.C., it would not amount to murder. It would be a case of culpable homicide not amounting to murder punishable either under section 304 Part-I or section 304 Part-II of I.P.C. In the case of Anbazhagan -Vrs.- The State Represented by the Inspector of Police reported in 2023 LiveLaw (SC) 500, it is held that even when the intention or knowledge of the accused may fall within clauses (1) to (4) of section 300 of the I.P.C., the act of the accused which would CRA No.126 of 2000 Page 30 of 37 otherwise be murder, will be taken out of the purview of murder, if the accused’s case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part I of section 304 of the I.P.C., if the case of the accused is such as to fall within clauses (1) to (3) of section 300 of the I.P.C. It would be offence under Part II of section 304 of the I.P.C., if the case is such as to fall within clause (4) of section 300 of the I.P.C. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of section 299 of the I.P.C. may be attracted, but not any of the clauses of section 300 of the I.P.C. In such a situation also, the offence would be culpable homicide not amounting to murder under section 304 of the I.P.C. It would be an offence under Part I of that section, if the case fall within 2nd part of section 299, while it would be an offence under Part II of section 304 of the I.P.C., if the case falls within 3rd part of section 299 of the I.P.C. To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the I.P.C., it is punishable under the first part of section 304 of the I.P.C. If, however, it falls within the third clause, it is punishable CRA No.126 of 2000 Page 31 of 37 under the second part of section 304 of the I.P.C. In effect, therefore, the first part of this section would apply when there is ’guilty intention’, whereas the second part would apply when there is no such intention, but there is ’guilty knowledge’. The distinction between culpable homicide (section 299 of the I.P.C.) and murder (section 300 of the I.P.C.) has always to be carefully borne in mind while dealing with a charge under section 302 of the I.P.C. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to section 300 of the I.P.C. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of section 300 of the I.P.C. to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of section 300 of the I.P.C., namely, firstly to fourthly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under section 299 of the I.P.C. CRA No.126 of 2000 Page 32 of 37 We once again recapitulate the facts of the case. Prior to the occurrence, there was good relationship between the appellants and the deceased as stated by P.W.1 and P.W.4. There is nothing on record as to what happened prior to the assault between the appellants and the deceased for which even though there was good relationship between the deceased and the appellants, the appellants assaulted the deceased. The evidence of P.W.1, the eye witness to the occurrence, is also not clear on such aspect. P.W.1 came near the deceased only when he heard the shout of his father (deceased). The evidence on record indicates that the deceased was alive when he was brought to the house from the spot by P.W.1 and P.W.5 and the death took place five hours after the occurrence and thus the death was not instantaneous. The number blows given and the impact of such blows on the neck of the deceased and nature of injuries caused and whether the bodily injury inflicted was sufficient in ordinary course of nature to cause death of the deceased is also not on record as the dead body was disposed of and obviously the post mortem could not be conducted. The injured could not be given medical attention at all whereas the place of injury appeared to be so vulnerable that there would have been huge blood loss to the injured which might be a CRA No.126 of 2000 Page 33 of 37 contributory factor to the death of the deceased. We are conscious of the relevant provision under Explanation (2) to section 299 of I.P.C., which provides that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment, the death might have been prevented. Even though in the factual scenario, the case does not appear to come under any of the five exceptions as provided under section 300 of I.P.C. and it is borne out of record that the appellants assaulted the deceased and injury on the neck was caused due to such assault, but in view of the factual scenario and circumstances as discussed above, we are of the view that the prosecution has also not proved to bring the case within four clauses of section 300 of I.P.C., but certainly brought it under 2nd part of section 299 of I.P.C. and therefore, in view of the ratio laid down in the case of Anbazhagan (supra), it would be an offence under Part I of section 304 of I.P.C. Thus, we hold that the conviction of the appellant under Section 302 of the I.P.C. is not justified. Accordingly, we alter the conviction to one under section 304 Part-I of the I.P.C. As per the order passed by this Court on 09.09.2025, we asked the learned counsel for the State to obtain instruction CRA No.126 of 2000 Page 34 of 37 regarding the financial condition, health condition and also if there is any criminal antecedent against the appellants. Today, the learned counsel for the State has produced the written instructions received from I.I.C., Rayagada police station dated 17.09.2025, wherein it is stated that the wife of the appellant no.1 is alive and staying with her family and having five sons and they are doing cultivation works and the health condition of appellant, who was directed to be released on bail by this Court as per order dated 20.09.2000 is good, but his financial condition is poor and there is no criminal antecedent against him. The occurrence took place in the year 1997 and the in the meantime above 28 years have passed. The appellant was aged about 30 years at the time of pronouncement of judgment and he must be reaching around 60 years. Further considering that the appellant belongs to the tribal area, his poor financial condition, in view of passage of time, while altering the conviction to one under section 304 Part-I of I.P.C., we sentence him to R.I. for seven years. It appears that the appellant was taken into judicial custody on 25.11.1997 and from the trial Court records, it appears that he was never released on bail CRA No.126 of 2000 Page 35 of 37 during trial. However, during pendency of the appeal, he was granted bail by this Court vide order dated 20.09.2000 and therefore, the appellant has undergone sentence of about two years and ten months. In view of the sentence imposed today, the appellant shall surrender before the learned trial Court within a period of four weeks from today to serve out the remaining sentence, failing which, the learned trial Court shall take coercive steps in accordance with law for his arrest and remand him to judicial custody. In view of the poor financial condition of the appellant, no fine is imposed on the appellant as it has been held by the Full Bench of Allahabad High Court in the case of Sukh Dev -Vrs.- State of U.P. reported in MANU/UP/0444/2017 that it is not mandatory to impose a fine in addition to a substantive sentence of imprisonment for an offence punishable under section 302 of I.P.C., though it is desirable to impose a fine having regard to the facts and circumstances of the case and the power conferred under section 357 of Cr.P.C. 14. Before parting with the case, we would like to put on record our appreciation to Mr. Malaya Kumar Swain, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court CRA No.126 of 2000 Page 36 of 37 also appreciates the valuable help and assistance provided by Mr. Partha Sarathi Nayak, learned Additional Government Advocate. The hearing fees is assessed to Rs.10,000/- (rupees ten thousand) in toto which would be paid to the learned Amicus Curiae immediately. The trial Court records along with a copy of the judgment be sent forthwith to the Court concerned for information. S.K. Sahoo, J. …………………………… Chittaranjan Dash, J. ……………………………… Orissa High Court, Cuttack The 18th September 2025/Ananta/Rajesh Signature Not Verified Digitally Signed Signed by: RAJESH KUMAR BADHEI Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 27-Sep-2025 12:27:50 CRA No.126 of 2000 Page 37 of 37