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IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.86 of 2009 An appeal from the judgment and order dated 09.12.2008 by the Adhoc Addl. Sessions Judge (F.T.C), Malkangiri in Criminal Trial No.28 of 2008. --------------------- Bhagban Nayak ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Ms. Mandakini Panda Advocate For Respondent: - Miss Subhalaxmi Devi Addl. Standing Counsel --------------------- P R E S E N T: THE HON’BLE MR. JUSTICE S.K. SAHOO AND THE HON’BLE MISS JUSTICE SAVITRI RATHO --------------------------------------------------------------------------------------- Date of Hearing and Judgment: 19.03.2025 --------------------------------------------------------------------------------------- By the Bench: The appellant Bhagban Nayak faced trial in the Court of the learned Adhoc Additional Sessions Judge (F.T.C.), Malkangiri in Criminal Trial No.28 of 2008 for JCRLA No.86 of 2009 Page 1 of 30 offence punishable under section 302 of the Indian Penal Code (in short „I.P.C.‟) on the accusation that on 10.09.2006 at about 7.00 p.m., in his house situated in village Pedaguda, he committed murder of his wife Radhika Nayak (hereafter „the deceased‟). The learned trial Court vide impugned judgment and order dated 09.12.2008, found the appellant guilty of the offence charged and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo R.I. for a further period of six months. Prosecution Case: 2. The prosecution case, as per the first information report lodged by P.W.1 Bhaktaram Pujari before the Officer in- charge of Mudulipada police station on 11.09.2006, in short, is that on 10.09.2006 in the evening hours at about 7.00 p.m., the appellant dealt five to six tangia blows to the deceased on her head, ear and back suspecting her character as a result of which the deceased sustained bleeding injuries and died and her dead body along with the dead body of their new born baby of twenty days was lying JCRLA No.86 of 2009 Page 2 of 30 in the courtyard of the house. The informant received the information from the co-villager Bhagirathi Nayak and rushed to the spot and he found the dead bodies lying there and further found that the appellant was standing there being armed with a Tangia and was shouting. It is further stated in the F.I.R. that a village meeting was convened over this issue and the appellant was asked about the occurrence and he confessed his guilt and stated to have killed the deceased by dealing blows with Tangia suspecting
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her character. It is further stated in the first information report that on account of heavy rain in the night on 10.9.2006, the first information report could not be lodged in the police station and on the next day, the written report was presented by P.W.1. On the basis of such written report presented by P.W.1, Mudulipada P.S. Case No.20 dated 11.9.2006 was registered under section 302 of Indian Penal Code against the appellant and Sub-Inspector of Police R.Sabar took up investigation of the case. On his transfer, the charge of investigation was taken over by P.W.8 Niranjan Behera, JCRLA No.86 of 2009 Page 3 of 30 I.I.C., Mudulipada police station on 28.12.2007 who re- examined some witnesses, sent the exhibits to R.F.S.L, Berhampur through S.D.J.M., Malkangiri for chemical examination and on conclusion of investigation, he submitted charge sheet against the appellant under section 302 of the Indian Penal Code. Since the Sub-Inspector of Police R.Sabar, who investigated the case from 11.9.2006 till the charge was handed over to P.W.8, the documents prepared by the said S.I. of police R.Sabar were proved by P.W.8. Framing of Charges: 3. After submission of charge sheet, the case was committed to the Court of Session following due procedure, where the learned trial Court framed the charge against the appellant as aforesaid. The appellant pleaded not guilty and claimed to be tried and accordingly, the sessions trial procedure was resorted to establish his guilt. JCRLA No.86 of 2009 Page 4 of 30 Prosecution Witnesses and Exhibits: 4. In order to prove its case, the prosecution examined eight witnesses and also exhibited seventeen documents. P.W.1 Bhaktaram Pujari stated that the appellant was the husband of the deceased and the deceased died about two years back. He further stated that two years back just before the Dusshera, during evening hours, one Moti Nayak and Bhagirath Naik came and told him that the appellant had killed his wife by means of a tangia and hearing the news, they rushed to the house of the appellant and found the deceased was lying dead in front of the verandah and found the bleeding injuries on the back side of her neck and waist. He further stated that on the same day, the panchayat meeting was held and on being asked, the appellant confessed before everybody that he suspected his wife of infidelity and killed her by a Tangia. He further stated that one Sambu scribed the F.I.R. P.W.2 Damu Pujari stated that the deceased, who was the wife of the appellant, died about two years JCRLA No.86 of 2009 Page 5 of 30 back and on the day of occurrence during evening hours, one Bhagirathi Naik came and reported that the appellant had killed the deceased by a Tangia. He further stated that on hearing the news, they rushed to the house of the appellant and found the deceased lying on the verandah with bleeding injuries. He further stated that a meeting was held in the village pertaining to the incident and the appellant was called to the meeting and on being questioned, the appellant admitted his guilt by stating that he had killed his wife by a Tangia as she was of a bad character. He is a witness to the seizure of blood-stained Tangia from the appellant vide Ext.2. He is also a witness to the seizure of one blood-stained check lungi from the appellant vide seizure list Ext.3, seizure of blood-stained earth and sample earth from the spot vide seizure list Ext.4. He is also a witness to the inquest report so also the confessional statement of the appellant vide Ext.5 and Ext.6 respectively. P.W.3 Narasingh Pujari stated that about two years back, prior to Dusshera, during evening hours, one Moti Naik came and told him that the appellant had killed JCRLA No.86 of 2009 Page 6 of 30 the deceased and on hearing such news, he rushed to the house of the appellant and saw the dead body of the deceased lying on the verandah with bleeding injuries and a dead infant child was lying by the side of the deceased. He further stated that pertaining to the incident, one meeting was held in the village and the appellant did not come and after lodging of the F.I.R., when the police came, the appellant was brought. He is a witness to the inquest conducted on the dead body of the deceased so also on the dead body of the deceased‟s infant child vide Ext.5 and Ext.7 respectively. P.W.4 Damburudhar Subudhi was a constable attached to Mudulipada police station, who is a witness to the seizure of wearing apparels of the deceased, one white colour saree and one command certificate vide Ext.8. P.W.5 Dr. Suman Kumar Topno was the Medical Officer, attached to C.H.C., Khairput stated that on police requisition, he conducted post mortem examination over the dead body of the deceased and opined that the cause of death was due to intracranial hemorrhage due to puncture of lungs and there was profuse hemorrhage leading to JCRLA No.86 of 2009 Page 7 of 30 shock and death and the time since death was within 18 hours. He proved the post-mortem examination report vide Ext.9. He also proved the post-mortem examination report of the new born child vide Ext.10 and query report vide Ext.11. P.W.6 Arjun Naik stated that the deceased was the wife of the appellant and a new born child of the appellant and the deceased also died on the date of occurrence. He further stated that the deceased was assaulted by the appellant by means of a Tangia on her neck and other parts of the body for which she died. He further stated that after the occurrence, there was a panchayat in the village which was attended to by all the villagers and on being asked, the appellant admitted his guilt by saying that he had killed his wife by means of a Tangia. P.W.7 Bhagat Samarath narrated more or less the same version as P.W.6. P.W.8 Niranjan Behera is the Investigating Officer in this case. JCRLA No.86 of 2009 Page 8 of 30 Ext.1 is the F.I.R., Ext.2 is the seizure list in respect of one blood-stained Tangia, Ext.3 is the seizure list in respect of one blood-stained lungi of the appellant, Ext.4 is the seizure list in respect of blood-stained earth and sample earth, Ext.5 is the inquest report, Ext.6 is the disclosure statement, Ext.7 is the inquest report conducted over the dead body of the deceased, Ext.8 is the seizure list in respect of wearing apparels of the deceased, one white colour saree and one command certificate, Ext.9 is the post-mortem examination report of deceased, Ext.10 is the post-mortem examination report of new born child, Ext.11 is the query report, Ext.12 is the forwarding letter, Ext.13 is the spot map, Ext.14 is the seizure list in respect of nail clippings of the appellant and a command certificate, Exts.15 & 16 are the dead body challans and Ext.17 is the chemical examination report. Defence plea: 5. The defence plea of the appellant is one of denial. JCRLA No.86 of 2009 Page 9 of 30 Findings of the Trial Court: 6. The learned Trial Court, after assessing the oral as well as documentary evidence on record, came to hold that the death of the deceased has been proved to be homicidal in nature. The learned Trial Court relied upon the evidence of the witnesses relating to extra judicial confession made by the appellant in the village panchayat and came to hold that the extra judicial confession coupled with leading to the discovery of the weapon of offence under section 27 of the Evidence Act, chemical examination report and medical report established the charge under section 302 of the I.P.C. against the appellant. Contentions of Parties: 7. Miss. Mandakini Panda, learned counsel appearing for the appellant argued that there are no eye witnesses to the occurrence and the case is based on circumstantial evidence and the evidence adduced by the witnesses like P.Ws.1, 2, 6 and 7 relating to the confession in the village panchayat is not trustworthy. P.W.3 has stated that a meeting was held in the village after the dead JCRLA No.86 of 2009 Page 10 of 30 bodies were found and the accused did not come to that meeting and only after the lodging of the F.I.R., when the
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police came, the accused was brought. Learned counsel for the appellant further argued that the evidence on record indicates that the appellant and the deceased were living peacefully for eight to nine years and no motive has been proved on the part of the appellant to commit the crime. So far as the evidence of leading to discovery of Tangia is concerned, the concerned Investigating Officer R.Sabar, the S.I. of Police has not been examined in the trial Court and only the disclosure statement of the appellant recorded under section 27 of the Evidence Act vide Ext.6 has been proved by the prosecution but there is no evidence on record that on the basis of such disclosure statement, the appellant led the police party and the witnesses to the place of concealment of the weapon and produced the weapon, which was seized and therefore, the recovery cannot be accepted in law. Moreover, the seized Tangia was sent for chemical examination and the chemical examination report vide Ext.17 indicates that no blood was found on the seized Tangia. It is argued that even if the Tangia in question was JCRLA No.86 of 2009 Page 11 of 30 seized at the instance of the appellant which had no blood on it and which was also not produced during trial to be marked as a material object, the same cannot be utilized as a circumstance against the appellant since it has not proved to be the weapon of offence. It is argued that the circumstances available on record do not form a chain so complete to come to the irresistible conclusion that it is the appellant who has committed the crime and therefore, the impugned judgment is liable to be set aside. 8. Miss. Subhalaxmi Devi, learned counsel for the State, on the other hand, supported the impugned judgment and cited decisions of the Hon‟ble supreme Court in the case of State of U.P. -Vrs.- M.K. Anthony reported in (1985) 1 Supreme Court Cases 505, Piara Singh and others -Vrs.- State of Punjab reported in (1977) 4 Supreme Court Cases 452 and Sahadeven and another -Vrs.- state of Tamil Nadu reported in (2012) 6 Supreme Court Cases 403 and submits that if the extra judicial confession is trustworthy and reliable, the same can itself be the ground to convict the appellant and JCRLA No.86 of 2009 Page 12 of 30 the witnesses, who have deposed about the extra judicial confession, have got no animosity with the appellant to depose falsehood against him and therefore, learned trial Court is quite justified in accepting the evidence of these witnesses and convicting the appellant under section 302 of the Indian Penal Code. Appreciation of a case based on circumstantial evidence: 9. Adverting to the contentions raised by the learned counsel for the respective parties, there is no dispute that in the case in hand, there are no eye witnesses to the occurrence and the case is based on circumstantial evidence. It is the settled principle of law that where the case rests upon circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. In order to base conviction of an accused basing on circumstantial evidence, the prosecution is required to firmly establish each of the circumstances and the circumstances JCRLA No.86 of 2009 Page 13 of 30 cannot be explained under any other hypothesis, the circumstances taken together must form a complete chain so as to unerringly point the finger only at the accused as perpetrator of crime. In the case of Sharad Birdhichand Sarda - Vrs.- State of Maharastra reported in A.I.R. 1984 S.C. 1622, their Lordships have laid down five golden principles so as to constitute “Panchasheel” in the proof of a case based on circumstantial evidence which are as follows:- the “1. The circumstances conclusion of guilt is to be drawn should be fully established; from which 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to be proved, and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show JCRLA No.86 of 2009 Page 14 of 30 that in all human probability the act must have been done by the accused.” Contents of F.I.R.: 10. Though in the F.I.R., it is stated that the appellant was standing near the dead bodies which were lying in his courtyard holding Tangia and shouting, but during trial, nobody has stated in that respect including the informant. The F.I.R. does not constitute substantive evidence. It can only be used as to previous statement for the purpose of either corroborating its maker under section 157 of the Indian Evidence Act or for contradicting him under section 145 of the Indian Evidence Act. Extrajudicial confession: 11. The main circumstance appearing in the case is the extrajudicial confession of the appellant in the village meeting which is stated to have been held after the occurrence and the relevant witnesses on this circumstance are P.Ws.1, 2, 3, 6 and 7. Though P.Ws.1, 2, 6 and 7 have stated about the confession being made by the appellant in the village meeting, but we find that none of them has stated that he JCRLA No.86 of 2009 Page 15 of 30 was present in the meeting and in his presence, the appellant confessed his guilt. P.W.1 has stated that the appellant was called to the meeting and on being asked, he confessed before everybody that he suspected the deceased of infidelity and hence he killed her by a Tangia. In the cross-examination, he has stated that when the meeting was held, the appellant was hiding and the meeting was held in the sadar danda of the village. He further stated that the appellant and the deceased were living together peacefully. P.W.2 has also stated that the appellant was called to the meeting and on being questioned, he admitted his guilt and stated that since the deceased was of bad character, he killed her by a Tangia. So far as P.W.3 is concerned, he stated that pertaining to the incident, one meeting was held in the village, but the appellant did not come and after lodging of the first information report when the police came, the appellant was brought. He further stated in the cross-examination that the appellant and the deceased were staying peacefully as husband and wife for about eight to nine years. P.W.6 has stated that after the occurrence, there was a panchayat in the village which was JCRLA No.86 of 2009 Page 16 of 30 attended to by all the villagers and the appellant on being asked, admitted his guilt and stated that he had killed the deceased by means of a Tangia. In the cross-examination, he has stated that the appellant and the deceased were staying as husband and wife and having children and they had no history of quarreling with each other. P.W.7 has stated that after the occurrence, there was panchayat in the village which was attended to by all the villagers and the appellant on being asked, admitted his guilt saying that he had killed the deceased by means of a Tangia before everybody. Though in the evidence of P.W.1 and P.W.2, it appears that in the meeting, the appellant stated the reason for killing his wife (deceased) that the evidence of P.W.6 and P.W.7 is silent in that regard. The evidence of P.W.3 that the appellant did not come to the meeting place and he was brought only after the police came to the village creates doubt in the evidence of the witnesses like P.Ws.1, 2, 6 & 7, who have stated that the appellant came and made extrajudicial confession in the village meeting. Law is well settled that extrajudicial confession is a weak piece of evidence and requires appreciation with a JCRLA No.86 of 2009 Page 17 of 30 great deal of care and caution. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witnesses before whom it is made. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The Court has to satisfy itself in regard to the voluntariness of the confession, truthfulness of the confession and independent reliable corroboration. Whenever the Court, upon due appreciation of the entire prosecution evidence, intends to base conviction on an extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extrajudicial confession is surrounded by suspicious circumstances and suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, its credibility becomes doubtful and it loses its importance and it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. However an extrajudicial confession, if voluntary and true JCRLA No.86 of 2009 Page 18 of 30 and made in a fit state of mind, can be relied upon by the Court and conviction can be founded thereon if the evidence about the confession comes from the mouth of the witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive attributing an untruthful statement to the accused. It is but a natural curiosity to ask as to why a person of sane mind should at all confess and what benefit he would get by making such confession. Extrajudicial confession, in order to afford a piece of reliable evidence, must pass the test of reproduction of exact words, the reason or motive for the confession and the person selected in whom confidence is reposed. In the case of M.K. Anthony (supra), the Hon‟ble Supreme Court has held as follows: - ”15. There is neither any rule of law nor of prudence that evidence furnished by extrajudicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extrajudicial JCRLA No.86 of 2009 Page 19 of 30 confession a weak piece of evidence. (See Jagta v. State of Haryana : (1974) 4 S.C.C. 747 and State of Punjab v. Bhajan Singh : (1975) 4 S.C.C. 472). In Sahoo v. State of U.P. : A.I.R. 1966 S.C. 40, it was held that ’an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime.’ Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. .......However, in Piara Singh v. State of Punjab : (1978) 1 SCR 661, this Court observed that the law does not require that evidence of an extrajudicial confession should in all cases be corroborated. It thus appears that extrajudicial confession appears to have been treated as a weak JCRLA No.86 of 2009 Page 20 of 30 piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extrajudicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra- judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra- judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon.” JCRLA No.86 of 2009 Page 21 of 30 However, we find that in that case, even the Hon‟ble Supreme Court after holding that if the evidence of extrajudicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon, discussed the other evidence on record like dying declaration, the leading to discovery of the weapon of offence etc. and on that basis found that the prosecution case to be proved. In the case of Piara Singh (supra), the Hon‟ble Supreme Court though held that the learned Sessions Judge erred in law in refusing to rely on the extrajudicial confession holding that it is a very weak type of evidence and that law does not require the evidence of an extrajudicial confession should in all cases be corroborated, based the conviction relying on the evidence of the eye witnesses to the occurrence and other materials on record. In the case of Sahadevan (supra), the Hon‟ble Supreme Court has relied upon number of decisions of the Hon‟ble Supreme Court and came to hold that the extrajudicial confession is a weak evidence by itself and it has to be examined by the Court with greater care and JCRLA No.86 of 2009 Page 22 of 30 caution and it should be made voluntarily and should be truthful and it should inspire confidence. It is further held that the extrajudicial confession attains the greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. Such statement essentially has to be proved like any other fact and in accordance with law. In the case of Nazir Khan and others -Vrs.- State of Delhi, reported in (2003) 8 Supreme Court Cases 461, the Hon‟ble Supreme Court has discussed about the word „voluntary‟ which means a statement made of the free will and accord of accused, without coercion, whether from fear of any threat of harm, promise, or inducement or hope of reward. The Hon‟ble Court further held that if the facts and circumstances surrounding in making of the confession appear to cast a doubt on the voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. JCRLA No.86 of 2009 Page 23 of 30 The question whether a confession is voluntary or not is always a question of fact. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. In the case in hand as discussed above, apart from the fact that none of the witnesses to the extrajudicial confession has stated about his presence in the meeting, there appears to be discrepancies in their statements in as much as two of the witnesses have stated that while confessing the guilt, the appellant also stated the reason for commission of murder whereas the other two witnesses are completely silent in that regard. P.W.3 has stated that the appellant did not come to the meeting place at all. The exact words stated by the appellant have not been deposed to by any of the witnesses like P.Ws.1, 2, 6 & 7. When the appellant was hiding and brought to the meeting place and questioned by the villagers, it is very difficult to accept that extrajudicial confession made, if any in such a scenario would be voluntary in nature. The circumstances in which such confession is stated to have been made, creates doubt that it was of his own free will and accord of the appellant JCRLA No.86 of 2009 Page 24 of 30 without any fear or outside influence. Thus, doubt is created that on his own volition, repenting that he had committed the crime, the appellant came forward and disclosed before the villagers present in the meeting place that he had committed the crime. The duty lies with the prosecution to prove this sort of evidence in a clear and precise way particularly the circumstances surrounding the confession. The Court must consider the age of the individual, his intelligence, education and mental condition. The length of interrogation, the presence of any promise or threat and the presence of any physical or mental coercion are also to be kept in mind while assessing voluntariness of confession and whether it is trustworthy. In view of the doubtful features, we are not inclined to accept the evidence of P.Ws.1, 2, 6 and 7 relating to extrajudicial confession made by the appellant in the village meeting to be voluntary and trustworthy as it has failed to pass the rigorous test on the touchstone of credibility. JCRLA No.86 of 2009 Page 25 of 30 Motive: 12. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of motive is always an enlightening factor in a process of presumptive reasoning in such a case. Absence of motive puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take the place of legal proof. In the case in hand, the prosecution has utterly failed to prove any motive on the part of the appellant. The evidence of P.W.1 that the appellant and the deceased were living together peacefully, the evidence of P.W.3 that for eight to nine years, they were staying together as husband and wife peacefully and the evidence of P.W.6 that the appellant and the deceased were having children and there was no history of quarrelling with each other indicates that the prosecution has failed to prove any motive on the part of the appellant to commit the crime. JCRLA No.86 of 2009 Page 26 of 30 Recovery of Tangia: 13. So far as the recovery of Tangia at the instance of the appellant is concerned, not a single independent witness has stated about such recovery at the instance of the appellant on the basis of his disclosure statement. P.W.2 who is a witness to the seizure of blood-stained Tangia from the appellant vide Ext.2 simply stated that after the F.I.R. was lodged, police came to the village, effected the seizure. The Investigating Officer, who has recorded the disclosure statement of the appellant and prepared the seizure list of the Tangia, has not been examined by the prosecution. Only the disclosure statement of the appellant recorded by the previous I.O. has been proved by the I.O. (P.W.8) who subsequently took over charge of investigation from S.I. of police R.Sabar. In absence of any evidence that on the basis of the disclosure statement, the appellant led the police party and others to the place of concealment of the weapon of offence and the place was not accessible to all and in absence of any evidence that particular weapon was used for commission of JCRLA No.86 of 2009 Page 27 of 30 crime, the recovery becomes immaterial and it is not admissible under section 27 of the Evidence Act. In the chemical examination report vide Ext.17, it appears that no blood was found on the Tangia. The seized Tangia was also not produced during trial. Thus, such evidence cannot be utilized against the appellant. Conclusion: 14. In view of the foregoing discussions, on the basis of the available material on record, it cannot be said that the circumstances have been firmly established by the prosecution and the circumstances form a complete chain and from the circumstances, it can be concluded that it was the appellant and none else who was the author of the crime. Law is well settled that suspicion, howsoever strong cannot take the place of proof. Surmises and conjectures have no place in the matter of legal proof of guilt of an accused. There is ocean of mental difference between “may be true” and “must be true” and the same divides conjectures from sure conclusions. The prosecution must JCRLA No.86 of 2009 Page 28 of 30 elevate its case from the realm of “may be true” to plane of “must be true”. Thus, we are of the view that the conviction of the appellant under section 302 of the Indian Penal Code is not sustainable in the eye of law and accordingly, the same is hereby set aside. The JCRLA is allowed and the appellant is acquitted of the charge under section 302 of the Indian Penal Code. Learned counsel for the State has produced the documents from the jail authority to show that the appellant is in custody. The appellant be set at liberty forthwith, if his detention is not required in any other case. Lower Court record along with a copy of the judgment be sent to the concerned Court. Before parting with the case, we would like to put on record our appreciation to Ms. Mandakini Panda, learned counsel for her preparation and presentation of the case before the Court and rendering valuable help in arriving at the decision above mentioned. This Court also JCRLA No.86 of 2009 Page 29 of 30 appreciates the valuable help and assistance rendered by Ms. Subhalaxmi Devi, learned Additional Standing Counsel for the State. ........................... S.K. Sahoo, J. .............................. Savitri Ratho, J. Orissa High Court, Cuttack The 19th March 2025/ Pravakar/Rajesh Signature Not Verified Digitally Signed Signed by: PRAVAKAR NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Mar-2025 11:18:47 JCRLA No.86 of 2009 Page 30 of 30