The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.91 of 2007 An appeal under section 374 Cr.P.C. from the judgment and order dated 31.08.2007 passed by the 2nd Additional Sessions Judge, Berhampur (Ganjam) in Sessions Case No.45 of 2006 (S.C. 362/04 GDC). ------------------------- Huika Hari ....... Appellant -Versus- State of Orissa ....... Respondent For Appellant: - Mr. Janmejaya Katikia Ms. Jijnasa Panda Ms. Himshi Katikia Advocate 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 SIBO SANKAR MISHRA --------------------------------------------------------------------------------------- -------------------------------- Date of Hearing and Judgment: 20.06.2025 --------------------------------------------------------------------------------------- -------------------------------- JCRLA No.91 of 2007 Page 1 of 33 By the Bench: The appellant Huika Hari faced trial in the Court of learned 2nd Additional Sessions Judge, Berhampur (Ganjam) in Sessions Case No.45 of 2006 (S.C. 362/04 GDC) for commission of offence punishable under section 302 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the accusation that in the intervening night of 22/23.01.2004, he committed murder of Huika Nagaraju (hereinafter ‘the deceased’) at the near end of the Airstrip roadside of Berhampur University. The learned trial Court vide impugned judgment and order dated 31.08.2007 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (ten thousand only), however, no default sentence has been awarded for non- payment of the fine amount. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter ‘F.I.R.’) (Ext.6) lodged by M. Gopal Rao (P.W.6), Campus Supervisor of Berhampur University on 23.01.2004 before the Officer-in-Charge of Gopalpur police station, in short, is that he came to know from some persons at Monark Market that the dead body of the deceased was lying at the Airstrip and somebody had committed murder of the JCRLA No.91 of 2007 Page 2 of 33 deceased. P.W.6 came to the spot where the dead body was lying and found injuries on the person of the deceased. Accordingly, he lodged the written report against unknown persons, basing on which Gopalpur P.S. Case No.07 dated 23.01.2004 was registered under section 302 of I.P.C. by P.W.11, Kailash Chandra Acharya, the Officer-in-Charge of Gopalpur P.S. After registration of the case, P.W.11 took up investigation of the case, examined the informant, came to the spot, conducted inquest over the dead body of the deceased in presence of the witnesses, prepared the inquest report (Ext.3) and sent the dead body to the F.M.& T. Department of M.K.C.G. Medical College & Hospital, Berhampur for post mortem examination through the constables. P.W.11 also seized the blood stained earth, sample earth and two hawai sleepers of the deceased from the spot in presence of the witnesses under seizure list Ext.7. He examined the family members of the deceased, other witnesses, seized the wearing apparels of the deceased on production by the escort constable at Gopalpur police station under seizure list (Ext.1). The wearing apparels of the appellant were seized as were hanging on the wire on the back side of the rented house in presence of witnesses as per JCRLA No.91 of 2007 Page 3 of 33 seizure list (Ext.5). The appellant was arrested and his statement was recorded under Section 27 of the Evidence Act and he led the police party and other witnesses to a busy area which was at a distance of about 80 feet from the spot where the dead body was lying and produced a wooden cricket bat from inside the bush which was seized as per seizure list Ext.8. The appellant was forwarded to Court on 25.01.2004. P.W.11 prepared the spot map vide Ext.12 and on 06.02.2004, he handed over the charge of investigation to P.W.12, Kishore Chandra Dash, who examined the witnesses, revisited the sport, received the P.M. report of the deceased, sent the viscera of the deceased to S.F.S.L., Bhubaneswar for chemical examination, seized some photographs of the scene of occurrence, produced the weapon of offence before the doctor, who conducted post mortem examination and made a query regarding possibility of injuries sustained by the deceased with such weapon and received the query report vide Ext.11 and on completion of investigation, he submitted charge sheet against the appellant under section 302 of the I.P.C. Framing of Charges: 3. After submission of the charge sheet, the case was committed to the Court of Session after complying due JCRLA No.91 of 2007 Page 4 of 33 formalities. The learned trial Court framed charge against the appellant on 10.02.2005. The appellant refuted the charge and claimed to be tried and accordingly, the sessions trial procedure was resorted to establish his guilt. Prosecution Witnesses, Exhibits and Material Objects: 4. During the course of the trial, in order to prove its case, the prosecution has examined as many as twelve witnesses. P.W.1 Golak Behera, a police personnel attached to Gopalpur Police Station, who was in charge of the Centry on 23.1.04 is a witness to the seizure to the wearing apparels of the deceased produced by the escorting constable after post mortem examination under seizure list Ext.1. P.W.2 D. Kaibalya Dora was the police constable attached to Gopalpur Police Station, who escorted the deceased’s body to F.M.&T, M.K.C.G Medical College &Hospital for post- mortem examination on 23.01.04 and later produced the deceased’s blood-stained wearing apparels before the I.O. for seizure. P.W.3 Hrushikesh Panda, Section Officer of Bhanja Vihar University is a witness to the inquest over the dead body of the deceased at the crime scene on 23.01.04 and noticed JCRLA No.91 of 2007 Page 5 of 33 multiple injuries on the deceased including wounds on left forehead and shoulder. P.W.4 Gandharbasen Pradhan was the police constable in-charge of Centry at Gopalpur police station, who is a witness to the seizure of deceased’s blood-stained clothings produced by constable under seizure list Ext.1. P.W.5 Surendranath Das, University staff member received information about the murder of the deceased on 24.01.04 morning and witnessed police seizing a sky colored shirt and navy blue pant that afternoon when police personnel requested his signature on the seizure documentation, with the seized items later identified as M.O.V and M.O.VI.
Facts
P.W.6 M. Gopal Rao, the informant who first saw the dead body in the case, knew both the appellant and the deceased. He deposed that on 23.1.04 around 9 a.m., while he was returning to his quarters, he heard that someone had committed murder of the deceased at the end of Aerodrome field, Rangeilunda. He immediately rushed to the spot and found the deceased’s body lying on the Aerodrome field with blood oozing from the nostrils and ears, injured lower lip with bleeding, and white foam on the mouth. He came to Gopalpur P.S. and lodged the F.I.R. JCRLA No.91 of 2007 Page 6 of 33 P.W.7 Promod Ch. Choudhury, police constable attached to Gopalpur P.S. accompanied the O.I.C. and other staff to Rangeilunda Aerodrome field on 24.01.04 at about 4:30 p.m. along with the appellant and some university staff. He stated about seizure of wooden handmade cricket bat by the I.O. at the instance of the appellant vide seizure list Ext.8. P.W.8 H. Hymavati, the widow of deceased identified the appellant as her deceased husband’s younger brother. She testified about the events of 22.01.2004 night when the incident occurred at their official university quarters. Around 10 p.m., her deceased husband and the appellant went to the garage house to bring a wooden cot, which they transported back in a mini truck after half an hour. After unloading the cot, both went back to park the vehicle in the University garage and at that time, the appellant carried a wooden cricket bat of the son of the deceased, claiming that it was for the protection against street dogs during their walk back. When they didn’t return quickly, she waited and then went to bed. Around midnight, she heard the opening of front door and when she called out, only the appellant responded, telling her that the deceased had not come with him and would come later as he was taking liquor. She became worried when her husband didn’t return even after considerable JCRLA No.91 of 2007 Page 7 of 33 delay and asked the appellant to search for him. The appellant went out for half an hour and returned and told P.W.8 that he could not find her husband anywhere. The next morning around 7 a.m., her children informed her that their father was found dead at the Aerodrome field, after which she rushed to the spot and found her husband’s body with serious bleeding injuries on his head and ear.
Legal Reasoning
counsel for the respective parties, there is no dispute that there is no direct evidence in the case in hand as to who committed the murder of the deceased, when and how and the prosecution case hinges on circumstantial evidence. It is well established rule of criminal justice that fouler the crime, the higher should be the degree of proof. A moral opinion, howsoever strong or genuine cannot be a substitute for legal proof. The Court should not be carried away by the heinous nature of the crime or gruesome manner in which it was found to have been committed. When a case is based on circumstantial evidence, a very careful, cautious and meticulous scrutinization of the evidence is necessary and it is the duty of the Court to see that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature and all the links in the chain of events must be established clearly beyond reasonable doubt and established circumstances should be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. Whether the chain of JCRLA No.91 of 2007 Page 18 of 33 events is complete or not would depend on the facts of each case emanating from the evidence. The Court should not allow suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed away by emotional consideration. The long distance between ‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent, credible and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict. If an iota of doubt creeps in at any stage in the sequence of events, the benefit thereof should flow to the accused. Mere suspicion alone, irrespective of the fact that it is very strong or probable, cannot take the place of legal proof. The quality and credibility of the evidence should be brought on record so that the miscarriage of justice is avoided. The Court should not forget that the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the accused till the charges are proved beyond all reasonable doubt. The prosecution has relied upon the following circumstances to prove the guilt of the appellant:- (i) (ii) Last seen together: Motive; JCRLA No.91 of 2007 Page 19 of 33 (iii) Seizure of Pant (M.O.V) and Shirt (M.O.VI) of Appellant; C.E. Report (Ext.16) finding; Seizure of wooden handmade cricket bat; (iv) (v) Last Seen Together: 10. The circumstance of last seen of the appellant in the company of the deceased is deposed to by two witnesses i.e. P.W.8, the widow of the deceased and P.W.9, the minor son of the deceased. P.W.8 has stated that on the night of occurrence, i.e., on 22.01.2004 at about 10.00 p.m., the deceased along with the appellant went to the garage house to bring a wooden cot and the garage house is situated inside the university campus. She further stated that after about half an hour, both of them brought a wooden cot in a mini truck to the quarters and unloaded the said cot and again went away to keep the mini truck in the garage and while leaving the house, the appellant took the wooden handmade cricket bat which belonged to P.W.9 telling that since during night, the street dogs were creating problems, he was taking the bat. She further stated that though she waited for sometime but neither the appellant nor the JCRLA No.91 of 2007 Page 20 of 33 deceased returned back and then she went to bed and at about midnight, she heard opening of the front door of the quarters which was bolted from outside when the appellant and deceased left the quarters. P.W.8 did not find the deceased but only the appellant had returned back. When she asked the appellant regarding the whereabouts of her deceased husband, the appellant replied that the deceased would come at a later point of time as he was taking liquor. P.W.8 further stated that the appellant went to his bed and she also went to her bed and since the deceased did not return in that night, she requested the appellant to go and search for the deceased. The appellant went outside and after half an hour, he returned and informed her that he could not find the deceased anywhere. She further stated that on the next day morning, she came to know about the dead body of her deceased husband was lying in the aerodrome field at Rangeilunda and she rushed to the field and found the dead body was lying there with bleeding injuries. The reply given by the appellant to the query made by P.W.8 that the deceased would come at a later point of time as he was taking liquor, gets corroboration from the evidence of the doctor (P.W.10) who stated that during P.M. examination, he found rice curry food in the stomach of the deceased which was JCRLA No.91 of 2007 Page 21 of 33 emitting alcohol like smell. Though the viscera were preserved and it was handed over to the police for chemical examination at S.F.S.L., but the I.O. has not taken any steps for sending the same. Of course, the defence except confronting some parts of her previous statement to P.W.8 recorded by the investigating officer (P.W.11) in the cross-examination which were not proved through P.W.11 and giving some suggestions, has not brought out anything substantial to disbelieve her evidence relating to the last seen. The evidence of P.W.9, the child witness, who is the son of the deceased and P.W.8 is required to be discussed here. Some formal questions were put to P.W.9 by the learned trial Court to test his intellectual capacity and understanding and on the basis of the answers given by the witness, the learned trial Court came to hold that P.W.9 had knowledge about worldly affairs. Treating this witness to be a competent witness, his evidence was recorded. After perusing the questions put by the learned trial Court and the answers given by P.W.9, we are of the view that the learned trial Court has taken sufficient precautions before recording the evidence of the child witness and the learned trial Court has rightly held the child witness to be a competent one. JCRLA No.91 of 2007 Page 22 of 33 P.W.9 has almost made an identical statement like his mother (P.W.8) regarding the appellant and the deceased leaving the quarters together after keeping the cot in the quarters to keep the vehicle in the garage and also the appellant carrying cricket bat with him. Like P.W.8, the learned defence counsel has failed to bring anything in the cross-examination of P.W.9 to disbelieve him. Therefore, the evidence of these two witnesses i.e. P.W.8 and P.W.9 proves that in the occurrence night at about 10.30 p.m., the appellant and the deceased went together after keeping the wooden cot in the quarters and the appellant was carrying the cricket bat of P.W.9 and the appellant only returned to the quarters but the deceased did not return and that his dead body of the deceased was found on the next day with injuries in the aerodrome field. Motive: 11. So far as the motive part is concerned, P.W.9, the child witness has stated that prior to the occurrence, whenever his deceased father was returning home after taking liquor, the appellant used to quarrel with him. He further stated about the presence of the appellant at a distance of about 10 feet away from the dead body of his father lying in the aerodrome field. JCRLA No.91 of 2007 Page 23 of 33 The evidence of P.W.8 is completely silent on either aspect. P.W.8 has not stated that at any point of time, the appellant was quarrelling with the deceased over the issue of taking liquor by the deceased. She has also not stated that the appellant was present near the dead body in the aerodrome field on the next day morning when both she as well as her son visited the spot. The motive part that has been put forth by the prosecution through the evidence of P.W.9 cannot be said to be that clinching and it is very difficult to accept that merely because the appellant was quarrelling with his elder brother (deceased) for taking liquor and coming to the house in a drunkard condition, the same would be the motive behind the commission of the crime, rather being the younger brother, he might be dissuading the deceased to take liquor. The appellant also went with the deceased to bring the cot to the quarters which shows the relationship between the two was cordial. Therefore, we are of the view that the prosecution has failed to prove any cogent motive on the part of the appellant to commit the murder of the deceased. 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 JCRLA No.91 of 2007 Page 24 of 33 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. Seizure of Pant (M.O.V) and Shirt (M.O.VI) of Appellant: 12. The evidence of P.Ws.5, 6 and 11, no doubt proves about the seizure of a pant and a shirt under seizure list Ext.5, but it is not proved by way of cogent evidence that it belonged to the appellant. Needless to say that the appellant has denied in the accused statement that the pant (M.O.V) and shirt (M.O.VI) belonged to him. The evidence of P.W.5 indicates that on 24.01.2004, when he had come to his quarters to take lunch, one police personnel called him to come out and showed one sky coloured full shirt and one navy blue coloured full pant and requested him to sign on a paper and accordingly, he had put his signature on the seizure list Ext.5. This witness has been declared hostile by the prosecution. P.W.5 has not whispered anything that the full pant and the shirt which were seized belonged to the appellant. Similarly, the evidence of P.W.6 indicates that on 24.01.2004 at about 2.30 p.m., while he was in his University Office at Bhanja Vihar, the Officer-in-Charge of Gopalpur P.S. as well as Bhanja Vihar outpost contacted him and he accompanied JCRLA No.91 of 2007 Page 25 of 33 the police personnel to the house of the deceased and the appellant was also there and they found one barbed wire fencing on the backside of the house of the deceased and noticed one navy blue coloured full pant and one sky coloured full shirt were on the barbed fence and the police seized the same as per seizure list Ext.5 and he also proved the full pant and full shirt marked as M.O.V and M.O.VI. Most peculiarly, the evidence of P.W.6 is also silent that the pant and shirt which were seized belonged to the appellant. P.W.11, the I.O. has stated about the seizure of the pant and shirt vide seizure list Ext.5 and though he has stated that it belonged to the appellant, but since the I.O. has got no personal knowledge in that respect, it is very difficult to accept such evidence. The evidence that the wearing apparels M.O.V and M.O.VI were of the appellant, could have been best proved through P.W.8 and P.W.9 by the prosecution and it could also have been proved that while the appellant left the quarters with the deceased on the date of occurrence, he was wearing M.O.V and M.O.VI, but the same has not been done. Therefore, we are of the view that Mr. Katikia, learned counsel for the appellant is quite justified in making the submission that the prosecution has JCRLA No.91 of 2007 Page 26 of 33 not proved by cogent evidence that the pant and shirt which were seized by the I.O. (P.W.11) under seizure list Ext.5 belonged to the appellant. The learned trial Court most peculiarly has held that since the appellant and the deceased were residing in one house and there is no evidence that M.O.V and M.O.VI were the wearing pant and shirt of the deceased or of his son, it was inferred that the said pant and shirt belonged to the appellant. We are not able to accept such reasoning assigned by the learned trial Court. P.W.8 has not stated that M.O.V and M.O.VI did not belong to the appellant and P.W.9 has also not stated that M.O.V and M.O.VI did not belong to him. M.O.V and M.O.VI were the dresses of a male person and three male persons i.e. the appellant, deceased and P.W.9 who was around 14 years were staying in the quarters of the deceased, in the backside of which those were seized. Therefore, it was the duty of the prosecution to adduce positive evidence that M.O.V and M.O.VI belonged to the appellant who were acquainted with it or at least to adduce the evidence that it did not belong to the other two male persons who were residing together with the appellant in the same quarters. JCRLA No.91 of 2007 Page 27 of 33 C.E. Report (Ext.16) finding: 13. The chemical examination report (Ext.16) indicates that the full pant and full shirt which were marked as M.O.V and M.O.VI were containing human blood of Group-B and the wearing apparels of the deceased was also containing human blood of Group-B. The learned trial Court should have been put a pertinent question to the appellant in his statement recorded under section 313 of Cr.P.C. regarding the finding in Ext.16 giving the scope to the appellant to explain the same. Law is well settled that when the attention of the accused is not drawn specifically to the incriminating circumstance during his examination under section 313 of Cr.P.C., such circumstance cannot be used against him. Examination of an accused is not a mere formality. It has practical utility for the criminal Courts in affording opportunity to the accused to explain the incriminating circumstances and to explain his stand in defence. Sub-section (4) of section 313 of the Code indicates that answers given by the accused, during his examination under section 313, may be considered by the Court. The words "may be taken into consideration" in such enquiry or trial as appearing in sub- section (4) indicates that the legislature laid down the guideline JCRLA No.91 of 2007 Page 28 of 33 for the Court to give due weight to such answers. In the case of Dharnidhar and Ors. -Vrs.- State of U.P. reported in (2010) 7 Supreme Court Cases 759, it is held that the legislative intent behind section 313 of Cr.P.C. appears to have twin objects, firstly, to provide an opportunity to the accused to explain the circumstances appearing against him and secondly, for the Court to have an opportunity to examine the accused and to elicit an explanation from him, which may be free from the fear of being trapped for an embarrassing admission or statement. The proper methodology to be adopted by the Court while recording the statement of the accused under section 313 of the Cr.P.C. is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under section 313 of the Cr.P.C. In the case of Kuldip Singh -Vrs.- State of Delhi reported in (2003) 12 Supreme Court Cases 528, it is JCRLA No.91 of 2007 Page 29 of 33 held if a material piece of evidence is not put to the accused when he is examined under section 313 of Cr.P.C., the prosecution is disentitled from placing reliance on such evidence. Since this incriminating circumstance i.e. chemical examination report (Ext.16) finding on the full pant and full shirt which were marked as M.O.V and M.O.VI has not been put to the appellant in his statement recorded under section 313 of Cr.P.C., the learned trial Court should not have utilised such finding in Ext.16 against the appellant. Seizure of wooden handmade cricket bat: 14. Now, coming to the seizure of wooden handmade bat at the instance of the appellant on the basis of his statement recorded under Section 27 of the Evidence Act, though the bat was sent for chemical examination and the C.E. report indicates that there was blood stain found on the bat but the origin and the group of blood could not be ascertained. Even if the doctor has stated that the cricket bat which was produced before him could cause the injuries sustained by the deceased but since the findings in the chemical examination report so far as bat is concerned is completely is silent on the origin and group of blood noticed on it, such circumstance cannot be said to be that clinching in nature. JCRLA No.91 of 2007 Page 30 of 33 Conclusion: 15. In view of the foregoing discussions, even if it is proved that the appellant was last seen in the company of the deceased at about 10.30 p.m. leaving the quarters and thereafter the dead body of the deceased was found on the next day morning in the Airstrip roadside, but we cannot lost sight of the ratio laid down in the case of Padman Bibhar (supra) in which reliance has been placed in the case of Kanhaiya Lal -vs.- State of Rajasthan reported in (2014) 4 Supreme Court Cases 715 wherein it has been held that evidence on ‘last seen together’ is a weak piece of evidence and conviction only on the basis of ‘last seen together’ without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under section 302 of I.P.C. Thus, in absence of any other clinching evidence on record, merely because the prosecution has proved that the deceased died a homicidal death and a wooden handmade cricket bat was recovered at the instance of the appellant coupled with the last seen together evidence, it cannot be said that the prosecution has proved that the chain of circumstances is so complete to come to an inescapable conclusion that within all human probabilities, the crime was committed by the JCRLA No.91 of 2007 Page 31 of 33 appellant and none else and that the facts so proved unerringly point towards the guilt of the appellant. Law is well settled that suspicion, howsoever grave it may be, cannot take the place of proof or form the basis of conviction and heinous the crime, higher must be proof. Therefore, we are of the view that the learned trial Court was not justified in convicting the appellant under section 302 of the I.P.C. and thus it is a fit case where benefit of doubt should be extended in favour of the appellant. Accordingly, the JCRLA is allowed. The conviction of the appellant under Section 302 I.P.C. is hereby set aside and he is acquitted of such charge. The appellant, who is on bail by order of this Court, is hereby discharged from liability of the bail bonds and the surety bonds shall also stand cancelled. Before parting with the case, we would like to put on record our appreciation to Mr. Janmejaya Katikia, learned counsel along with Ms. Jijnasa Panda and Himshi Katikia, learned counsel appearing for the appellant by rendering their valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Partha Sarathi Nayak, learned Additional Government Advocate for the State of Odisha. JCRLA No.91 of 2007 Page 32 of 33 The trial Court records with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action. …............................ S.K. Sahoo, J. ................................ S. S. Mishra, J. Orissa High Court, Cuttack The 20th June 2025/Ashok/Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 30-Jun-2025 11:02:19 JCRLA No.91 of 2007 Page 33 of 33
Arguments
P.W.9 H. Srinibash, the son of deceased identified the appellant as his uncle. He corroborated his mother’s testimony about the events of 22.01.2004 night when his deceased father and the appellant went together to the university garage around 10 p.m. to bring a cot. After bringing the cot in a mini truck, both went back to park the vehicle, with the appellant taking his cricket bat, telling that it was for the protection from street dogs during their return walk. The next morning, his mother informed him that someone had killed his father. When they went to the Aerodrome field, they found police and people gathered around his father’s dead body, which had bleeding injuries all over. He noticed the appellant was sitting about 10 feet away from the place where his father’s dead body was lying, but when asked about the cause of death of the deceased, the appellant didn’t reply. He mentioned that prior to JCRLA No.91 of 2007 Page 8 of 33 this incident, whenever his deceased father was returning home after taking liquor, the deceased and the appellant used to quarrel. He identified the recovered cricket bat (M.O.XI) as his own handmade cricket bat. P.W.10 Dr. J.K. Dash conducted the post mortem examination over the dead body of the deceased and proved the P.M. Report (Ext.10) and also opined to the query made by the I.O. in affirmative regarding possibility of injuries sustained by the deceased with the cricket bat and the query report is proved as Ext.11. P.W.11 Kailash Ch. Acharya, Officer-in-Charge of Gopalpur Police Station is the Investigating Officer of the case and later on he handed over the investigation of the case to his successor Kishore Chandra Dash (P.W.12) upon his transfer on 06.02.2004 and P.W.12 carried on the investigation and on completion of investigation, he submitted charge sheet. The prosecution exhibited seventeen documents. Ext.1 is the seizure list, Ext.2 is the dead body challan, Ext.3 is the inquest report, Ext.4 is the command certificate, Ext.5 is the seizure list, Ext.6 is the F.I.R., Ext.7 and Ext.8 are the seizure lists, Ext.9 is the confessional statement of appellant, Ext.10 is the post mortem report, Ext.11 is the examination report of JCRLA No.91 of 2007 Page 9 of 33 weapon of offence, Ext.12 is the spot map, Ext.13 is the acknowledgement, Ext.14 is the forwarding report of the S.D.J.M., Ext.15 is the acknowledgment receipt, Ext.16 and Ext.17 are the chemical examination reports. The prosecution has also proved twenty three material objects. M.O.I is red coloured sweater, M.O.II is black coloured full pant, M.O.III is half baniyan, M.O.IV is sky coloured chadi, M.O.V is navy blue coloured full pant, M.O.VI is sky coloured shirt, M.O.VII is pair of chappal, M.O.VIII is broken glass pieces, M.O.IX is blood stained earth, M.O.X is sample earth, M.O.XI is handmade cricket bat, M.O.XII to XVII are positive photographs and M.O.XVIII to XXIII are the negatives. Defence Plea: 5. The defence plea of the appellant is one of denial. Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as the documentary evidence on record, came to hold that in view of the evidence of P.Ws.3, 6, 8 and 9 so also the evidence of the doctor (P.W.10) and P.M. report (Ext.10), the prosecution has proved that the death of the deceased was homicidal in nature. The learned trial Court taking into account JCRLA No.91 of 2007 Page 10 of 33 the motive behind the commission of crime as deposed to by P.W.9, the evidence of last seen as deposed to by P.W.8 and P.W.9, the seizure of wearing apparels of the appellant as deposed to by P.Ws.5, 6 and the I.O. (P.W.11) and leading to discovery of weapon of offence, i.e., cricket bat as deposed to by P.Ws.6, 7 and 11, found the appellant guilty of the offence charged. Contentions of the Parties: 7. Mr. Janmejaya Katikia, learned counsel being ably assisted by Ms. Jijnasa Panda and Himshi Katikia, learned counsel appearing for the appellant emphatically contended that there is no direct evidence in the case and the case is based on circumstantial evidence and the motive behind the commission of crime as deposed to by P.W.9, the son of the deceased is shaky in nature. He further argued that the appellant and the deceased were closely related to each other and the deceased was the step brother of the appellant and the materials available on record indicate that prior to the occurrence, they had gone together to bring one wooden cot and they also brought it, which shows that there was good relationship between them. He argued that the last seen evidence adduced by P.Ws.8 and 9 should not be accepted and though the minor son of the deceased being JCRLA No.91 of 2007 Page 11 of 33 examined as P.W.9, who is a child witness stated that when he came to the spot, he found the appellant was sitting at a distance of ten feet from the dead body of his father but the evidence of P.W.8, the widow of the deceased who accompanied P.W.9 is completely silent in that respect. He further argued that though one pant and shirt seized by the I.O. (P.W.11) were stated to be that of the appellant, but there is no clinching evidence that the said pant and shirt belonged to the appellant. Learned counsel further argued that even though the chemical examination report indicates that human blood of Group-B was found in the full pant and shirt of the appellant, which is stated to be the blood group of the deceased, but in the 313 Cr.P.C. statement of the appellant, no question has been put with respect to the C.E. report (Ext.16) and therefore, this evidence should not have been utilized against the appellant. He further argued that the wooden bat which was seized by the police stated to be at the instance of the appellant was sent for chemical examination and C.E. report, indicated that the origin and the group of the blood could not be determined. The learned counsel argued that the circumstances available on record do not form a complete chain to come to the irresistible conclusion that it was the appellant who is the author of the crime and therefore, JCRLA No.91 of 2007 Page 12 of 33 it is a fit case where benefit of doubt should be extended to the appellant. To substantiate his contention, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Padman Bibhar -Vrs.- State of Odisha reported in 2025 SCC OnLine SC 1190. Mr. Partha Sarathi Nayak, learned Additional Government Advocate, on the other hand, supported the impugned judgment and argued that the two witnesses P.W.8 and P.W.9 are the natural witnesses, who have stated that the appellant left the house in the company of the deceased at around midnight and on the next day morning, the dead body of the deceased was found from the Aerodrome field and specific questions have been put on this last seen circumstances to the appellant in the 313 Cr.P.C. statement, but no explanation has been offered by the appellant. The learned counsel further argued that the seizure of weapon i.e. the cricket bat at the instance of the appellant from inside the bush as per the leading to discovery statement of the appellant recorded under section 27 of the Evidence Act is another clinching evidence, which is very relevant inasmuch as the doctor (P.W.10) who conducted post-mortem examination also examined the bat on being produced by the I.O. and gave a positive opinion that the injuries JCRLA No.91 of 2007 Page 13 of 33 detected on the body of the deceased were possible by such bat. The learned counsel further argued that the appellant’s dresses i.e. one full pant and shirt were seized from the back side of the house where it was hanging and the it was sent for chemical examination and the C.E. Report (Ext.16) clearly indicates that it contained human blood of Group-B which was also the blood group of the deceased which would be evident from the report and since the homicidal death of the deceased is not in dispute, the circumstances which have been established by the prosecution can be said to be sufficient to form a complete chain and therefore, the learned trial Court is quite justified in accepting these circumstances and finding the appellant guilty under section 302 of the I.P.C. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first assess the evidence on record to see whether the prosecution has successfully established that the deceased met with homicidal death or not. Apart from the evidence of the witnesses who found the dead body of the deceased lying in Aerodrome field with injuries, the inquest report marked as Ext.3, the evidence of the JCRLA No.91 of 2007 Page 14 of 33 doctor (P.W.10) so also the post mortem examination report (Ext.10) are very much relevant for this purpose. P.W.10 conducted the post mortem examination over the dead body of the deceased on 23.01.2004 in the department of F.M. & T, MKCG, Medical College and Hospital, Berhampur and he noticed the following external injuries: (i) Abraded contusion 3.5cm x 3cm over left frontal area of head, 5 cm above the left eyebrow; (ii) Abraded contusion of 1cm x 0.5cm over a swelling of 3cm x 3cm just above the outer end of left eyebrow; (iii) Abrasion 8cm x 5.5cm on the leftside face in front of the left ear; (iv) Right side lower lip is found contused, 3cm x 1.5cm with laceration of the mucosal surface; (v) Abraded contusion3 cm x 2.5 cm on the tip of left shoulder and blood was coming out from mouth, nostril and right ear. On dissection, the following internal injuries were noticed:- JCRLA No.91 of 2007 Page 15 of 33 (i) The under surface of the scalp was found contused with extravasation of blood at left frontal area of head corresponding external injury nos. (i) & (ii); (ii) 0.5cm thick sub scalp hematoma was found spreading over right side of head involving frontal, temporal and parietal area with contusion of right temporal muscle; (iii) A depressed and comminuted fracture of skull bone in an area of 6cm x 6cm on right posterior parietal area of head, from the upper and anterior portion of which a fissure fracture of 12.5cm long extending forwards towards right frontal bone to the medial part of superciliary arch. Another fissure fracture extending downwards from the anteroinferior portion of the depressed area to the base of skull in front of right ear; (iv) Acute diffused subdural hemorrhage was noticed spreading over both the hemisphere of the brain being more mark on left side; JCRLA No.91 of 2007 Page 16 of 33 (v) The fracture line extends to the base of skull on the floor of right middle and posterior cranial fossa; (vi) Surface contusion detected on the anterior and inferior aspect of left temporal lobe of brain; The doctor has stated that during post-mortem examination, he noticed that 200 grams of rice curry food in the stomach which was emitting alcohol like smell and he preserved the viscera and handed over the same to the police for chemical examination at S.F.S.L. He also preserved the scalp hairs and sample blood of the deceased and handed over the same to the accompanying police for further examination at R.F.S.L. He has also proved the post mortem report vide Ext.10. Though some questions have been put in the cross-examination by the learned defence counsel, but the evidence of the doctor has remained unchallenged. The learned counsel for the appellant has not challenged the finding on homicidal death of the deceased. After going through the evidence of the doctor and the post mortem report apart from the inquest report and the evidence of witnesses, we are of the humble view that the finding of the learned trial Court that the prosecution has JCRLA No.91 of 2007 Page 17 of 33 successfully established that the deceased met with a homicidal death is quite justified. Appreciation of a case based on circumstantial evidence: 9. Adverting to the contentions raised by the learned