The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.03 of 2014 An appeal from the judgment and order dated 06.09.2013 passed by the Sessions Judge, Jajpur in C.T. No. 237 of 2011. --------------------- Sesadev Malik @ Chagala ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Deepak Kumar Sahu Advocate For Respondent: - Mr. Jateswar Nayak Addl. Govt. Advocate --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MISS JUSTICE SAVITRI RATHO --------------------------------------------------------------------------------------- -------------------------------- Date of Hearing and Judgment: 22.01.2025 --------------------------------------------------------------------------------------- -------------------------------- By the Bench: The appellant Sesadev Malik @ Chagala faced trial in the Court of learned Sessions Judge, Jajpur in C.T. No.237 of 2011 on the accusation that on 27.01.011 at about 11.00 a.m. JCRLA No. 3 of 2014 Page 1 of 27 near river Brahmani at Balikuda, he committed murder of Balaram Das (hereinafter „the deceased‟). The learned trial Court vide impugned judgment and order dated 06.09.2013, found the appellant guilty of the offence charged and sentenced him to undergo imprisonment for life and to pay a fine of Rs.20000/- (Rupees twenty thousand), in default, to undergo R.I. for four months. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter „F.I.R.‟) (Ext.1) lodged by one Anadi Das (P.W.1), on 27.01.2011 before the I.I.C., Dharamasala Police Station is that on that day at about 11.00 a.m. the deceased had been to tend cattle and at about 1.00 p.m., the information reached the house of the deceased that he had been murdered and a cow tail was found tied around his neck and the dead body was lying at the place of grazing of the cattle. Hearing such news, the family members of the deceased rushed to the spot and found the deceased lying dead with a cow tail tied around his neck. On the basis of such FIR, Dharamasala P.S. Case No. 15 of 2011 was registered under section 302 of the Indian Penal Code against unknown person. JCRLA No. 3 of 2014 Page 2 of 27 After registration of the case, the I.I.C. directed P.W.22 Ganeswar Malik, S.I. of Police to take up investigation of the case. P.W.22 visited the spot, prepared the spot map (Ext.10), examined the informant and other witnesses, conducted inquest over the dead body of the deceased and prepared the inquest report vide Ext.2. He also seized the blood stained earth and sample earth from the spot as per seizure list Ext.4, took the photographs of the deceased and then sent the dead body to District Headquarters Hospital, Jajpur for post mortem examination and after the post mortem was conducted, he seized the wearing apparels of the deceased as per seizure list Ext.3. The I.O. arrested the appellant on 29.01.2011 and while in police custody, the appellant disclosed about concealing the weapon of offence i.e. Katari and the disclosure statement was recorded vide Ext.22 and then the appellant led the police party and other witnesses and gave recovery of Katari which was seized as per seizure list Ext.7. The appellant was then forwarded to the Court. The I.O. received the post mortem examination report and the cut cow tail and sent the cow tail to V.A.S., Jarka for examination. He also took steps for sending the exhibits for chemical examination to SFSL, Rasulgarh and received the C.E. Report vide Ext.15 and on completion of the JCRLA No. 3 of 2014 Page 3 of 27 investigation, on 02.05.2011, P.W.22 submitted charge sheet against the appellant under section 302 of the I.P.C. Framing of Charges: 3. Upon submission of the charge sheet, the case was
Facts
committed to the Court of Session, where the learned trial Court framed charge against the appellant as aforesaid and the appellant pleaded not guilty and claimed to be tried. Accordingly, the sessions trial procedure was resorted to establish his guilt. Prosecution Witnesses, Exhibits and Material Objects: 4. In order to prove its case, the prosecution examined twenty two witnesses in total. P.W.1 Anadi Das is the informant and father of the deceased, who supported the prosecution case. He is a witness to the inquest over the dead body of the deceased and he proved the inquest report vide Ext.2. He is also a witness to the seizure of wearing apparels of the deceased as per seizure list marked as Ext.3. P.W.2 Bira Rout is the witness to the seizure in whose presence sample earth and pair of chappal along with Kata, half pant, Ganjee and napkin was seized. JCRLA No. 3 of 2014 Page 4 of 27 P.W.3 Sk. Sanaulla and P.W.4 Narendra Malik are the witnesses to the seizure of sample earth and blood stained earth as per seizure list marked as Ext.4. P.W.5 Karunakar Mohanty has not supported the prosecution case. P.W.6 Kandha Das is the uncle of the deceased and a post-occurrence witness. He stated that when he reached at the house of his elder brother, he came to know that some miscreant had killed the son of his brother. He further stated that at the spot, he saw the dead body of the deceased with a cut tail of a red cow, which was tied tightly around the neck of the deceased and the deceased was lying dead below banyan tree and further saw the cows/cattle encircling the dead body of the deceased in a perturbed manner while the accused was found standing holding a stick up to chest height in his groundnut crop field nearby the spot.
Legal Reasoning
been jotted down by the learned trial Court, we are of the view that the learned counsel for the appellant is quite right that most of the circumstances which have been noted in paragraph no.20 of the impugned judgment are based on the confessional statement of the appellant before the Investigating Officer. In the case of Indra Dalal -Vrs.- State of Haryana (2015) 11 Supreme Court Cases 31, while analysing the provisions under sections 25 and 26 of the Evidence Act, it is held that the philosophy behind the provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be JCRLA No. 3 of 2014 Page 14 of 27 acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by the Supreme Court as well as the High Courts. It is further held that the word ’confession’ has no where been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible. Since the confessional statement made by the appellant to the I.O. is hit by section 25 of the Evidence Act and JCRLA No. 3 of 2014 Page 15 of 27 not admissible, therefore the learned trial Court should not have used the same against the appellant. 10. The main circumstance which is appearing on record against the appellant is that the cows of the deceased were causing damage to the crops of the appellant for which threat was given by the appellant to the deceased. As rightly pointed out by the learned counsel for the appellant, no witness has stated to have seen the cows of the deceased were damaging the crops of the appellant. However from the evidence of the witnesses i.e. P.W.s 6, 7, 10 and 21, it appears that they have stated about the threats given by the appellant to the deceased. P.W.6 has stated that the deceased was the son of his elder brother and prior to 15 days of the occurrence, while his wife was cutting the fire-wood, at that time the appellant cautioned his wife that she should keep the deceased Balaram in their custody, so as not to allow his cattle to damage the crops of the appellant, otherwise the deceased had to face dire consequences. The wife of P.W.6 being examined as P.W.7 has stated that about 15 days prior to the occurrence, she was cutting the fire-wood on the river embankment and at that time, the appellant came and told her that the deceased was damaging JCRLA No. 3 of 2014 Page 16 of 27 his crop through cattle. Even though P.W.6 came to know about the threatening part from P.W.7, but the evidence of P.W.7 is silent that appellant gave any threatening to the deceased that the latter would face dire consequences. P.W.10 has stated that the deceased was her grandson and 15 days prior to the occurrence, the appellant had threatened the deceased to murder him, if the deceased would damage his crops again, in the presence of her daughter-in-law (P.W.7), Balaram (deceased) and herself in front of her house. The evidence of P.W.7 is completely silent that when the appellant told him about such damage being caused, P.W.10 was there. P.W.21 has stated that prior to the incident, the appellant had given threatening to the deceased saying that if the cows of the deceased would damage to his crop, then he would kill the deceased, but at that moment, he could not foresee that the appellant might have killed the deceased. In the cross-examination, he has stated that as the appellant had threatened the deceased to kill, he suspected that the appellant might have killed the deceased. On analysis of the evidence of the aforesaid witnesses i.e. P.Ws. 6, 7, 10 and 21, we are of the view that the JCRLA No. 3 of 2014 Page 17 of 27 threatening stated to have been given by the appellant for commission of murder appears to be a doubtful feature. Moreover, it appears to have been done only once which was 15 days prior to the occurrence. There is absence of clinching evidence regarding continuity of such threat by the appellant against the deceased or any complain made by the appellant thereafter that the cattle of deceased caused any damage to his crops. More particularly when nobody has actually seen the cows of the deceased causing damage to the crops of the appellant, this type evidence cannot be used as a motive on the part of the appellant behind the commission of the crime. 11. So far as the circumstance relating to leading to discovery of the weapon is concerned, the I.O. (P.W.22) has stated that on 29.01.2011 after the arrest of the appellant, not only did he confess his guilt, but he also volunteered to give recovery of the weapon of offence i.e. one Katari which he had kept concealed in his house and the statement was recorded vide Ext.12 and the appellant led the I.O. as well as the witnesses to the concealing spot and gave recovery of the Katari which was seized as per seizure list Ext.7. In the seizure list vide Ext.7, P.W.2 and P.W.14 are the two witnesses who have signed the seizure list. However the JCRLA No. 3 of 2014 Page 18 of 27 evidence of P.W.2 is completely silent that the appellant made any such disclosure statement and on the basis of the disclosure statement, the Katari was seized. He has simply stated that after two days of the occurrence, one Katari was seized from the house of the appellant which was given by the appellant. Similarly, P.W.14 has not at all stated about the seizure of any Katari at the instance of the appellant. He has stated that he gave his signature in the seizure list Ext.7. Therefore, there is no independent corroboration to the evidence of the I.O. (P.W.22) that the appellant gave the disclosure statement which was recorded under Ext.12 and on the basis of such disclosure statement, the Katari was seized at the instance of the appellant. Most important factor is that the Katari was sent for C.E. examination and no blood was found in that Katari. 12. Law is well settled that in order to base a conviction of the basis of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. 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. The circumstances should be of a conclusive nature and tendency. They should exclude every JCRLA No. 3 of 2014 Page 19 of 27 possible hypothesis except the one to be proved, and 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 that in all human probability, the act must have been done by the accused. In cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In the recent decision of Abdul Nasar -Vrs.- State of Kerala : 2025 INSC 35, the Hon‟ble Supreme Court has referred to the five golden principles “the panchsheel of the proof of a case based on circumstantial evidence” and gone on to enunciate the principles that courts must adhere to while appreciating and evaluating evidence in cases based on JCRLA No. 3 of 2014 Page 20 of 27 circumstantial evidence. The relevant portions of the judgment are extracted below:- “14. Indisputably, the prosecution case rests on circumstantial evidence. The law with regard to a case based purely on circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda (supra), wherein this Court held thus: “152. Before discussing the cases relied upon by the High Court, we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up to date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198: 1970 SCC (Cri) 55] and Ramgopal v. State of JCRLA No. 3 of 2014 Page 21 of 27 Maharashtra [(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129]: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” JCRLA No. 3 of 2014 Page 22 of 27 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 19 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the JCRLA No. 3 of 2014 Page 23 of 27 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 that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” xx xx xx xx xx 30. We deem it essential to enunciate the principles that courts must adhere to while appreciating and evaluating evidence in cases based on circumstantial evidence, as follows: (i) The testimony of each prosecution and defence witness must be meticulously discussed and analysed. Each witness’s JCRLA No. 3 of 2014 Page 24 of 27 evidence should be assessed in its entirety to ensure no material aspect is overlooked; (ii) Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact. Thus, the reasonable inferences that can be drawn from the testimony of each witness must be explicitly delineated; (iii) Each of the links of incriminating circumstantial evidence should be meticulously examined so as to find out if each one of the circumstances is proved individually and whether collectively taken, they form an unbroken chain consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence; (iv) The judgment must comprehensively elucidate the rationale for accepting or rejecting specific pieces of evidence, demonstrating how the conclusion was logically derived from the evidence. It should explicitly articulate how each piece of evidence contributes to the overall narrative of guilt; (v) The judgment must reflect that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine JCRLA No. 3 of 2014 Page 25 of 27 whether they are compatible with any other reasonable hypothesis.” 13. In the case in hand, in absence of any direct evidence, the main two circumstances which are appearing on record are neither clinching nor do they form a complete chain so as come to an irresistible and inescapable conclusion that in all human probability, the act must have been done by the appellant. In view of the evidence available on record, it is difficult to accept that the prosecution has established the case against the appellant beyond all reasonable doubt. The conclusion arrived at by the learned trial court in convicting the appellant and the reasoning assigned for arriving at such conclusion are not at all acceptable and convincing and it seems that the learned trial Court has proceeded on the basis of conjectures and suspicion and has relied upon inadmissible evidence. There is a long distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. Law is well settled that the suspicion howsoever strong cannot take the place of proof. Therefore, we are of the view that the conviction of the appellant under section 302 of the Indian Penal Code cannot be sustained, in the eyes of law. JCRLA No. 3 of 2014 Page 26 of 27 In the result, the JCRLA is allowed. The impugned judgment and order of conviction and sentence is set aside and the appellant is acquitted of the charge under sections 302 I.P.C. The appellant is in jail custody since the date of his arrest. He shall be released forthwith, if his detention is not required in any other case. 14. Before parting with the case, we would like to put on record our appreciation for Mr. Deepak Kumar Sahu, the learned Amicus Curiae for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned Amicus Curiae shall be entitled to his professional fees which is fixed at Rs.7,500/- (rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Jateswar Nayak, learned Additional Government Advocate. ............................... S.K. Sahoo, J. ................................ Savitri Ratho, J. Orissa High Court, Cuttack The22ndJanuary 2025/Puspa/Sukanta Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jan-2025 20:27:59 JCRLA No. 3 of 2014 Page 27 of 27
Arguments
P.W.7 Smt. Minati Das is the wife of the younger brother of the informant. She also stated in similar manner like the P.W.6. P.W.8 Sunil Kumar Mohanty stated that when there was a talk among the people about the death of the deceased, JCRLA No. 3 of 2014 Page 5 of 27 he went to the spot and saw the dead body of the deceased was lying on the ground and a cut tail of a cow was found tied around the neck of the deceased and later he came to know that the appellant had murdered the deceased as the cows of the deceased damaged the groundnut crop of the appellant. P.W.9 Susanta Mohanty @ Gandhi has stated that as the cow of P.W.1 damaged the crop of the appellant, the appellant cut the tail of the cow and thereafter, the appellant killed the son of P.W.1 pressing his neck by means of that cut tail. He further stated that the appellant was found carrying a bundle of wood and was holding a „KATA‟ in his hand. P.W.10 Smt. Janaki Das is the grandmother of the deceased, who received the information first and had gone to the spot along with other villagers and family members. P.W.11 Dr. Nimai Charan Nayak was the Paediatric Specialist attached to District Headquarters Hospital, Jajpur, who conducted the post mortem examination over the dead body of the deceased on police requisition and proved his report vide Ext.5. P.W.12 Nanda Das is the uncle of the deceased. He also stated in similar manner like the P.W.9. JCRLA No. 3 of 2014 Page 6 of 27 P.W.13 Bidyadhar Naik, P.W.15 Sanatan Mohanty and P.W.16 Rabindra Behera are the witnesses to the inquest and they did not support the prosecution case for which they were declared hostile by the prosecution. P.W.14 Akhaya Kumar Das is a witness to the seizure as per seizure list marked as Exts.3, 6 and 7. P.W.17 Dr. Haramohan Pattanaik was the V.A.S., Dharmasala, who examined the cow and the cow tail on police requisition and proved his report vide Ext.8. P.W.18 Acutananda Malik and P.W.19 Niranjan Jena were working as constables attached to Dharmasala police station. They are the witnesses to the seizure of sample blood and cow tail as per seizure list marked as Ext.9. P.W.20 Tanulata Das and P.W.21 Binod Das are the aunt and uncle of the deceased respectively. They supported the prosecution case. P.W.22 Ganeswer Malik was the Sub-Inspector of Police attached to Dharmasala police station, who is the Investigating Officer of the case. The prosecution exhibited fifteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Exts.3, 4, 9 and 6/1 are JCRLA No. 3 of 2014 Page 7 of 27 the seizure lists, Ext.5 is the post mortem report, Exts.6 and 7 are the signature of P.W.14 on seizure list, Ext.8 is the medical report, Ext.10 is the spot map, Ext.11 is the dead body challan, Ext.12 is the disclosure statement, Ext.13 is the forwarding report, Ext.14 is the acknowledgement receipt and Ext.15 is the chemical examination report (two sheets). The prosecution also proved nine material objects. M.O.I is the pair of chapel of the deceased, M.O.II is the blue jean pant, M.O.III is the belt, M.O.IV is the full ganji, M.O.V is the Katari, M.O.VI is the colour ganji, M.O.VII is one Baramuda, M.O.VIII is one check napkin and M.O.IX is the cow tail in a plastic jar. Defence Plea: 5. The defence plea of the appellant was one of denial and it was pleaded by the appellant that he saw the dead body of the deceased lying with a cow tail tied around the neck of the deceased and accordingly he intimated the same to the family members of the deceased and when the family members of the deceased arrived at the spot, they found that the cattle of the deceased were damaging his crops. JCRLA No. 3 of 2014 Page 8 of 27 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 there are no eye witnesses to the occurrence and the case is based on circumstantial evidence and mainly relying on the circumstantial evidence that the appellant had previously threatened the deceased as the cows of the deceased were damaging his crops and that at the instance of the appellant, the weapon of offence was recovered, found the appellant guilty. Contentions of the Parties: 7. Mr. Deepak Kumar Sahu, learned counsel appearing for the appellant contended that the circumstances which have been jotted down by the learned trial Court in the impugned judgment in paragraph-20 are not there in the evidence on record and whatever the appellant stated to have confessed before the Police, each of it has been taken to be one of the circumstances which has been used against him, when such confessional statement was not at all admissible. It is argued that no one has seen the cows of the deceased damaging the crops of the appellant and the so-called threatening aspect has been deposed to by only the family members of the deceased JCRLA No. 3 of 2014 Page 9 of 27 which is not convincing. So far as the leading to discovery of the weapon of offence is concerned, the seized Katari was sent for chemical examination, but no blood was found as per the C.E. report Ext.15. He further argued that the circumstances which are appearing on record are not clinching and they do not form a complete chain so as to irresistibly come to the conclusion that it is the appellant who is the author of the crime and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. Jateswar Nayak, learned Additional Government Advocate on the other hand supported the impugned judgment and argued that there are ample evidence on record that few days prior to the date of occurrence, the appellant had threatened the deceased with dire consequences as the cows of the deceased were causing damage to his crops and the same might be the motive behind the commission of crime. Learned counsel further argued that cutting of the cow tail of the deceased and finding of the same cow tail tied around the neck of the deceased is another clinching evidence against the appellant. He further argued that the appellant gave recovery of the Katari with which the cow tail was cut and therefore, it can be said that since the cow of the deceased damaged the crops of JCRLA No. 3 of 2014 Page 10 of 27 the appellant, the latter was threatening the deceased with dire consequences and on the date of occurrence also, as the cows of the deceased were found to be damaging the crops of the appellant, the appellant not only cut the tail of the cow but also with the said cut cow tail strangulated the deceased, as a result of which the deceased died. Learned counsel further urged that the evidence of the doctor (P.W.11) also indicates that the cause of death was due to asphyxia caused by strangulation by ligature and therefore, the prosecution has successfully established the charge under section 302 of I.P.C. against the appellant and the impugned judgment and order conviction should be confirmed. Whether the deceased met with 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 Balaram Das met with a homicidal death or not. Apart from the inquest report (Ext.2), the evidence of P.W.11 Dr. Nimai Charan Nayak is very relevant in that respect. P.W.11 conducted the post mortem examination on 27.01.2011 at District Headquarters Hospital, Jajpur and he found an animal tail was found knotted around the neck of the JCRLA No. 3 of 2014 Page 11 of 27 deceased and the knot being on the right side of the neck. He also made the following observations: (i) One animal tail distal part containing the hairs was found knotted around the neck, the knot being on the right side of the neck; (ii) One bruise over chest of size 1" X 1" X 1/4" and another abrasion over chin of size 1" X 1‰" found ante mortem in nature; (iii) After cutting the ligature material the mark on the neck was found well defined horizontally placed continuous round the neck below the thyroid cartilage with varying breadth from ‰" to 1" and deep corresponding to the material found in, the neck used as ligature material; (iv) The base was reddish, the subcutaneous tissue under the ligature mark was ecchymosed, the bones and cartilages were intact and the ligature mark was in ante mortem in nature; (v) The mucus membrane of larynx and trachea congested and blood stain mucus forth found; (vi) The brain and meninges were intact and congested; JCRLA No. 3 of 2014 Page 12 of 27 (vii) Both the lungs were intact and congested. Both side of heart full of dark fluid blood; (viii) Stomach contains about 300 grams of partially digested food particles and the mucus membrane congested; (ix) The liver spleen, kidney was intact and congested; (x) The material used as a ligature was an animal tail containing hairs is about 13” length which was seized and preserved. The doctor opined as per his report vide Ext.5 that the cause of death was due to asphyxia caused by strangulation by ligature and the time of death was 12 hours prior to the post mortem examination. The doctor further stated that the aforesaid injuries are sufficient to cause death of a person in ordinary course of nature. Nothing has been brought out in the cross- examination of the P.W.11 to disbelieve his evidence. Learned counsel for the appellant had also not challenged the evidence of P.W.11. After going through the inquest report (Ext.2), evidence of P.W.11 and the post mortem report (Ext.5) findings, JCRLA No. 3 of 2014 Page 13 of 27 we are of the humble view that the finding of the learned trial Court that the deceased met a homicidal death is quite justified. 9. Now coming to the culpability of the appellant in connection with the commission of murder of the deceased, admittedly there are no eye witnesses to the occurrence and the case is based on circumstantial evidence. On a bare glance of the circumstances which have