The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.123 of 2005 An appeal under section 374 of Cr.P.C. from the judgment and order dated 07.06.2005 passed by the 1st Additional Sessions Judge, Puri in S.T. Case No.28/642 of 2003. ------------------------- Baraju Mania @ Behera ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Arun Kumar Das (1) 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 MR. JUSTICE CHITTARANJAN DASH --------------------------------------------------------------------------------------- -------------------------------- Date of Hearing: 11.12.2025 Date of Judgment: 17.12.2025 ----------------------------------------------------------------------------------------------------------------------- S.K. Sahoo, J.: The appellant Baraju Mania @ Behera faced trial in the Court of learned 1st Additional Sessions Judge, Puri in S.T. Case No.28/642 of 2003 for offences punishable under sections JCRLA No.123 of 2005 Page 1 of 36 376/302 of the Indian Penal Code (hereinafter, „I.P.C.‟) on the accusation that on 23.05.2003 at about 3.30 p.m. in a ditch near a banyan tree (locally known as „Fasidia Baragacha‟) of village Podatara under Puri Sadar police station, he committed rape on „MP‟ (hereafter, „the deceased‟) and intentionally committed her murder. The learned trial Court vide impugned judgment and order dated 07.06.2005 found the appellant guilty under both the charges and sentenced him to undergo imprisonment for life under section 302 of the I.P.C. and to undergo R.I. for ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo R.I. for two years under section 376 of the I.P.C. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter, „F.I.R.‟) (Ext.1) lodged by P.W.4 Sasimani Pradhan on 23.05.2003 before the Officer in-charge, Puri Sadar police station, in short, is that on 23.05.2003 (Friday), she along with her deceased daughter had been to graze cattle and goats inside a ditch and at about 3.30 p.m., while both of them were returning to their house, on the way, two goats ran away towards Dhadibandha. P.W.4 instructed her deceased daughter JCRLA No.123 of 2005 Page 2 of 36 to catch hold of the two goats and bring them back to the house and simultaneously she proceeded to the house with the rest of the cattle and goats. P.W.4 waited till 4.30 p.m. in the house, but since her deceased daughter did not return back, she went in search of her daughter calling her name. She found the appellant was standing in the ditch where the dead body of her deceased daughter was lying. P.W.4 found the deceased was having bleeding from her private parts, bite marks on her right side cheek and there was swelling on the neck and she had beaten her tongue. Looking at the condition of the deceased, P.W.4 cried and shouted which drew the attention of the co-villagers, who rushed to the spot. At that time, the appellant was trying to run away but he was caught hold of by the villagers. The deceased was shifted to the District Headquarters Hospital, Puri where the doctors declared her to be dead. P.W.4 came to believe that the appellant after committing rape on the deceased, murdered her. On the basis of the oral report of P.W.4, P.W.1 Purna Chandra Barik scribed the F.I.R. and it was presented before the Officer in-charge, Sadar police station and accordingly, Puri Sadar P.S. Case No.71 dated 23.05.2003 was registered under sections 376/302 of the I.P.C. against the appellant. JCRLA No.123 of 2005 Page 3 of 36 3. P.W.13 Gyana Ranjan Mohapatra, O.I.C., Sadar P.S., Puri took up investigation of the case, examined the informant (P.W.4) and other witnesses. He proceeded to D.H.H., Puri and then to village Podatara where the occurrence took place and found that the appellant was detained by the villagers. He deputed the constable to guard the appellant and proceeded to the ditch where the occurrence had taken place. He seized one white elastic hair band, one hair clip, one bidi, two elastic hair robbers, two matchsticks as per seizure list Ext.12 in presence of the witnesses. He seized the wearing apparels of the appellant under seizure list Ext.3 and also seized the wearing apparels of the deceased on production of her mother (P.W.4) as per seizure list Ext.4. The scientific team arrived at the spot and took photographs. The I.O. (P.W.13) returned to D.H.H., Puri with the appellant, arrested him and sent him for medical examination. He held inquest over the dead body of the deceased and prepared the inquest report Ext.2 and sent the dead body for post mortem examination and also forwarded the appellant to the Court on 24.05.2003. The escorting constable produced the wearing apparels of the deceased and command certificate, which were seized as per seizure list Ext.6. He received the spot visit report of D.F.S.L. and photographs with negatives and sent the material objects to S.F.S.L., Rasulgarh for chemical JCRLA No.123 of 2005 Page 4 of 36 examination through learned S.D.J.M., Puri. He received the medical examination report of the appellant and sent the viscera to S.F.S.L., Rasulgarh. He made a query to the doctor (P.W.9), who conducted post mortem examination over the dead body and received the query report vide Ext.10. On completion of investigation, P.W.13 submitted charge sheet against the appellant on 14.09.2003 under sections 376/302 of the I.P.C. Framing of Charges: 4. After submission of charge sheet, the case was committed to the Court of Session after complying due formalities. The learned trial Court framed charges against the appellant as aforesaid and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. Prosecution Witnesses, Exhibits and Material Objects: 5. During the course of trial, in order to prove its case, the prosecution has examined as many as thirteen witnesses. P.W.1 Purna Chandra Barik is the scribe of the F.I.R. vide Ext.1. P.W.2 Pratap Chandra Behera is a co-villager of the informant and also a post-occurrence witness. He supported the JCRLA No.123 of 2005 Page 5 of 36 prosecution case and stated the deceased was lying at the spot with bleeding injuries and the appellant was present there, who was nervous and sweating. P.W.3 Krishna Chandra Pradhan is a co-villager of the informant and also a post-occurrence witness. He stated that he arrived at the spot on hearing the shout of P.W.4 for help and found the appellant was present at the spot in a nervous state of mind and the appellant was brought to the village and in presence of the villagers, the appellant confessed to have committed rape on the deceased and murdered her. P.W.4 Sasimani Pradhan is the mother of the deceased and the informant in the case. She supported the prosecution case. She stated to have seen the deceased lying with bleeding injuries and the presence of the appellant there who tried to escape on the approach of the villagers, but was caught hold of and brought to the village. P.W.5 Narayan Sahu is a co-villager of P.W.4. He is a witness to the inquest report vide Ext.2 and also a witness to the seizure lists vide Exts.3 and 4. P.W.6 Pradeep Kumar Bhanj was a constable attached to Sadar police station, Puri, who accompanied the dead body of the deceased for post mortem examination and after post mortem, he handed over the wearing apparels of the JCRLA No.123 of 2005 Page 6 of 36 deceased and the command certificate to the I.O. He is also a witness to the seizure list vide Ext.6. P.W.7 Sobani Ojha has partly supported the prosecution case for which he has been declared hostile by the prosecution. P.W.8 Chhaila Pradhan has stated that on the date of occurrence, on hearing hulla that the appellant murdered the deceased, he went to the house of the deceased and found her lying dead and saw blood was coming from her private parts and her wearing apparels were also stained with blood. P.W.9 Dr. Sarbeswar Acharya was the Assistant Surgeon, D.H.H., Puri, who on police requisition, conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.7. P.W.10 Dr. Abhijit Ghosh was the Assistant Surgeon, District Jail Hospital, Puri, who on police requisition, collected saliva of the appellant and handed over the same to the Superintendent of District Jail, Puri and proved his report vide Ext.8. P.W.11 Dr. Pramod Kumar Mohanty was the Assistant Surgeon, D.H.H., Puri, who on police requisition, examined the appellant and proved his report vide Ext.9. JCRLA No.123 of 2005 Page 7 of 36 P.W.12 Gandharb Pradhan is a post occurrence witness and also a witness to the inquest report vide Ext.2. P.W.13 Gyana Ranjan Mohapatra was the O.I.C. of Sadar P.S., Puri, who is the Investigating Officer of the case. The prosecution exhibited eighteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Ext.3 is the seizure list of wearing apparels of the appellant, Ext.4 is the seizure list of the wearing apparels of the deceased, Ext.5 is the command certificate, Ext.6 is the seizure list in respect of one scot, one chadi of the deceased, Ext.7 is the post mortem report, Ext.8 is the report of the doctor (P.W.10), Ext.9 is the report of the doctor (P.W.11), Ext.10 is the report of P.W.11 to query of the I.O., Ext.11 is the report of the Dr. Benumadhab Padhi, Ext.12 is the seizure list in respect of one white elastic hair band, one hair clip, one bidi, two elastic hair robbers and two matchsticks, Ext.13 is the dead body challan, Ext.14 and Ext.15 are the reports of D.F.S.L. on spot visit, Ext.16 is the forwarding letter of S.D.J.M., Puri, Ext.17 is the chemical examination report and Ext.18 is the serological examination report. The prosecution also proved eight material objects. M.O.I is the skirt, M.O.II is the panty, M.O.III is the clip, M.O.IV is the lungi, M.O.V is the ganji, M.O.VI is the gamuchha, M.O.VII is the hair band and M.O.VIII is the hair band robber. JCRLA No.123 of 2005 Page 8 of 36 Defence Plea: 6. The defence plea of the appellant was one of denial. The appellant stated that he saw the deceased struggling for her life and asking for water from a distance and rushed to her and on the request of an old couple, called the villagers to provide water to the deceased.
Facts
Findings of the Trial Court: 7. The learned trial Court, after assessing the oral as well as documentary evidence on record, came to hold on the basis of the evidence of the Medical Officer (P.W.9), the post mortem report findings (Ext.7) that the deceased was raped violently and murdered by strangulation. The time since death as opined by P.W.9 also pointed to the time of occurrence as alleged by the prosecution. The learned Court observed that there are no eye witnesses to the occurrence of rape and murder of the deceased and the prosecution relied on the circumstantial evidence available on record against the appellant. The learned Court was not able to accept the evidence of P.W.7 on its face value since he had turned hostile to the prosecution. Taking into account the evidence relating to extrajudicial confession, the Court held that the evidence of P.W.11, the Medical Officer, who examined the appellant coupled with the evidence of P.W.3 led JCRLA No.123 of 2005 Page 9 of 36 to the irresistible conclusion that the appellant confessed before the villagers that he raped the deceased and after committing rape, he apprehended danger of being exposed by the deceased and therefore, violently pressed her neck and chest, as a result of which, the deceased died. The Court further held that in view of the accused statement, it appears that before arrival of P.W.4 and P.W.7, the appellant was alone present with the deceased and his presence was detected both by P.W.4 and P.W.7 at the critical juncture of time when the deceased was bleeding from her private parts and mouth and grasping for life and that the appellant had tried to make out a story of going to the deceased hearing her shouting for water and struggling her life. The Court accepted the evidence of P.W.4 coupled with the evidence of P.W.2, P.W.3 and P.W.7 and came to the conclusion that the appellant being the culprit having committed rape, being apprehensive, pressed her neck forcibly to do away with the evidence available against him and that the circumstances available against the appellant are conclusively in nature and consistent only with the hypothesis of guilt of the appellant. The learned trial Court did not give much importance to the absence of mark of injuries on the person of the appellant as the appellant was not only accustomed to sexual act but also had taken bath and attended toilet before his examination by the JCRLA No.123 of 2005 Page 10 of 36 Medical Officer (P.W.11). It was held that some error relating to who arrived first and some contradictions and omissions which are not material to the prosecution case, are not sufficient to go to the root of the prosecution case to make it unworthy of credence. Accordingly, the appellant was found guilty under sections 376/302 of the I.P.C. Contentions of the Parties: 8.
Legal Reasoning
There is no dispute that the conduct of an accused at the spot refers to his action, statements and demeanour immediately before, during and after a crime which serve as crucial circumstantial evidence to determine guilt, motive. Relevant conduct includes fleeing the scene, destroying the JCRLA No.123 of 2005 Page 33 of 36 evidence or exhibiting unusual behaviour which can be admitted in Court in view of section 8 of the Evidence Act. However, when the spot in the case is an open place accessible to all, mere presence of the appellant at the crime scene is not enough to find him guilty particularly when he has offered some explanation relating to his presence which is corroborated by P.W.7. There was scope for the appellant to escape from the spot immediately after committing the crime, had he been the culprit. His presence at the spot till the witnesses arrived, asking for water to be given to the deceased rather proves his innocence. Moreover, the reaction of the appellant at the spot as deposed to by P.W.2 or P.W.4 alone cannot be the decisive factor to arrive at the conclusion that it was the appellant alone and none else who is the author of the crime. Human behaviour varies from man to man. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a man would behave in a particular situation, can never be predicted. Therefore, in absence of any other clinching evidence on record, the conduct of the appellant as deposed to by P.W.2 and P.W.4 is not sufficient to establish his guilt. JCRLA No.123 of 2005 Page 34 of 36 Chemical examination report/Serologist report finding: 14. Needless to say that the wearing apparels of the appellant, penile swab, saliva, pubic hair, nail clippings etc. alongwith the dress of the deceased were sent for chemical examination and neither any blood nor any semen nor saliva was found in it except the chadi of the deceased in which small amount of human blood could be noticed. However, no opinion could be given regarding its grouping. Therefore, it is rightly argued by the learned counsel for the appellant that the chemical examination report and the serologist report are no way helpful to the prosecution. Sum Up: 15. In view of the foregoing discussions, we are of the humble view that the circumstances available on record do not form a complete chain so as to come to an irresistible conclusion that it was the appellant, who is the author of the crime and therefore, the impugned judgment and order of conviction of the appellant under sections 302/376 of the I.P.C. is not sustainable in the eyes of law.
Arguments
Mr. Arun Kumar Das (1), learned counsel for the appellant contended that the learned trial Court, in absence of any direct evidence on record, was not justified in convicting the appellant basing on the circumstantial evidence on mere suspicion and surmises, which have no place in the criminal trial and the circumstances taken together do not form a complete chain to come to an irresistible conclusion that it was the appellant and appellant alone, who was the author of the crime. It is further argued that the learned trial Court has placed reliance on the extrajudicial confession stated to have been made before P.W.3 so also before the Medical Officer (P.W.11), who examined the appellant on police requisition, however it has been confronted to P.W.3 and proved through the I.O. (P.W.13) that he had not made any such statement relating to the extrajudicial confession before the I.O. and therefore, his JCRLA No.123 of 2005 Page 11 of 36 evidence in that respect for the first time in Court is not acceptable. It is further argued that even though the extrajudicial confession is stated to have been made on the village road in presence of the villagers after the appellant was brought by the villagers from the spot, but no other villager has supported such evidence. It is argued that the examination in- chief of the Medical Officer (P.W.11) is completely silent that the appellant made any extrajudicial confession before him and even in the two documents, which were prepared and proved by him i.e. Ext.9 and Ext.10, nowhere it is mentioned that the appellant made extrajudicial confession, rather in Ext.9 under the heading of brief history of the case as given by the examinee, it is mentioned that the person denied any involvement in the rape case rather he told that he had called the villagers after seeing the girl in the field. It is further argued that no doubt, in the cross-examination, P.W.11 has stated that the appellant before his examination stated before him (P.W.11) that he was involved in the rape and murder, but seeing the victim, he called the villagers, but the evidence of the doctor on this score is not acceptable and perhaps one word „not‟ has been inadvertently omitted while recording the evidence of P.W.11 in the cross- examination. No question has also been put to the appellant in his 313 Cr.P.C. statement relating to this extrajudicial confession JCRLA No.123 of 2005 Page 12 of 36 given before P.W.11 and therefore, the learned trial Court should not have utilized this evidence. It is further argued by the learned counsel for the appellant that though from the evidence of P.W.4 and P.W.7, the presence of the appellant near the spot is forthcoming, but the appellant has stated in his accused statement that seeing the deceased in a critical condition and asking for water at the spot, he came near her and at that time, one old couple reached there and they also told him to bring some water for which he called the villagers. Thus, the appellant has given his explanation regarding his presence at the spot and P.W.7 supports the stand taken by the appellant in his accused statement. It is further argued that the chemical examination report and the serologist report are no way helpful to the prosecution 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 the conduct of the appellant at the spot as deposed to by P.W.2 and P.W.4 reflect his guilty state of mind. P.W.2 has stated that when the deceased was lying at the spot and bleeding from her private parts, face and mouth and having JCRLA No.123 of 2005 Page 13 of 36 tooth biting marks on her cheeks, the appellant was present there and he was nervous and sweating. Similarly, P.W.4, the mother of the deceased has stated that when she found the deceased was lying near the banyan tree with bleeding from her private parts and marks of injuries on other parts of her body, the appellant was found standing nearby and when she shouted and the villagers came there, the appellant seeing the villagers, tried to run away but the villagers caught hold of him and brought him to the village. According to the learned counsel for the State, if the appellant was trying to save the life of the deceased by collecting water asked for by the deceased, he would not have felt nervous and sweating or tried to run away seeing the villagers rather he would have disclosed before them how he detected the deceased and what he had seen and how he was asked by the deceased to bring water. The conduct of the appellant is very suspicious and his presence at the scene of occurrence having not been properly explained, the learned trial Court has rightly found him guilty particularly taking into account the extrajudicial confession before P.W.3 and P.W.11 and therefore, there is no merit in the appeal and it should be dismissed. JCRLA No.123 of 2005 Page 14 of 36 Whether the deceased met with a homicidal death?: 9. Adverting to the contentions raised by the learned counsel for the respective parties, let us first discuss the evidence on record as to whether the prosecution has successfully proved that the deceased met with a homicidal death. In this context, the evidence of the doctor (P.W.9), who conducted post-mortem examination on 23.05.2003 over the dead body of the deceased is very relevant. He stated to have noticed the following injuries:- “(i) Organs of generation, the hymen recently ruptured with torn pieces adherent to the walls of the opening looking raw and red and presence of red ecchymosis to the extent of 1/2” to 1½” around the opening, which admits passage of two fingers and presence of traces of blood on vaginal cavity; (ii) Livid black area of contusion present involving the entire front and sides of the neck including the chin and upper portion of chest wall over the level of breast. On dissection, there is (i) deep dark red ecchymosis and extravasation of blood in the underneath muscles and tissues (ii) breadth wise fracture of sternum bone at a level between its upper two- third and lower one-third with surrounding JCRLA No.123 of 2005 Page 15 of 36 ecchymosis (iii) fracture of third-fourth and fifth rib at mid-colour bone line with surrounding ecchymosis (iv) bleeding into plural and test cavity; (iii) Dark red bruise 1” x 1” irregular, 1” away to outer-angle of right eye; (iv) Dark red bruise 1/2” x 1/8” on right side 2” out of the angle of mouth; (v) A small right wards curved abrasion of 1/2” size looking dark red and dry on the space between the breast with an area of livid black bruising to the extent of 2” x 2” irregular with underneath tissue ecchymosis; (vi) Ants swarming all over the body with post- mortem ant-bite marks looking pale to white and pitted discrete to confluent present on front and sides of neck and chest above level of breast middle of left buttock torn area of 2” x 2”, inner side of both thigh to the extent 2” x 1/4” length wise oblique closely below middle of base line and inner aspect of right thigh at middle of its upper thigh and inner side of left nipple, millet seed size; (vii) The lower forth of lesser curvature of stomach and the surrounding mesentery of transverse colon are deeply contused to the extent 3” x 2” with presence of red fluid blood in the abdominal cavity to an extent about 2”.” JCRLA No.123 of 2005 Page 16 of 36 P.W.9 opined that the cause of death was due to haemorrhage and shock combined with asphyxia and time since death was within 18 to 24 hours. In the cross-examination, the doctor has stated that the death was due to failure of respiration caused by asphyxia resulted from compression of neck, chest and abdomen. He further opined that the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. According to the doctor, injury no.1 appeared to have been caused by entrance of a firm, smooth and straight object of two fingers breadth into vagina. Other injuries were caused as a result of compression by some hard and blunt object over the neck, chest and abdomen. P.W.13 made some queries in the dead body challan and accordingly, P.W.9 gave the following answers to the queries:- “(i) The age of deceased will be around 13 years as per her general physical and dental finding; (ii) No foreign hair detected to be sticking to the body of deceased; (iii) Injury No.1 could be suggestive of a recent sexual intercourse. However, opinion as to rape would be corroborated by examination report of the wearing apparels and vaginal swabs to be definitely; JCRLA No.123 of 2005 Page 17 of 36 (iv) Stains of blood, saliva and semen are not visible at present on the body of the deceased and presence of spermatozoa in vaginal canal could be opined after pathological test report of the vaginal swab.” P.W.9 proved the post mortem report vide Ext.7. He further opined that the injury on the cheek and neck could be possible during the course of rape. The injury on neck and chest were stated to be the cause of death and were ante mortem in nature. The doctor further opined that from the examination of the teeth of the deceased, he ascertained her age to be around 13 years at the time of his post mortem examination. No foreign hair detected to be sticking to the body of the deceased. The injury no.1 could be suggestive of a recent sexual intercourse. However, opinion as to rape would be corroborated by examination report of the wearing apparels and vaginal swabs to be definitely. The doctor further observed that stains of blood, saliva and semen were not visible on the body of the deceased and presence of spermatozoa in the vaginal canal could be opined after pathological test report of the vaginal swab. The doctor proved the post mortem report as Ext.7. The doctor further opined that axillary hairs not appeared, pubic hairs small, sparse, brownish breast well developed, circular, non-pendulous JCRLA No.123 of 2005 Page 18 of 36 with small pointed nipples, from which her age was ascertained to be 13 years. After going through the evidence on record, more particularly, the inquest report (Ext.2), the evidence of the doctor (P.W.9) and the post mortem report findings vide Ext.7, we are of the humble view that the learned trial Court has rightly came to the conclusion that the deceased met with a homicidal death. The learned counsel for the appellant has also not disputed the finding of the learned trial Court in that respect. Similarly, in view of the injuries noticed on the private parts of the deceased and that her hymen was ruptured into pieces as stated by the doctor in the cross-examination and the manner in which the deceased was lying at the spot, we are of the view that the learned trial Court has rightly came to the conclusion that the deceased was raped violently. This finding has also not been challenged by the learned counsel for the appellant. Principles for appreciation of case based on circumstantial evidence: 10. Admittedly, there is no direct evidence relating to the commission of murder of the deceased and the case is based on circumstantial evidence and the law relating to the basing JCRLA No.123 of 2005 Page 19 of 36 conviction on circumstantial evidence is clear in view of the five golden principles laid down by the Hon‟ble Supreme Court in the case of Sharad Birdhichand Sarda -Vrs.- State of Maharashtra reported in A.I.R. 1984 S.C. 1622, that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) 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; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) 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. JCRLA No.123 of 2005 Page 20 of 36 These five golden principles, according to the Hon‟ble Supreme Court, constitute the panchsheel of the proof of a case based on circumstantial evidence. It is thus clear that even in the absence of direct evidence, if various circumstances relied on by the prosecution relating to the guilt of the accused are fully established beyond all reasonable doubt and the chain of events are complete, the Court is free to award conviction on the basis of such circumstantial evidence. In the case of Kishore Chand -Vrs.- State of Himachal Pradesh reported in (1991) 1 Supreme Court Cases 286, the Hon‟ble Supreme Court held as follows: “4. The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved JCRLA No.123 of 2005 Page 21 of 36 circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis.” In the case of Gambhir -Vrs.- State of Maharashtra reported in (1982) 2 Supreme Court Cases 351, the Hon‟ble Supreme Court held as follows: “9. It has already been pointed out that there is no direct evidence of eye witness in this case and the case is based only on circumstantial evidence. The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain JCRLA No.123 of 2005 Page 22 of 36 conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” In a case based on circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court has to be watchful and ensure that suspicion, howsoever strong, should not be allowed to take the place of proof. A moral opinion, howsoever strong or genuine and suspicion, howsoever grave, cannot substitute a legal proof. A very careful, cautious and meticulous appreciation of evidence is necessary when the case is based on circumstantial evidence. The prosecution must elevate its case from the realm of „may be true‟ to the plane of „must be true‟. The core principles which need to be adhered to by the Court, while examining and appreciating circumstantial evidence, have been strenuously discussed by the Hon‟ble Supreme Court in the case of Devi Lal -Vrs.- State of Rajasthan reported in (2019) 19 Supreme Court Cases 447 in the following words: JCRLA No.123 of 2005 Page 23 of 36 “17……It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straitjacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.” In the case of Jaharlal Das -Vrs.- State of Orissa reported in A.I.R. 1991 S.C. 1388, it is held as follows: "The Court has to bear in mind a caution that 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 Court must satisfy itself that the various circumstances in the chain of JCRLA No.123 of 2005 Page 24 of 36 evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused". In case of Budhuram -Vrs.- State of Chhattisgarh reported in (2012) 11 Supreme Court Cases 588, it is held as follows: "12. The law relating to proof of a criminal charge by means of circumstantial evidence would hardly require any reiteration, save and except that the incriminating circumstances against the accused, on being proved, must be capable of pointing to only one direction and to no other, namely, that it is the accused and nobody else who had committed the crime. If the proved circumstances are capable of admitting any other conclusion inconsistent with the guilt of the accused, the accused must have the benefit of the same." Keeping in view the ratio laid down in the aforesaid decisions of Supreme Court, the evidence on record needs to be analysed to see how far the prosecution has proved the circumstances as enumerated by the learned trial Court and whether the circumstances taken together form a complete chain to come to the irresistible conclusion that the appellant is the perpetrator of the crime in question. JCRLA No.123 of 2005 Page 25 of 36 Extrajudicial Confession: 11. In the case in hand, the learned trial Court has observed in the impugned judgment that in order to prove the charges against the appellant, the prosecution case is mainly based on the extrajudicial confession made by the appellant before P.W.3 and P.W.11. It is apparent that from the first information report that after the extrajudicial confession was stated to be made in the village in presence of the villagers, the first information report (Ext.1) was lodged by P.W.4 being scribed by P.W.1. However, in the first information report, there is no whisper that the appellant made any extrajudicial confession before the villagers regarding the commission of the crime. P.W.3 has stated that on the date of occurrence, on hearing the hue and cry, he went to the spot and found that the deceased was lying dead near „Fasidia Baragachha‟ and the mother of the deceased was shouting. He further stated that the villagers thereafter brought the appellant and the deceased towards the village and in the village danda, in presence of the villagers and himself, the appellant disclosed that he raped the deceased and being apprehensive of disclosure of the incident by JCRLA No.123 of 2005 Page 26 of 36 the deceased, he pressed the neck of the deceased and murdered her. It has been confronted to P.W.3 in the cross- examination and proved through the I.O. (P.W.13) that he had not stated to have heard the appellant disclosing that he raped and murdered the deceased. Therefore, even though no such statement has been made by P.W.3 before the I.O. regarding the extrajudicial confession made by the appellant, for the first time during trial, he has stated so. None of the villagers before whom the so-called extrajudicial confession is stated to have been made, has been examined to corroborate the evidence of P.W.3. Therefore, it is difficult to place reliance on the evidence of P.W.3 regarding extrajudicial confession. The learned trial Court has also placed reliance on the evidence of P.W.11, the Medical Officer who examined the appellant on police requisition and stated that the appellant before his examination, stated before him that he was involved in the rape and murder of the victim, but seeing the victim, he called the villagers. Needless to say that in the examination in- chief, P.W.11 has not stated that extrajudicial confession was made by the appellant. He proved three documents, out of which Ext.9 and Ext.10 are his own reports but in none of these JCRLA No.123 of 2005 Page 27 of 36 documents, there is any mention that the appellants made any confession rather in Ext.9, under the heading of brief history of the case as given by the appellant, it is mentioned as follows:- “The person denied any involvement in the rape case. Rather he told that he has called the villagers after seeing the girl in the field.” Therefore, it seems that the learned defence counsel was bringing to the notice of the doctor about what he had mentioned in Ext.9 regarding the statement made by the appellant before him, but the learned trial Judge seems to have omitted one „not‟ in that particular sentence and as such it would have been „he was not involved‟, but it became „he was involved‟. There was no reason for the learned defence counsel otherwise to put this question to the doctor who had not stated anything regarding the extrajudicial confession in his examination in-chief, nor there is anything in that respect in the documents prepared by him. It is also very difficult to place reliance on this stray sentence in the cross-examination of the doctor which goes contrary to his own documents and it is also very difficult to believe that he would be remembering an extrajudicial confession made by any person like the appellant JCRLA No.123 of 2005 Page 28 of 36 examined by him after a long gap particularly when he had not mentioned it anywhere in his reports. Moreover, the incriminating materials such as the extrajudicial confession had not been put to the appellant in his accused statement. Law is well settled that incriminating material found against an accused must be put to him during his statement recorded u/s 313 of CrP.C. for a fair defence, failure to do so means that material should not be used, leading to its exclusion from evidence, as it is a core principle of natural justice (audi alteram partem) ensuring the accused explains the evidence against him, though his explanation or silence can lead to adverse inferences if false or unexplained. Object and purpose of 313 Cr.P.C. in recording accused statement is to afford an opportunity to him personally to explain any circumstances appearing in the evidence against him at the trial. It is not a mere formality rather the answers given by the accused to the questions put to him during such examination have a practical utility for criminal courts. Therefore, the attention of the accused is to be drawn to the circumstance and circumstantial evidence in relation to the offence to which he has been charged and invite his explanation. The questions must be framed in a such a way so as to enable the accused to know what he is to explain JCRLA No.123 of 2005 Page 29 of 36 and what are the circumstances which are against him and for which an explanation is needed. Conviction based on the failure of the accused to explain what he was never asked to explain is bad in law. The questioning must be fair and couched and be in a form which an ignorant or illiterate person will be able to appreciate and understand. Of course, the burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice. It is a settled principle of criminal jurisprudence that extrajudicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a 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 suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. JCRLA No.123 of 2005 Page 30 of 36 Therefore, we are of the view, that the learned trial Court was not justified in placing reliance on the evidence of P.W.3 as well as P.W.11 relating to the extrajudicial confession and we are not inclined to place any reliance on the evidence of extrajudicial confession. Presence of the appellant at the scene of occurrence: 12. If the evidence relating to extra judicial confession is taken out of consideration, then the evidence remains is the presence of the appellant at the scene of the occurrence where the deceased was lying having injuries on her private parts and other parts of the body. The appellant in the accused statement, has given an explanation in question no.24 that from a distance, he could notice that the deceased was in a wriggling condition and asking for water and accordingly, he came near her and at that time, one old couple reached at that place and they also asked him (appellant) to bring water and accordingly, he called the villagers. P.W.7 has stated while he was returning to his village with his wife through the deep ditch, he saw the appellant standing near a banyan tree and hurling for little water. He further stated that he asked the appellant to go a little more JCRLA No.123 of 2005 Page 31 of 36 distance and ask someone to bring water and that he himself saw the deceased lying in a serious condition and asking for water, but as there was no water nearby, he could not give water. Of course, this witness has been declared hostile by the prosecution, but he has stated on being declared hostile to the Prosecutor that when he arrived at the spot, the appellant stated that the deceased was crying and asking for water. Law is well settled that merely because a witness is declared hostile, his entire testimony cannot be excluded from consideration. In a criminal trial, where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence, cannot as matter of general rule be treated as washed off the record altogether. It is for the Court to consider the facts in each case whether as a result of such cross- examination and contradiction; the witness stands discredited or still stands to be believed in regard to the part of any of his testimonies. In appropriate cases, the Court can rely on the part of the testimony of such witnesses if such part of the deposition is found to be creditworthy. Therefore, the stand taken by the appellant that he was looking for water as the deceased told him being in critical condition and that he met an old couple (which is P.W.7 and his wife) is getting corroboration from the evidence of P.W.7. Therefore, there was no reason on the part of the learned JCRLA No.123 of 2005 Page 32 of 36 trial Court to disbelieve and discard the explanation of the appellant. Conduct of the appellant at the scene of occurrence: 13. P.W.2 has stated that when he came to the place of the occurrence which was near the banyan tree and found the deceased lying there with bleeding injuries on the different parts of her body including private parts, the appellant was present there and he was very nervous and sweating. Similarly, P.W.4 has stated that when she was coming shouting the deceased by her name and arrived near the banyan tree and found her daughter was lying with bleeding injuries, the appellant was standing nearby her and that she shouted for help and hearing her shout, when the villagers came, the appellant was trying to run away seeing the villagers, but the villagers caught hold of him. However, none of the villagers have stated that the appellant was trying to run away and that they caught hold of him.
Decision
In the result, the JCRLA is allowed and the impugned judgment and the order of conviction and the sentence passed JCRLA No.123 of 2005 Page 35 of 36 thereunder is hereby set aside and the appellant is acquitted of the charges under sections 302/376 of the I.P.C. The appellant is on bail by virtue of the order of this Court. He is discharged from the liability of bail bonds. The personal bonds and the surety bonds stand cancelled. Before parting with the case, we would like to put on record our appreciation to Mr. Arun Kumar Das (1), learned counsel appearing for the appellant for rendering his valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Jateswar Nayak, learned Additional Government Advocate. The trial Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. C.R. Dash, J. I agree .......................... S.K. Sahoo, J. .................................. Chittaranjan Dash, J. Orissa High Court, Cuttack The 17th December, 2025/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Dec-2025 15:29:37 Page 36 of 36 JCRLA No.123 of 2005