The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.58 of 2006 An appeal under section 374 of Cr.P.C. from the judgment and order dated 06.10.2005 passed by the Adhoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.109/79 of 2004-03. ------------------------- Kathu Karua ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Debi Prasad Dhal Senior Advocate Mr. B.S. Dasparida Advocate For Respondent: - Mr. Aurovinda Mohanty Addl. Standing Counsel CRLA No.450 of 2005 Ramesh Apat ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Mr. Debi Prasad Dhal Senior Advocate (Amicus Curiae) For Respondent: - Mr. Aurovinda Mohanty Addl. Standing Counsel ------------------------- Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Dec-2025 14:15:48 JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 1 of 50 P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH ----------------------------------------------------------------------------------------------------------------------- Date of Hearing: 16.12.2025 Date of Judgment: 23.12.2025 --------------------------------------------------------------------------------------- -------------------------------- S.K. Sahoo, J.: The appellant Kathu Karua in JCRLA No.58 of 2006 and the appellant Ramesh Apat in CRLA No.450 of 2005 along with co-accused Dadu @ Anil Patra faced trial in the Court of learned Adhoc Additional Sessions Judge (F.T.), Champua in S.T. Case No.109/79 of 2004-03 for offences punishable under section 376(2)(g), 302/34 and 201/34 of the Indian Penal Code (hereinafter „I.P.C.‟) on the accusation that on 22.08.2002 at Kamarjoda tank under Joda police station, they committed gang rape on „BN‟ (hereinafter, „the deceased‟) and intentionally committed her murder in furtherance of their common intention and that knowing or having reason to believe that the offence of gang rape and murder had been committed, caused certain evidence connected with the said gang rape and murder to disappear by throwing the dead body near Kamarjoda tank inside the putus bushes with intention to screen themselves from legal punishment in furtherance of their common intention. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 2 of 50 The learned trial Court vide impugned judgment and order dated 06.10.2005 though acquitted the co-accused Dadu @ Anil Patra of the offences charged, but found both the appellants guilty of the offences charged and sentenced each of them to undergo R.I. for a period of ten years for the offence under section 376(2)(g) of the I.P.C., R.I. for life and to pay a fine of Rs.5,000/- (rupees five thousand) for the offence under section 302/34 of the I.P.C. and R.I. for a period of three years and to pay a fine of Rs.1,000/- (rupees one thousand) for the offence under section 201/34 of the I.P.C. and all the sentences were directed to run concurrently. Since both the appeals arise out of same judgment, with the consent of learned counsel for the respective parties, those are heard analogously and disposed of by this common judgment. Prosecution Case: 2. The prosecution case as per the first information report (hereinafter, „F.I.R.‟) (Ext.1) lodged by P.W.1 Pabitra Naik, the brother-in-law of the deceased on 23.08.2002 at about 9.15 a.m. before the Officer in-charge of Joda police station (P.W.10), in short, is that he had been residing at Banspani Coal Hutting since last twenty five years. On 22.08.2002 at about JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 3 of 50 3.00 p.m., he returned home after finishing his duties from S. lal Mines, Joda and at about 9.00 p.m., his mother-in-law Srimati Naik came to his house and told him that her daughter-in-law (deceased), who was also the sister-in-law (Sala bhauja) of P.W.1, had been to Kamarjoda in order to tie Rakhi to his God brother Surendra Mohanty at about 4.00 p.m. leaving her two children in the house, but she did not return home. Upon hearing this from his mother-in-law Srimati Naik, P.W.1 went to the house of Surendra Mohanty but came to know from him that the deceased had not come there and then he asked Bhuban Penthei and some other persons from the locality regarding the whereabout of the deceased but he could not ascertain any whereabouts of the deceased and then he returned to the house and slept. On the next morning i.e. on 23.08.2002 at about 6.00 a.m., P.W.1 got an information from one Geeta Munda (P.W.5) that a woman was lying unconscious inside the putus bushes below the ridges of Kamarjoda embankment. Then P.W.1 along with Rudra Gopa and Mohan Karua came to that spot and found the deceased was lying dead inside the putus bushes and she was in a naked condition and blood was oozing from her nose and eyes and that her napkin and chappals were lying at a little distance so also her plastic bag and Rakhies. Seeing the dead body of the deceased, P.W.1 strongly suspected that somebody JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 4 of 50 had committed rape on her and then committed her murder. After returning from the spot, P.W.1 told the incident before his wife (P.W.4), his mother-in-law, P.W.5 and also before other villagers and then the villagers immediately rushed to the spot and made a scrutiny as to who committed the offence and in that process, the villagers suspected involvement of the two appellants in the crime and took them to Giri Babu (P.W.3), the village Mukhia. The appellants were interrogated by P.W.3 and other villagers about the occurrence and then the appellants were taken to the police station, but prior to their arrival, P.W.1 came with his wife (P.W.4) to the police station and orally reported the matter. P.W.10 Prakash Kumar Naik, the Officer in-charge of Joda police station reduced the oral report of P.W.1 into writing and read over the same to him and finding the same to have been correctly written, P.W.1 put his signature in the report. As the above report revealed a cognizable case under sections 376/302/201 of the I.P.C., P.W.10 treated the report as F.I.R. (Ext.1) and registered the same as Joda P.S. Case No.126 dated 23.08.2002 and he himself took up investigation of the case. During course of investigation, P.W.10, the I.O. examined the informant (P.W.1) and accompanying witness JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 5 of 50 Purnima Naik (P.W.4) on the same day. P.W.3, P.W.5 and others came to the police station and produced appellants Kathu Karua and Ramesh Apat before P.W.10. P.W.10 thereafter examined both the appellants and also examined Girish Chandra Mohanty (P.W.3) and visited the spot and prepared the spot map vide Ext.7. The dead body of the deceased was lying at the spot with her wearing apparels folded on her chest and the entire body up to her chest was naked and he also found one napkin and a pair of plastic chappal, one plastic bag containing Rakhi near the spot and there was dragging mark from the embankment up to the place where the dead body was lying and the putus bushes were found to have been disturbed and there was blood stains at the spot. P.W.10 held inquest over the dead body of the deceased at the spot in presence of the witnesses and prepared the inquest report Ext.2. He seized the plastic bag containing Rakhi, a pair of hawai chappal, one brown colour napkin, some blood-stained earth and sample earth and prepared seizure list Ext.6. P.W.10 dispatched the dead body of the deceased to Govt. Hospital, Barbil for post mortem examination through constable C/247 R.K. Sahoo and at about 2.00 p.m., co-accused Dadu @ Anil Patra voluntarily surrendered before P.W.10 at the police station and he was examined and on the same day at about 3.00 p.m., P.W.10 arrested both the appellants and the co-accused and at JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 6 of 50 3.15 p.m., he seized the wearing napkin of the co-accused suspected to be stained with semen and blood and prepared the seizure list Ext.3 and at about 3.30 p.m., he seized the wearing check napkin of appellant Ramesh Apat suspected to be stained with semen and blood and prepared the seizure list Ext.4 and similarly, he also seized the wearing blue colour nicker of appellant Kathu Karua suspected to be stained with semen and blood and prepared the seizure list Ext.5. At about 4.00 p.m., P.W.10 sent both the appellants and the co-accused to the Government Hospital, Joda under three separate requisitions for collection of their sample blood and nail clippings, pubic hairs and other medico legal points through A.S.I. B.K. Tripathy. P.W.10 also seized the wearing apparels of the deceased on production by the constable after the post mortem examination over the dead body was over and prepared the seizure list Ext.12 and examined other witnesses. P.W.10 seized the sample blood, sample semen, nail clippings, sample pubic hairs of both the appellants and the co-accused and kept it in separate vials after collection of same by M.O., Govt. Hospital, Joda on production by A.S.I. B.K. Tripathy and prepared the seizure list Ext.13. On 24.08.2002 at about 1 p.m., P.W.10 forwarded both the appellants and the co-accused Dadu JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 7 of 50 @ Anil Patra to the Court of learned J.M.F.C., Barbil in custody with a prayer to record their confessional statements under section 164 Cr.P.C. On 12.11.2002, he made a prayer before the learned J.M.F.C., Barbil to dispatch the seized articles to S.F.S.L., Rasulgarh for chemical examination. On 24.08.2002, P.W.10 received the post mortem examination report and on 27.11.2002, he made a query to P.W.11, who conducted the post mortem examination over the dead body of the deceased to opine whether the injuries found over the dead body of the deceased could be possible by small boulder or stones and whether the injuries found on the person of the deceased could be possible during sexual assault and the Medical Officer gave his opinion vide query report Ext.16/2. On completion of investigation, P.W.10 submitted charge sheet against both the appellants and the co-accused Dadu @ Anil Patra on 06.12.2002 under sections 376(2)(g)/302/201/34 of the I.P.C. Framing of Charges: 3. 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 both the appellants and the co-accused as aforesaid and since the appellants and the co-accused refuted the charges, pleaded not JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 8 of 50 guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute them and establish their 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 Pabitra Naik is the brother-in-law of the deceased and also the informant in the case. He supported the prosecution case. P.W.2 Bhaskar Karua and P.W.3 Giridhari Mohanty did not support the prosecution case for which they were declared hostile by the prosecution. P.W.4 Purnima Naik is the wife of P.W.1 and sister- in-law (brother‟s wife) of the deceased. She stated that the deceased went to a neighbouring village on Rakhi Purnima to tie Rakhi but her mother informed her in the evening hour on the date of occurrence that the deceased did not return home and thereafter, her husband (P.W.1) went in search of the deceased but could not found her. She further stated that she came to know from P.W.5 and P.W.8 that a female had been killed and her dead body was lying by the side of the embankment and JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 9 of 50 thereafter, she along with others went to the spot and identified the dead body to be that of the deceased and that the dead body was lying in a naked condition and there was bleeding injuries from her eye lids and nostrils and she guessed that the deceased was being raped and killed and thereafter, on the query of the villagers, it came to her knowledge that the appellant Kathu Karua was the perpetrator of the crime and on interrogation, he confessed his guilt of committing rape and murder of the deceased along with appellant Ramesh Apat and the co-accused. P.W.5 Geeta Champia, P.W.7 Malati Naik and P.W.8 Kamala Gope are the witnesses to the extrajudicial confession made by appellant Kathu Karua and they supported the prosecution case. P.W.6 Ramachandra Naik partly supported the prosecution case for which he was declared hostile by the prosecution. P.W.9 Babulu Patra is a star witness but did not support the prosecution case for which he was declared hostile by the prosecution. On being cross-examined by prosecutor, he supported the prosecution case. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 10 of 50 P.W.10 Prakash Kumar Naik was the Officer in- charge of Joda police station, who is the Investigating Officer of the case. P.W.11 Dr. Satyabrata Panda was the Assistant Surgeon at Government Hospital, Barbil, who on police requisition, conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.17. He also proved his opinion on the query by P.W.10 vide Ext.16/2. P.W.12 Dr. Jagdish Prasad Sahoo was the Medical Officer at Government Hospital, Joda, who on police requisition, examined both the appellants and the co-accused and proved his reports vide Ext.9/2, Ext.10/2 & Ext.11/2. The prosecution exhibited eighteen documents. Ext.1 is the F.I.R., Ext.2 is the inquest report, Exts.3, 4, 5, 6, 12 and 13 are the seizure lists in respect of the seizure of different articles, Ext.7 is the spot map, Ext.8 is the dead body challan, Ext.9/2 is the medical examination report of co-accused Dadu @ Anil Patra, Ext.10/2 is the medical examination report of appellant Ramesh Apat, Ext.11/2 is the medical examination report of appellant Kathu Karua, Ext.14 is the prayer of the I.O. to send the seized articles for chemical examination, Ext.15 is the forwarding report, Ext.16 is the query of the I.O. regarding JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 11 of 50 rape and murder of the deceased, Ext.17 is the post mortem report and Ext.18 is the chemical examination report. The prosecution has also proved nine material objects. M.O.I is the printed saree, M.O.II is the reddish pink colour saya, M.O.III is the black blouse, M.O.IV is the brown napkin, M.O.V is the brown check napkin, M.O.VI check napkin, M.O.VII is the blue half pant, M.O.VIII is the Rakhi and M.O.IX is a pair of hawai chappal. Defence Plea: 5. The defence plea of the appellants is one of denial and false implication in this case. Defence has neither examined any witness nor exhibited any document.
Facts
Findings of the Trial Court: 6. The learned trial Court, after assessing the oral as well as documentary evidence on record, particularly the evidence of the Medical Officer (P.W.11) and the post mortem report finding vide Ext.17, came to hold that the deceased met with a homicidal death. The Court observed that there are no eye witnesses to the occurrence of rape and murder of the deceased and the prosecution relies on the circumstantial evidence available on record against the appellants. The learned JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 12 of 50 trial Court further taking into account the evidence of the independent witnesses, the I.O. (P.W.10) and the medical evidence (P.W.11) coupled with the admitted fact that the deceased was a middle-aged widow and the dead body of the deceased was lying in a half-naked condition inside the putus bushes below the ridges of the embankment came to the conclusion that she had been gang raped prior to her death. The learned trial Court after close scrutiny of the evidence on record indicated the following circumstances emerged against the appellants: “(i) The deceased left her house at about 4.00 p.m. on 22.08.2002 and went to Kamarjoda to tie Rakhi on the hand of his God brother; (ii) There is an embankment which runs in between Banspani where the deceased was residing at the time of occurrence and Kamarjoda, her proposed destination; (iii) The deceased did not return home in the intervening night of 22/23.08.2002; (iv) The dead body of the deceased was found inside a lonely and isolated place i.e. the putus bushes below the ridges of the embankment which runs from Banspani to Kamarjoda; JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 13 of 50 (v) The dead body of the deceased was lying half naked and there were no clothing up to her waist and her wearing apparels were folded on the upper parts of her waist and there were injuries on her face, eyes and head; (vi) The deceased died within a few hours of her departure from her house; (vii) There were dragging marks on the embankment ridges near the spot where the dead body was lying; (viii) Bablu Patra (P.W.9) was passing through that embankment on the date of occurrence at about 4.00 to 5.00 p.m. and he heard the
Legal Reasoning
by the appellant Kathu Karua and therefore, we are of the view that reliance can be placed on such confession. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 42 of 50 P.W.7 has stated that she along with other villagers went to the house of appellant Kathu Karua and to their questions, appellant Kathu confessed that he along with appellant Ramesh Apat and the co-accused had committed rape and murder of the deceased and thereafter all the villagers including she herself took the appellant Kathu Karua to Giri Babu (P.W.3) and there also the appellant Kathu confessed his guilt. It has been confronted to P.W.7 and proved through the I.O. that P.W.7 had not stated before him about the confessional statement of appellant Kathu Karua in her presence, however, she has stated regarding such confession being made in presence of Giri Babu (P.W.3). P.W.8 has stated that when he along with some villagers went to the house of appellant Kathu Karua, there the appellant Kathu Karua confessed that he along with appellant Ramesh Apat had committed rape and murder of the deceased at the embankment side near putus bushes. There is no contradiction so far as this statement is concerned. Nothing has been elicited also in the cross-examination to disbelieve the extrajudicial confession. Therefore, even if the evidence of P.W.4 relating to the extrajudicial confession made by Kathu Karua is discarded in JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 43 of 50 view of the reasons assigned, but the evidence of P.Ws.5, 7 & 8 relating to the extrajudicial confession can be safely acted upon. However, not a single witness has stated about any extrajudicial confession being made by the appellant Ramesh Apat. It is pertinent to note that one blue half pant (nicker) was seized from the appellant Kathu Karua by the I.O. (P.W.10) suspecting to be stained with semen and blood as per seizure list Ext.5 and it was sent for chemical examination and human blood of „A‟ Group was found on it, which was also found in the printed and check saree, coloured saya and black blouse of the deceased and specific question has been put to the appellant Kathu Karua in his accused statement as Question No.21 and he has admitted the same. No explanation has been given by the appellant Kathu Karua in this respect. Even though, the blood of the appellant Kathu Karua has not been examined, but it is of no consequence as he has not taken any plea that he had sustained any injury at the time of occurrence and that it was his own blood which was sticking to his nicker. Moreover, P.W.12, the Medical Officer, who examined him on police requisition, has specifically stated that there were only two abrasions, one on the back left side and another on the middle of the back, which have been opined to be simple in nature. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 44 of 50 Therefore, the evidence on record clearly establishes that the appellant Kathu Karua was found in a naked condition inside putus bushes where the dead body of the deceased was lying in a half-naked condition and that the deceased was found to be raped and she died a homicidal death and that the appellant made extrajudicial confession before the villagers and that from his wearing apparel, human blood of Group A was found, which was also found in the wearing apparels of the deceased. We are of the humble view that these circumstances have been cogently and firmly established and these circumstances are of a definite tendency unerringly pointing towards guilt of the appellant and that the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the appellant and none else. Appellant Ramesh Apat: 11. So far as the complicity of the appellant Ramesh Apat is concerned, except the extrajudicial confessional statement of appellant Kathu Karua, there is no other evidence against him. As we have already stated that though P.W.9 has stated the presence of the appellant Ramesh Apat at the embankment, but he has stated that the said appellant was chasing the goats. The JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 45 of 50 appellant was not seen near the deceased or inside the putus bushes and there is also no evidence that he made any extrajudicial confession before anyone. Section 30 of the Evidence Act indicates that confession of co-accused can be considered when he is jointly tried with the other accused and he makes a statement incriminating himself along with the other accused. In the case of Hari Charan Kurmi -Vrs.- State of Bihar reported in A.I.R. 1964 SC 1184, it has been held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. It is further held that the statements contained in the confession of the co-accused persons stand on a different footing. In cases, where such confessions are relied JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 46 of 50 upon by the prosecution against an accused, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. Thus, the confession of the co-accused cannot be treated as substantive evidence in dealing with a case against the accused and the Court must start with other evidence adduced by the prosecution and after forming its opinion with regard to the guilt and effect of the said evidence can turn to the confession in order to get assurance to the conclusion of guilt, if the judicial mind is about to reach on the said other evidence. In view of the available materials on record, since except the confessional statement of appellant Kathu Karua before the witnesses, there is no other material against the appellant Ramesh Apat, we are of the humble view that the conviction of the appellant Ramesh Apat under sections 376(2)(g), 302/34 & 201/34 of I.P.C. cannot be sustained in the eyes of law and the same is hereby set aside. Sum Up: 12. In view of the foregoing discussions, we are of the humble view that the learned trial Court has rightly found the appellant Kathu Karua guilty. Even though there is no direct JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 47 of 50 evidence in the case, but from the circumstantial evidence on record, it is clearly established that the appellant Kathu Karua committed rape on the deceased and in order to screen himself from the legal punishment for the offence of committing rape, he killed the deceased in order to wipe out the evidence and
Arguments
sound of shrinking of „OON AAN‟ from the putus bushes below the embankment and he saw appellant Kathu Karua standing naked inside the putus bushes and he also saw the hair and blouse of a woman who was lying inside the putus bushes and that appellant Kathu was standing at the side of that female being naked; (ix) The extrajudicial confession of accused Kathu Karua and Ramesh Apat.” After discussing the circumstances, the learned trial Court held that the prosecution has well proved the circumstances that the appellant Kathua Karua was seen in the same putus bushes where the deceased was lying at about 4.00 JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 14 of 50 to 5.00 p.m. on 22.08.2002 and where her dead body was detected in the early morning of 23.08.2002 and that the presence of appellant Ramesh Apat and the co-accused nearby the putus bushes have been unerringly established. The learned trial Court further held that P.W.2 and P.W.3 have suppressed their knowledge regarding the extrajudicial confession of both the appellants and the evidence of P.Ws.2 and 3 will no way ruin the case of prosecution as the factum of extrajudicial confession has been well proved by other independent witnesses and particularly by P.W.8 and the materials in the case record is completely silent that P.W.8 had got any motive for falsely implicating both the appellants and the co-accused in the case. The learned trial Court further held that the extrajudicial confession made by both the appellants before the villagers including P.W.9 regarding their guilt of committing the rape and murder of the deceased on 22.08.2002 at the putus bushes near Kamarjoda-Banspani embankment is inculpatory and the same has been conclusively proved with the corroborative circumstances of the case. The learned trial Court further held that except the confessional statement made by the co-accused before the police, he has not made any extrajudicial confession before the villagers and he voluntarily surrendered JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 15 of 50 before the police and confessed his guilt of committing the rape and murder of the deceased and there is no other evidence against the co-accused for committing the crime except the confession before the police. The learned trial Court further held that the injuries found on the person and human blood in the wearing apparels of both the appellants are the additional links to the chain of circumstances for proving their involvement in the offence. The learned trial Court further held that in view of the prosecution evidence and the surrounding circumstances which have been proved unerringly leads to the only conclusion that both the appellants were responsible for the gang rape and murder of the deceased and their involvement in the crime has been unerringly proved by the prosecution beyond all reasonable doubt. Accordingly, both the appellants were found guilty under sections 376(2)(g)/302/201/34 of the I.P.C. The learned trial Court further held that there is no other corroborative evidence against the co-accused Dadu @ Anil Patra except the confession of both the appellants and the confession of co-accused before the police after his surrender at the police station and therefore, acquitted the said co-accused. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 16 of 50 Contentions of the Parties: 7. Mr. Debi Prasad Dhal, learned Senior Advocate appearing on behalf of appellant Kathu Karua in JCRLA No.58 of 2006 and appellant Ramesh Apat in CRLA No.450 of 2005 being ably assisted by Mr. B.S. Dasparida argued that there is no direct evidence implicating both the appellants and the case is based on circumstantial evidence. Learned counsel argued that in the absence of any direct evidence and merely on the basis of extrajudicial confession of the appellants and the co-accused, they cannot be held guilty for the said crime. Learned counsel further argued that the extrajudicial confession is only a circumstantial piece of evidence, which needs corroboration on material particulars and in absence thereof, it is not safe to base a conviction. Learned counsel further found fault with the approach of the learned trial Court in placing reliance upon the evidence of P.W.9 inasmuch as though P.W.9 after being declared hostile by the prosecution stated that the appellant Kathu Karua threatened him to keep mum and that if (P.W.9) disclosed to anyone, he (appellant Kathu Karua) would murder him, but in the cross-examination by defence, he has admitted that he had not stated before the police about threat given by the said appellant to commit his murder and not to disclose JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 17 of 50 before anybody. Learned counsel further submitted that notwithstanding the settled position of law that even the testimony of a hostile witness can be relied upon as admissible evidence, but when there is apparent contradiction in his statements, it is risky to rely upon his version which must be discarded from the prosecution evidence. He further argued that so far as appellant Ramesh Apat is concerned, except the extrajudicial confession of appellant Kathu Karua, there is no other evidence against him and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellants. To substantiate his arguments, he placed reliance on the decisions of this Court in the cases of Astami Mahakud -Vrs.- State of Odisha reported in 2023 (II) Orissa Law Reviews 246, Sima @ Simanchal Behera -Vrs.- State of Orissa reported in (2024) 93 Orissa Criminal Reports 626 and Rupa Jerai and others -Vrs.- State of Odisha reported in (2025) 100 Orissa Criminal Reports 1068. Mr. Aurovinda Mohanty, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and argued that the extrajudicial confession of the appellant Kathu Karua before the villagers forms a link in the chain of circumstances sought to be established by the prosecution and JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 18 of 50 when it is corroborated by other material evidence like the evidence of P.W.9, the same can be safely relied upon. It is contended that the presence of appellant Kathu Karua at the scene of occurrence in a naked condition where the deceased was also lying dead in a naked condition, the seizure of his nicker in which human blood of Group „A‟ was found which was also found in the wearing apparels of the deceased, makes the chain complete and therefore, the learned trial Court is quite justified in relying upon the same in convicting the appellants and therefore, the appeals should be dismissed. 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 discuss the evidence on record as to whether the prosecution has proved that the deceased met with a homicidal death. In this context, the evidence of the doctor (P.W.11) is very relevant. P.W.11 was the Asst. Surgeon at Govt. Hospital, Barbil, who conducted post mortem examination on 23.08.2002 over the dead body of the deceased and found the following injuries: “i. A body of average stout female soaked with water, dried leaves found between hairs of her head; JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 19 of 50 ii. Presence of rigor mortis in all four limbs, dried blood clots in left ear and nostrils; iii. Multiple abrasions of various sizes found on the back, buttock and thigh; iv. Multiple nail marks present in the both side of neck; v. Laceration found on left eye brow, left and right upper eye limbs; vi. Subaponeurotic blood clot present in the frontal region; vii. Fracture of left temporal and occipital bone with extradural blood clot found in the region; viii. Laceration of occipital lobe of brain.” P.W.11 opined that all the injuries described above were ante mortem in nature. On dissection, P.W.11 found the following injuries: “i. Upper left alveolar margin on upper limbs and upper left incisor was exposed and loose; iii. There was swelling in abdomen, the liver kidney and spleen were intact, uterus was normal, ovaries are normal, hymen absent, loss of rugosity, old perennial scar was present and vagina admits two fingers, OS is slit like.” P.W.11 further opined that the cause of death was due to head and brain injury. He further opined that such injuries can be the cause of death of a person in ordinary course of JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 20 of 50 nature and time since death was 12 to 24 hours. He proved the P.M. report vide Ext.17. On the query made by the I.O., P.W.11 opined that some of the injuries detected could be caused by a small boulder or stone and the rest of the injuries could be possible by the culprits during sexual assault on the deceased. The opinion of P.W.11 has been marked as Ext.16/2. Except putting a simple hypothetical question, nothing has been elicited in the cross-examination of the doctor (P.W.11) to discard his evidence on homicidal death of the deceased. Similarly, the manner in which the deceased was found in a half-naked condition at the spot and the injuries sustained on her body also proved that the deceased was subjected to rape. The learned counsel for the appellants has also not seriously challenged the findings of the doctor relating to the homicidal death of the deceased or rape on her. Therefore, on a conjoint reading of the inquest report (Ext.2), post mortem report (Ext.17) and the evidence of the doctor and above all other materials on record, we are of the humble view that the findings of the learned trial Court regarding JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 21 of 50 the nature of death of the deceased to be homicidal and that she was subjected to rape is based on clinching materials and therefore, we concur with such findings. Principles for appreciation of case based on circumstantial evidence: 9. Admittedly, there is no direct evidence relating to the commission of rape and murder of the deceased and the case is based on circumstantial evidence. The law relating to the basing 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, wherein it has been laid down 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; JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 22 of 50 (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. These five golden principles, according to the Hon‟ble Supreme Court, constitute the panchsheel of the proof of a case based on 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 JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 23 of 50 such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved 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 JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 24 of 50 within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain 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 JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 25 of 50 Rajasthan reported in (2019) 19 Supreme Court Cases 447 in the following words: “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 JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 26 of 50 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 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." 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 JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 27 of 50 Court is free to award conviction on the basis of such circumstantial evidence. 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. Assessment of evidence on record on each of the circumstances: 10. Nine circumstances as mentioned above under the heading of „findings of the trial Court‟ need to be analysed systematically. Circumstance Nos. (i) & (iii): 10.1. The first circumstance is that the deceased left her home at about 4.00 p.m. on 22.08.2002 and went to Kamarjoda to tie Rakhi on the hand of his God brother and the third circumstance is that the deceased did not return to her home in the said night. In this context, the evidence of P.W.1 and P.W.4 is very much relevant. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 28 of 50 P.W.1 has stated that the deceased was his sister-in law (wife of brother in-law) and on the date of occurrence, in the evening hours, his mother in-law who was residing with the deceased told him that the deceased had left home at 4.00 p.m. to tie Rakhi to Surendra Mahanta but she had not returned. He further stated that at about 9.00 p.m., he left his home on a bicycle to trace the deceased out and arrived at the house of Surendra Mahanta, who told that the deceased had never come to his house. He further stated that since it was late night, he could not search for the deceased anymore and came back to his house. On the following morning, P.W.5 informed him that the dead body of a woman was lying at the side of the embankment which was running in between village Banspani and Kamarjoda. Upon hearing the same, P.W.1 proceeded to the spot and found the dead body of a female lying half-naked with bleeding injuries, which he identified to be that of the deceased. Nothing has been brought out in the cross-examination to disbelieve his evidence. P.W.4 has also stated in a similar manner like her husband (P.W.1) that the deceased was the wife of her younger brother and further stated that her mother informed her in the evening hours on the date of occurrence that the deceased did JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 29 of 50 not return home for which P.W.1 went in search of her but could not trace her out and subsequently, she came to know from P.W.5 and P.W.8 that a female had been killed and her dead body was lying by the side of the embankment. She further stated that she along with others went to the spot and identified the dead body of the deceased. There is nothing in her cross- examination to disbelieve her version made in the examination in-chief. Thus, the prosecution has proved both the circumstances nos.(i) & (iii). Circumstance Nos.(ii) & (iv): 10.2. The second and fourth circumstances relate to the embankment which was running in between Banspani and Kamarjoda where the dead body of the deceased was found at the time of occurrence and her dead body was discovered inside the bushes at the same embankment. P.Ws.1, 2, 4, 5, 6, 7, 8, 9 and the I.O. (P.W.10) have clearly stated that the dead body of the deceased was lying inside the putus bushes near the ridges below the embankment, which was running from Banspani to Kamarjoda and the inquest report (Ext.2) also corroborates to the same. This aspect seems to have not been challenged in the cross-examination by the JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 30 of 50 learned defence counsel and even the learned counsel for the appellants has also not challenged these two circumstances. Thus, we are of the humble view that the prosecution has successfully established the circumstance nos.(ii) and (iv). Circumstance No.(v): 10.3. This circumstance indicates that the dead body of the deceased was lying half-naked and there was no clothing up to her waist and her wearing apparels were folded on the upper parts of her waist and there were injuries on her face, eyes and head. P.W.1 has stated that when he came to the spot, he found the dead body of a female was lying half-naked and there were no clothes up to her waist. He identified the dead body to be that of the deceased. He further stated to have detected bleeding injury on her body and that the body was swollen. P.W.4 has stated that when she came to the spot, she found the dead body of the deceased was lying naked and there were bleeding injuries on her eye lids and nostrils. P.W.7 has stated that when she came to the spot, she found the dead body of the deceased was lying naked and there were no clothes up to her waist and she saw blood was JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 31 of 50 oozing from her nostril and mouth and the eyes were damaged and the deceased was turned to blind. P.W.10, the I.O. has stated that when he arrived at the spot, he found the dead body of the deceased was lying with her wearing apparel folded on her chest and the entire body up to her chest was naked. Thus, we are of the humble view that the prosecution has successfully established the circumstance no.(v). Circumstance No.(vi): 10.4. The sixth circumstance speaks about death of the deceased was within a few hours of her departure from her house. In this respect, the evidence of the doctor (P.W.11) is relevant. The post mortem report (Ext.17) prepared by P.W.11 indicates that the death of the deceased occurred within twelve to twenty four hours of the post mortem examination. P.Ws.1 and 4 have specifically stated that the deceased left her house at about 4.00 p.m. on 22.08.2002. P.W.11, the doctor has mentioned in Ext.17 that the post mortem examination was held at 1.00 p.m. on 23.08.2002. Therefore, the death of the deceased can be co-related within a few hours of her departure from her house. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 32 of 50 Thus, we are of the humble view that the prosecution has successfully established the circumstance no.(vi). Circumstance No.(vii): 10.5. The seventh circumstance speaks about the dragging mark present on the embankment near the spot where the dead body of the deceased was lying. In this respect, the testimony of I.O. (P.W.10) is relevant, who stated that there was a dragging mark from the river embankment up to the dead body and the putus bushes were found to have been disturbed. He further stated that there were blood stains at the spot and that he prepared the spot map Ext.7. There is absolutely no cross-examination to negate the above testimony. Thus, we are of the humble view that the prosecution has successfully established the circumstance no.(vii). Circumstance No.(viii): 10.6. The eighth circumstance is that Bablu Patra (P.W.9) was passing through the embankment on the date of occurrence at about 4.00 to 5.00 p.m. and he heard the sound of shrinking of „OON AAN‟ from the putus bushes below the embankment and saw the appellant Kathu Karua standing naked inside the putus JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 33 of 50 bushes and he also saw the hair and blouse of a woman who was lying inside the putus bushes and that appellant Kathu was standing at the side of that female being naked. This is no doubt a very vital circumstance. P.W.9 in the examination in-chief has stated he did not know anything about the occurrence and that on being informed by one Ramachandra, he went to Joda police station where the police asked him to sign on some paper and accordingly, he signed on a paper. He was declared hostile by the prosecution, however in the cross-examination by the prosecution, he has stated that on the date of occurrence at about 4.00 to 5.00 p.m., he went to the house of Jitu Patra of Kamarjoda to return his mortgaged watch through the embankment which was running from Banspani to Kamarjoda and at the embankment, he saw the appellant Ramesh Apat so also the co-accused Dadu @ Anil Patra. He further stated to have heard sound of shrieks „OON AAN‟ which was coming below the embankment. He further stated that appellant Kathu Karua was standing inside the putus bushes and he was naked and that he also saw the blouse and hair of a woman who was lying inside the putus bushes and that the appellant Kathu Karua was standing at the side of female who was lying inside putus JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 34 of 50 bushes. He further stated that appellant Kathu Karua threatened him to keep mum and that he would murder him (P.W.9) if he disclosed before anybody. In the cross-examination, he has stated that the appellant Ramesh Apat was chasing goats and co-accused Dadu Patra was coming for bath when he found them on his way to Kamarjoda. He further stated that the village people usually go to the side of the embankment to answer the call of nature. He further stated that after seeing the appellant Kathu Karua naked, he returned back. He further stated that he had not stated before the I.O. that appellant Kathu Karua had threatened him to commit his murder if he would disclose before anybody. He has denied the suggestion that he had not seen any woman lying inside the putus bushes and that the appellant Kathu Karua was standing naked inside the putus bushes. Law is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on careful scrutiny thereof. The portion of the evidence which is consistent with the case of the prosecution or defence and are JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 35 of 50 admissible in law can be used by the prosecution or the defence. It remains admissible in the trial and there is no legal bar to base an order of conviction upon his testimony if corroborated by other reliable evidence. It is for the Judge of fact to consider in each case whether as a result of the cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the said witness, as a whole, with due caution and care, accept, in the light of other evidence on record, that part of testimony which he found to be creditworthy and act upon it. In the case in hand, even though at the first instance, in the examination in-chief, P.W.9 stated that he did not know anything about the occurrence but after being declared hostile by the prosecution, it has been elicited by the prosecution as to how he saw the appellant Kathu Karua standing inside the putus bushes in a naked condition and he heard the sound of „OON AAN‟ from the putus bushes and also saw the blouse and hair of a woman, who was lying inside the putus bushes and the appellant Kathu Karua was standing by the side of the female who was lying there. Though the defence has cross-examined JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 36 of 50 this witness, but the evidence of P.W.9 on the aforesaid score has not been shaken. Specific suggestion has been given by the learned defence counsel to P.W.9 that he had not seen the woman lying inside the putus bushes and the appellant Kathu standing naked there, but he has denied such suggestion. Of course, the prosecution has elicited from the evidence of P.W.9 that appellant Kathu threatened him to keep mum and to murder him in case he disclosed to anybody but in the cross- examination, he has stated not to have stated before the I.O. in that respect. Though the learned Public Prosecutor has elicited from P.W.9 that at the embankment, he had seen the appellant Ramesh Apat and co-accused Dadu Patra, but in the cross- examination by the defence, he has stated that the appellant Ramesh Apat was chasing goats and co-accused Dadu Patra was coming for bath when he found them on the way to Kamarjoda. Therefore, his evidence regarding the presence of appellant Ramesh Apat on the embankment is not sufficient to entangle him in the crime, however, his evidence against appellant Kathu Karua has not been completely shaken and therefore, his entire evidence cannot be washed off the record altogether and it can be accepted to the extent of his implication against appellant JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 37 of 50 Kathu Karua regarding his presence inside putus bushes in a naked condition where a female (deceased) was lying and the appellant was standing by her side. Circumstance No.(ix): 10.7. The ninth circumstance relied upon by the learned trial Court is the extra judicial confession of the appellants Kathu Karua and Ramesh Apat. The relevant witnesses on this aspect are P.Ws.4, 5, 7 & 8. The learned defence counsel has placed reliance on the following decisions:- In the case of Astami Mahakud (supra), a Coordinate Bench of this Court held as follows:- “11. It is the settled position of law that the Court should not presume from the beginning that extra judicial confession is always suspect and is a weak piece of evidence. The Court is further required to examine the same with a greater degree of care and caution and the acceptance of the same would depend upon the nature of circumstance, the time when confession is made and the credibility of the witnesses to speak about such confession and finally whether the confession was voluntary JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 38 of 50 and truthful. The extra judicial confession in order to form the foundation of a conviction, it must be ensured that the same inspires confidence and is corroborated by other independent reliable evidence. The extra judicial confession when is surrounded by suspicions circumstances and suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, its credibility becomes doubtful and it loses its importance and in that event, it would be difficult to base a conviction on such a confession. It has always been said that the extra judicial confession must be established to be true and made voluntarily and the matter then must be in a fit state of mind. The same thus must successfully pass through the test of credibility.” In the case of Sima @ Simanchal Behera (supra), this Court held as follows:- “8…….. Law is well settled that extra judicial confession is a weak piece of evidence and the evidence relating to extra judicial confession must satisfy the mind of the Court that it was not only voluntary but comes from a person on whom the accused can repose confidence and that he is a truthful witness.” JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 39 of 50 In the case of Rupa Jerai and others (supra), this Court held as follows:- “11…….The extrajudicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extrajudicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extrajudicial confession should inspire confidence and the Court should find out whether there are other cogent circumstances on record to support it. [Ref.: Sk. Yusuf -Vrs.- State of W.B. : (2011) 11 Supreme Court Cases 754 and Pancho -Vrs.- State of Haryana : (2011) 10 Supreme Court Cases 165]. Keeping in view the ratio laid down in the aforesaid decisions, we have to examine the evidence of the witnesses who deposed about the extrajudicial confession. P.W.4 has stated that on query made by the villagers, it came to the knowledge that appellant Kathu Karua was the perpetrator of the crime and then on interrogation, appellant Kathu Karua confessed his guilt of committing rape and murder of the deceased along with appellant Ramesh Apat and JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 40 of 50 the co-accused. It has been confronted to this witness and proved through the I.O. (P.W.10) that she had not stated before him that Kathu confessed his guilt before the villagers in her presence and also disclosed the involvement of other accused persons in the occurrence. In view of such contradictions, since such a statement has been made for the first time during trial, it is very difficult to place reliance on the evidence of P.W.4 so far as the extrajudicial confession made by the appellant Kathu Karua. P.W.5 has stated that appellant Kathu Karua was apprehended by the villagers and they took him to Giri Babu (P.W.3), who gave him two to three slaps and then appellant Kathu confessed his guilt of committing rape and murder of the deceased and further disclosed the names of two other co- accused persons who were associated with him in the alleged crime. Learned counsel for the appellant argued that since two to three slaps were given by P.W.3 and then, the confession was made, it cannot be said to be voluntary in nature and therefore, the evidence of P.W.5 regarding extrajudicial confession made by appellant Kathu Karua should be discarded. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 41 of 50 No other witness who was present at that time has stated about any slaps being given by P.W.3. Even the appellant Kathu Karua has also not stated that any slaps were given to him by P.W.3. Of course, P.W.3 himself has not supported the prosecution case and has been declared hostile. Even if it was the spontaneous reaction of P.W.3 in giving slaps to the appellant Kathu Karua after his role came to limelight, but there is no evidence that there was any kind of inducement, threat or promise made to the appellant for making such confession. We are conscious of the fact that an extrajudicial confession, by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution, but if such confession is not surrounded by suspicious circumstances and the credibility of the witness who is deposing about the extrajudicial confession is not doubtful and there is no inherent improbabilities in it, the Court can place reliance on it. P.W.5 is an independent witness and he had no axe to grind against the appellant Kathu Karua and his evidence inspires confidence relating to the extrajudicial confession made
Decision
accordingly, we hold the appellant guilty under sections 376, 302 & 201 of I.P.C. Even if there are no independent charges against the appellant Kathu Karua for such offences and the co-accused persons have been acquitted, but since we have come to the conclusion that the appellant Kathu Karua had committed the crime individually, he can be held guilty under such offences simpliciter in view of the ratio laid down by the Hon‟ble Supreme Court in the case of Kishore Chand -Vrs- State of Himachal Pradesh reported in (1991) 1 Supreme Court Cases 286. The sentence imposed by the learned trial Court on the appellant Kathu Karua needs no interference. Accordingly, JCRLA No.58 of 2006 being devoid of merits, stands dismissed. CRLA No.450 of 2005 filed by appellant Ramesh Apat is allowed and the impugned judgment and order of conviction of the said appellant under sections 376(2)(g), 302/34 & 201/34 of I.P.C. is hereby set aside and the appellant is acquitted of the charges. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 48 of 50 It appears that the appellant Kathu Karua was directed to be released on bail by this Court vide order dated 11.02.2015 and he is now alive as per the written instruction received from the Inspector in-charge of Joda police station dated 25.10.2025 which we have reflected in our order dated 09.12.2025. The appellant Kathu Karua shall surrender before the learned trial Court within a period of two weeks from today to serve out the sentence awarded by the learned trial Court, which is confirmed by us, failing which, the learned trial Court shall take necessary coercive steps in accordance with law to take the appellant into judicial custody to serve out the remaining sentence. So far as the appellant Ramesh Apat in CRLA No.450 of 2005 is concerned, he was directed to be released on bail by this Court vide order dated 24.07.2014. Since, the CRLA has been allowed, he is discharged from the liability of bail bonds. The personal bonds and the surety bonds stand cancelled. He shall remain at liberty unless he is required in any other case. Before parting with the case, we would like to put on record our appreciation to Mr. Debi Prasad Dhal, learned Senior Advocate appearing for both the appellants for rendering his valuable help and assistance towards arriving at the decision JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 49 of 50 above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. B.S. Dasparida, Advocate so also Mr. Aurovinda Mohanty, learned Additional Standing Counsel. The trial Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. .......................... S.K. Sahoo, J. Chittaranjan Dash, J. I agree. Orissa High Court, Cuttack The 23rd December, 2025/Pravakar/RKM/Sipun .................................. Chittaranjan Dash, J. JCRLA No.58 of 2006 & CRLA No.450 of 2005 Page 50 of 50