Babaji Vs State

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRA No. 265 of 1998

(Arising out o f the Judgment of conviction dated 2 4 th of August, 1998, passed b y Sri M. C. Satpathy, Sessions Judge , DhenkanalAngul, Dhenkanal, in Sessions Trial No.30-D of 1995, for the offence under section 302/307/394/201/34 of the I ndian Penal Code, 1860)

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…. Babaji Sahoo Appellant Mr. Dharan i dhar Nayak, Senior Advocat e , along with Ms. Bini Mishra, A dvocate and Ms. A. Mish r a, Advocate - Versus -

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State of Orissa

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…. Respondent

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Ms. Su v alaxmi Devi Addl. Stan d ing Counsel

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CORAM:

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THE HON’BLE MR. JUSTICE S. K. SAHOO &

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THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Date of Argument: 03.07.2025 Date of Judgment: 24.07.2025

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Chittaranjan Dash, J.

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This A ppeal is directed against the judgm e nt and order dated 24.08. 1 998 passed by the learned Ses s ions Judge, Dhenkanal-A n gul at Dhenkanal in Sessions Trial C a se No. 30-D of 1995, wher e in the sole Appellant, along with five others, stood trial for the o f fences under Sections 120-B, 394, 3 6 4, 307, 302, 201, 411, and 353 read with Section 34 of the India n Penal Code (hereinafter r e ferred to as the “IPC”) for having e n tered into a criminal cons p iracy to commit robbery, kidnappin g , attempt to

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murder, causi n g disappearance of evidence, dishone s tly receiving stolen propert y , and using criminal force to deter a p ublic servant from discharg i ng his duty, besides committing murd e r.

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The A ppellant herein, along with one Babuli @ Sudarshan Na i k, was sentenced to imprisonment f o r life for the offence under Section 302/34 of the IPC; rigorous i m prisonment for seven yea r s for the offence under Section 307/3 4 of the IPC; rigorous imp r isonment for five years for the o f fence under Section 394/3 4 of the IPC; and rigorous imprison m ent for three years for the o ffence under Section 201/34 of the IPC. All the sentences we r e directed to run concurrently. Th e other four accused perso n s who were charged along with the A ppellant and Sudarshan Na i k, namely, Jadumani Naik, Prasanna Naik, Bhola Bhuyan, and L achhaman Sharma, were found not guilty of any of the offences a n d were acquitted accordingly.

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Babul i @ Sudarsan Naik filed a separ a te Criminal Appeal, regist e red as CRLA No. 204 of 1998. Whil e undergoing the sentence i n custody, he was prematurely rel e ased by the appropriate G overnment under Section 432 of t he Code of Criminal Proc e dure.

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The p r osecution case, as unfolded during trial, reveals that on 02.09.1994, between 4:00 PM and 4:30 P M , the present Appellant, B a laji Sahu, along with co-accused Sudarsan @ Babuli Naya k , arrived at Gandhi Chhak, Choud w ar, Cuttack. There, they a p proached Akhaya Kumar Routray ( P .W.10), the owner of an a mbassador car bearing registration n u mber ORP5036, in the p r esence of its driver, Samir Kumar Be h era (P.W.9),

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with the int e ntion of hiring the vehicle for a journey to Dhenkanal. F o llowing negotiation, the hire charges were settled at Rs.275/- (r e duced from Rs.300/-), out of which S udarsan paid Rs.100/- in a d vance for refuelling. After refilling the car with diesel, P.W.9 drove the vehicle to Dhenkanal, acc o mpanied by the deceased, Abhaya Kumar Routray (the young e r brother of P.W.10). Up o n reaching Dhenkanal, at the dire c tion of the accused perso n s, the driver drove the vehicle to sev e ral locations within the to w n and its outskirts. At approximately 9:00 PM, Sudarsan ask e d the driver to proceed towards Ka m akhyanagar. Though P.W. 9 initially expressed hesitation to trav e l at night, he agreed after b e ing offered an additional sum of Rs. 1 00/-. Before proceeding fu r ther, all of them stopped at a dhaba b y the side of National Hig h way No. 42, where they took foo d . The food expenses we r e paid by Sudarsan. Thereafter, the vehicle proceeded to w ards Kamakhyanagar. Upon crossing t he Brahmani bridge, Sudar s an asked the driver to stop the v e hicle near a village. Both a ccused got down, held a private conversation for about half an hour, and then re-entered the car to continue the journey.

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After c overing a short distance, both accuse d directed the driver to take a diversion onto a kuchha road. Appro x imately half a kilometre in t o the diversion, both Sudarsan and B a laji suddenly attacked the occupants of the vehicle. While inside the car, they assaulted the deceased, Abhaya, and P.W.9 with bhujali . The Appellant dra g ged P.W.9 out of the car, threw him a bout 8 to 10 cubits away, a nd stood over his chest before ret u rning to the

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vehicle, pres u ming him dead. Thereafter, both a c cused drove away with the vehicle, leaving the severely injured P .W.9 behind and the dece a sed still inside the car. A short while later, the vehicle return e d to the spot where P.W.9 had bee n abandoned. Upon not find i ng him there, the accused waited mo m entarily and then drove a way towards the main road. P. W .9, though grievously in j ured, crawled to a ridge beside t h e road and remained ther e overnight.

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On th e following morning, some villagers from nearby village Mach h ia discovered P.W.9 in a moribund s t ate and took him to their v i llage. He was given water and milk b y the village headman, fol l owing which he managed to feebl y narrate the incident. The local Sarpanch, Pravash Ranjan Mi s hra (P.W.8), was called an d recorded P.W.9’s version in writing (Exhibit 10). The same w a s sent to the Tumusingha Police S t ation. While P.W.9 was un d ergoing treatment, the vehicle owner, P.W.10, and his father vis i ted him at the hospital. After learni n g about the incident, they rushed to the site of occurrence. Later, information was received r egarding the discovery of a dead bo d y in a bushy area near vill a ge Machhia. P.W.16 proceeded to th e spot, where P.W.10 identi f ied the body to be that of Abhaya Ku m ar Routray.

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The O fficer-in-Charge (OIC) of Tumu s ingha P.S., P.W.16, havi n g received information, arrived at t h e village at about 7:30 A M and treated the report as the First Information Report (FIR). He took up investigation and forwar d ed the report to the police s tation for registration of the case. P. W .9’s bloodstained cloth e s were seized, and considering his deteriorating

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health, he w a s shifted to the District Headquart e rs Hospital, Dhenkanal, fo r treatment and was admitted to the s u rgical ward. The I.O. con d ucted inquest proceedings and sent t he body for post-mortem e xamination after completing necessar y formalities.

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In the course of further investigation, up o n receiving information t h at the accused persons had fled to K h aragpur with the stolen ve h icle, P.W.16, the Investigating Offic e r, proceeded there with a t eam of officers. On 07.09.1994, the y located the said vehicle a t Kharagpur Bus Stand. It was found i n possession of accused S u darsan, from whom the R.C. Book and driving licence were a lso seized under seizure list (Exhib i t 7). All the accused perso n s were present at the spot. When they attempted to obstruct the s e izure of the vehicle, they were arreste d on the spot. Their wearing apparels were also seized. The accus e d were then produced be f ore the local Magistrate at Mid n apore, who remanded the m to police custody with directions to p roduce them before the le a rned S.D.J.M., Kamakhyanagar. W h ile in police custody, accu s ed Sudarsan led to the recovery of t h e weapon of offence bhuj a li (M.O.I) which was seized unde r seizure list (Exhibit 6). Test Identification Parades (T.I.P.) we r e conducted in respect of suspects Sudarsan Naik and Balaji S ahu. P.W.16 also took nec e ssary steps to send all seized incrimi n ating articles to the Sta t e Forensic Science Laboratory, Rasulgarh, Bhubaneswar. On the direction of the learned Cou r t, the seized vehicle was r e leased in the zima of Kalindi Rout r ay, father of P.W.10. After completing all formalities of investig a tion, P.W.16

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submitted the charge sheet against all accused pers o ns under the relevant provi s ions of the Indian Penal Code.

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Ms. B ini Mishra, learned Advocate for t h e Appellant, strenuously a s sailed the impugned judgment on th e ground that the Trial Cou r t erred in concluding the authorship o f the murder of Abhaya a s well as the attempt to murder P. W .9 as being attributable t o the Appellant, in the absence of cogent and reliable evide n ce. Her primary contention centre d around the alleged anom a lies in the conduct of the Test Identifi c ation Parade (T.I. Parade). It was submitted that the T.I. Para d e had been conducted ne a rly a month after the Appellant an d co-accused were apprehe n ded. She drew attention to the testi m ony of the Investigating O fficer (P.W.16), who admitted to ha v ing obtained photographs of both the seized vehicle and the App e llant prior to the T.I. Para d e. According to the learned counsel, this raises a serious doubt a s to whether the said photographs ha d been shown to the witness e s beforehand, thereby compromising the integrity of the ident i fication process. She further arg u ed that the independent w itnesses present during the T.I. Pa r ade had not supported the identification of the Appellant, and t herefore, the testimonies o f P.W.9 (the injured eyewitness) and P.W.10 (the owner of the v ehicle) should not have been solely r e lied upon to base a convi c tion. The learned counsel also poi n ted out the absence of a ny specific and direct evidence from P.W.9 attributing an y fatal blow to the deceased by the Ap p ellant. Thus, it was conten d ed that the prosecution had failed to establish the Appellant’s c u lpability in the murder of Abhaya. I n totality, the

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defence chall e nged both the delay and authenticit y of the T.I. Parade, and r a ised doubts regarding the timing o f the incident and the medi c al evidence concerning the age of t h e injuries. It was argued th a t the prosecution failed to establish a c omplete and unbroken chain of circumstances pointing unerringl y to the guilt of the Appellant. Accordingly, the learned couns e l prayed for acquittal of the Appellant by setting aside t h e impugned judgment.

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Ms. S. Devi, learned counsel for the State, s u bmitted that the impugne d judgment is based on material e v idence that supports the s u bstratum of the prosecution case and is consistent with the medical and ocular evidence. Th e chain of circumstances , established through the testim o ny of 16 prosecution w itnesses, remains unbroken and lead s to the only conclusion of the Appellant’s guilt. P.W.9, the injured eyewitness, h a d accompanied the accused persons, i ncluding the Appellant an d co-accused Sudarshan Naik, for n early six to seven hours, during which they shared food an d engaged in conversations, culminating in the murderous a ssault. This prolonged int e raction rendered the T.I. Parade non - essential, as the identificat i on of the accused in Court by P.W.9 constitutes substantive e v idence. The argument that photog r aphs of the accused were published before the T.I. Parade w a s conducted stands refute d by the consistent testimonies of P. W s.9 and 10, who denied any prior exposure to such m a terials. The Investigating Officer (P.W.16) admitted to hav i ng taken a photograph o n ly of co-accused Sudarshan Naik a n d not of the present App e llant, further negating the defence’s plea of

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prejudice. M s . Devi further submits that the Appellant’s bloodstained c lothes were recovered and remained unexplained by the defe n ce. The learned counsel emphasi z ed that the Appellant’s f a ilure to discharge the burden under S e ction 106 of the Evidence Act, despite having exclusive kno w ledge of the circumstances under which the deceased was last s e en alive and later found dead, strengthens the inference of guilt. The version of P.W.9 tha t the Appellant assaulted him with a bhujali and thereafter left him for dead, while the deceased wa s taken away in an injur e d state and later found dead n earby finds corroboration in the medical evidence of P.W.4, w h o confirmed that the injuri e s were ante-mortem and sufficient in the ordinary course of nat u re to cause death. The presence of t h e Appellant with the dece a sed until the last moment, coupled wi t h the lack of any explana t ion regarding the deceased’s fa t al injuries, completes the chain of circumstances. The learned c ounsel relied on Satpal Vs. State of Haryana , (2018) 6 SCC 610 and Namdeo Vs. State of Maharashtra , (2007) 14 SCC 150 t o submit that conviction ca n be based on the testimony of a s i ngle injured eyewitness if found reliable. The learned counsel also placed reliance on th e landmark case of Sharad Birdhichand Sarda Vs. State of Maharashtra , (1984) 4 SCC 116 , to assert that the prosecution h a s satisfied the five golden principles necessary to base a convic t ion on circumstantial evidence. The argument of the Appellant that he cannot be convicted under Section 302 IPC merely because co-accused Sudarshan Naik has bee n prematurely released on re m ission, and that he did not assault th e deceased, is misplaced. As per Section 34 IPC, both accused per s ons acted in

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furtherance o f their common intention when th e y assaulted P.W.9 and th e deceased, and hence joint liability a ttaches. Ms. Devi submits t hat the circumstances including hirin g the vehicle, presence of b o th accused during the entire episode, a ssault inside the vehicle, r e covery of the weapon, bloodstained clothes, and consistent tes t imonies form a cogent and unassail a ble chain of events pointi n g to the Appellant’s culpability for murder and attempted mu r der, and therefore, the findings of th e learned trial Court are wel l -reasoned and suffer from no infirmi t y warranting interference.

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The d e fence plea was one of complete de n ial and false implication.

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To est a blish the culpability of the Appellant and the other accused persons, the prosecution examined s ixteen (16) witnesses in t o tal and proved twenty-six (26) docu m ents marked as Exhibits 1 to 26. In addition, ten (10) material objects were exhibited as M .Os. I to X.

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The learned Trial Court, relying upon the t e stimonies of the star witn e sses P.Ws. 9 and 10, along with the medical evidence add u ced through P.W.4, and taking into ac c ount several attending circ u mstances enumerated in its judgme n t, found that the prosecutio n had proved its case beyond all reas o nable doubt. The Court hel d that the chain of circumstances esta b lished by the evidence uner r ingly pointed to the guilt of the App e llant and the co-accused. C o nsequently, the Appellant and anoth e r were found guilty of the c harges framed against them and w e re sentenced accordingly.

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Being aggrieved by the findings recorded b y the learned Trial Court, the Appellant has preferred the present a ppeal.

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Havin g regard to the nature of allegations an d the charges framed agains t the Appellant, it is incumbent upon this Court to first examine whether the deceased, Abhaya, met with a homicidal de a th. In this regard, both the medica l and ocular evidence ass u me considerable importance. Dr. Pabitra Singh (P.W.4), who conducted the post-mortem examination on the dead body on 0 4.09.1994, observed the following injuries: -

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(i) One incised wound extending from angle of m outh on right i n volving right cheek and right mandi b le, right mandi b le is severed;

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(ii) Incise d would 3” x ½” x ½” on extensor of s urface of right f o re-arm towards distal end,

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(iii) All t h e fingers on the right hand were severed includ i ng muscles and bones;

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(iv) First, s econd and third fingers of left hand h ad been severe d including muscles and bones;

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(v) An in c ised wound measuring 2.1/2” x 1’ X scalp depth b ehind the right ear; and

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(vi) An incised wound measuring 3” x 1” x scalp depth on the ri g ht temporal region obliquely situat e d to the mid-li n e of the scalp.

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Accordi n g to the P.W.4, all the injuries are an t e-mortem in nature and su ff icient in ordinary course to cause dea t h. It has also been opined b y the doctor that the death of the dece a sed was due to hemorrhag e and shock on account of the multiple ante mortem injuries cause d by the sharp cutting weapon and t h e death was caused within about 18 to 36 hours prior to the p ost mortem examination. S imilarly, the doctor stated that upon examination

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of the weapon of offence, a Bhujali (MO-I) produce d by the I.O., he found the i n juries on the body of the deceased by the MO-I.

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The nat u re of death to be homicidal has not b een disputed by the defenc e too. On the contrary, having regard t o the opinion furnished by t he doctor conducting the autopsy o v er the dead body, in abse n ce of any material controverting the evidence of the doctor so a lso Exbt.1, the Inquest report reveali n g the nature of injuries w ith apparent cause of death corro b orating the versions of P. W s. 9 and 10 as to the manner of injur i es caused on the deceased there is nothing to doubt on the d eath of the deceased to b e homicidal in nature, which is sacrosa n ct.

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In seq u el to the nature of death held as h o micidal, the next question that arises for determination is its a u thorship. In this context, t h e evidence of two prime witnesses n a mely P.Ws.9 and 10 appe a rs relevant in as much the pros e cution case substantially hinges on circumstantial evidence. For better appreciation, w e find it profitable to reproduce th e evidence of P.Ws.9 & 10 a s under:

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P.W.9 stated that on 02.09.1994, he was w orking as a driver of A m bassador car bearing registration n u mber ORP5036, owned b y Akshya Kumar Routray, and opera t ing as a taxi from Gandhi Chhak, Choudwar. At around 4:00 t o 4:30 p.m., while he was parked at Gandhi Chhak, two person s approached the vehicle, w h om he identified in Court as the accu s ed Sudarsan Naik and Bal a ji Sahu. At that time, the owner A k shya Kumar Routray was a lso present. The two accused negoti a ted with the owner to hir e the vehicle to go to Dhenkanal. T he fare was

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settled at Rs.275/- from the initially quoted R s.300/-, and Sudarsan Nai k paid Rs.100/- as advance towards f uel charges, which the o w ner instructed to be handed over t o the driver (P.W.9) for p urchasing diesel. Each of the two a ccused was carrying a b a g. After fuelling the vehicle at K a linga filling station, P.W.9 drove the car towards Dhenkanal. T he deceased, Abhaya Kum a r Routray, the younger brother of t he vehicle’s owner also ac c ompanied them. Upon reaching Dhe n kanal, at the direction of a ccused Sudarsan, the vehicle was fi rst taken to College Cro s sing. Sudarsan entered the colle g e premises, returned shor t ly thereafter, and stated that the person he was looking for w as not available. Thereafter, P.W. 9 drove the vehicle to var i ous locations in and around Dhenkan a l, as per the accused’s dire c tions. At one point, they picked up a n other person from near a c i nema hall, visited Sudarsan’s sister’s house near a bridge, and r e turned to the cinema hall where that third person alighted. Subs e quently, the accused asked P.W.9 to d rive towards Kamakhyana g ar. Initially, he refused, stating the h o ur was late, but Sudarsan offered him an additional Rs.100/-, which he accepted. Bef o re proceeding further, they stopped a t a dhaba by the side of N H -42, where they had food. The meal cost Rs.95/-, paid by Sud a rsan. Around 9:00 p.m., the jour n ey resumed towards Kam a khyanagar. Upon reaching the river b ridge, a toll of Rs.7.50 w a s paid. After crossing the bridge, b oth accused persons aske d him to stop near a village. They g o t down and spoke privatel y for about half an hour, then returned and resumed the journey.

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After c overing some distance, they asked h im to divert into a kuchha road on the right side. About half a k ilometre into that road, bot h accused suddenly launched an attack. Balaji Sahu attacked P.W. 9 with a bhujali , inflicting a cut injur y on his neck and hand, wh i le Sudarsan attacked Abhaya Routra y . While still inside the v e hicle, both victims were assaulted. Balaji then dragged P.W. 9 out of the vehicle, threw him on the g round about 8–10 metres a way, and stood on his chest to e n sure he was incapacitated. Thereafter, both accused drove a way in the vehicle, leavi n g P.W.9 injured and the deceased lyi n g inside the car. After thei r departure, P.W.9 crawled to a nearb y ridge by the side of the ro a d and remained there the entire night in a severely injured condit i on. Early next morning, some boys f r om a nearby village, Mach h ia, spotted him and informed the v illagers. The villagers gav e him water and milk, removed his b lood-stained pant and shirt, and gave him a lungi to wear. The lo c al Sarpanch, Pravash Ranj a n Mishra (P.W.8), arrived and wrote d own a report as per P.W. 9 ’s statement, which he signed wit h his thumb impression d u e to injuries on his right hand. The p olice arrived shortly therea f ter in a trekker, seized his blood-st a ined clothes (marked as M . O. II and M.O. III), and brought him t o the District Headquarters H ospital at Dhenkanal, where he was admitted. At around 11:00 a.m. on the same day, Akshya Rout r ay (P.W.10) and his father v isited him at the hospital. Later that a fternoon, the police returne d for his examination, but due to the s e verity of his injuries, he c ould not make a statement. Whil e undergoing treatment, he was informed that Abhaya Routr a y had been murdered. The next day, feeling slightly better, he gave his

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statement to the police and accompanied them t o show the locations visit e d during the journey with the accuse d persons. His elder brother Fakira Behera accompanied him during this process. Ther e after, he returned to Dhenkanal hospital and later went to Bidan a si to his brother-in-law’s house.

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P.W.10 stated that he is the elder brother of t he deceased, Abhaya Kum a r Routray, and owner of the Ambassa d or car ORP5036, which w as regularly used as a taxi and statio n ed at Gandhi Chhak, Chou d war. On 02.09.1994 at around 4: 0 0 p.m., two young men, a g ed approximately 22–27 years, appro a ched him to hire the vehicle for a journey to Dhenkanal. He iden t ified the two accused perso n s – Sudarsan Naik and Balaji Sahu, o n the dock as the individual s who engaged the taxi. Each was ca r rying a bag. After negotiat i ons, the fare was fixed at Rs.275/-, an d an advance of Rs.100/- w a s paid by the accused. At the Kalinga Cooperation filling station , the driver P.W.9 picked up P.W. 1 0’s younger brother, the d e ceased, to accompany them. When the vehicle did not return the following morning, P.W.10, suspecti n g something amiss, began searching and reached Dhenkanal a round 10:00 a.m. There, h e heard at the bus stand that a vehi c le had been involved in a n incident and that an injured pers o n had been admitted to the Government Hospital. Upon r eaching the hospital, he f o und P.W.9 under treatment. P.W.9 i n formed him that Abhaya h ad been assaulted by the very pers o ns who had hired the taxi t he previous day.

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P.W.1 0 then proceeded on a scooter to sear c h for further clues. While o n the road, some persons informed hi m that a dead

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body was lying near village Machhia. Upon r eaching the location, he d i scovered that it was indeed his broth e r’s body. He returned to Dhenkanal and intercepted a police j e ep en route, informing the p olice about the spot. The police then a ccompanied him to the loc a tion and conducted an inquest over t h e dead body. Blood-stained earth and sample earth were collec t ed from the scene, and th e body was taken to Dhenkanal hosp i tal for postmortem. P.W.10 also identified the wearing ap p arels of the deceased and confirmed having seen the accused persons at the dock. He stat e d that the car was recovered about t e n days after the murder of h is brother. Although he did not inspe c t the vehicle immediately, he first saw it on 27.09.1994 whe n he went to Kamakhyana g ar Court for the Test Identification P a rade (T.I.P.). He denied the suggestion that he had not filed a p e tition before the Court fo r taking zima of the vehicle and refuted claims regarding an y photographs of the car being take n earlier. He could not rec o llect whether he had earlier stated i n his Section 161 Cr.P.C. s t atement that the accused carried only one bag. He clarified that a part from meeting P.W.9 at the hospi t al, he had no other meeting s with him. Regarding the T.I.P., he s tated that he waited outsid e the jail for two to three minutes b efore being called in and first identified accused Sudarsan Naik. He also confirmed tha t the witnesses who were part of the T.I.P. were not his relatives.

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Admit t edly, the case of the prosecution is b ased on the circumstantial evidence. It is trite law that i n a case of circumstantial evidence, before reaching a conclusi o n, the Court

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is required to examine the evidence on the touc h stone of the decision repo r ted in the matter of Sharad Birdhi Chand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 –

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“3:3. B efore a case against an accused ves t ing on cir c umstantial evidence can be said to be fully established the following conditions m ust be ful fi lled as laid down in Hanumant’s v. S t ate of M. P . [1953] SCR 1091. 1. T h e circumstances from which the conclusion of guilt is to be drawn should be fully e s tablished;

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The facts so established should be consis t ent with t h e hypothesis of guilt and the accu s ed, that is to say, they should not be explainabl e on any ot h er hypothesis except that the accuse d is guilty;

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The circumstances should be of a conclu s ive nature and tendency;

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T h ey should exclude every poss i ble hypot h esis except the one to be proved; and 5. Th e re must be a chain of evidence so compl e te as not to leave any reasonable gro u nd for the conclusion consistent with the innoce n ce of the a ccused and must show that in all hu m an proba b ility the act must have been done by the ac c used.

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These five golden principles constitute the panch s heel of the proof of a case based on circu m stantial evidence and in the absence o f a corpus deliciti.

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Hanumant v. The State of Madhya Pradesh [1952] SCR 1091 ; Tufail (Alias) Simmi v. State of Uttar Pradesh [1969] 3 SCC 198 ; Ramgopal v. State of Maharashtra AIR 1972 SC 656 ; and Shivaji Sahabrao Babode & Anr. v. State of Maharashtra [1973] 2 SCC 793 referre d to.

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3:4. T he cardinal principle of crim i nal jurispr u dence is that a case can be said to be prove d only when there is certain and exp l icit eviden c e and no pure moral conviction.”

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In lig h t of the prosecution evidence, the circumstances relied upon to establish the guilt of the Appellant c a n be broadly summarised a n d as follows:

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(i) Hi r ing of the Vehicle

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(ii) M o vement within Dhenkanal

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(iii) Pa u se after Brahmani Bridge

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(iv) Di v ersion and Assault

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(v) Dr a gging of the Driver

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(vi) La s t Seen Theory (vii) Re c overy of Dead Body (viii)Id e ntification of Accused

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(ix) Re c overy of Vehicle.

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(x) Se i zure of Weapon

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(xi) M e dical Opinion on Cause of Death

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(xii) Inj u ries on P.W.9

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The d e positions of the prosecution witnesse s , particularly P.W.9 and P. W .10, meticulously trace the sequence of events beginning wi t h the initial engagement between the accused persons and t h e vehicle owner, leading to the eve n tual assault. The narrative commences on the afternoon of 02.0 9 .1994, when the Appellant and co-accused Sudarsan Nayak arrived at Gandhi

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Chhak, Chou d war, and negotiated with P.W.10, the owner of the Ambassador car (bearing registration No. ORP-503 6 ), to hire the vehicle for tra v el to Dhenkanal. P.W.9, who was the driver of the said vehicle, corroborated this negotiation and state d that the fare was settled at ₹275, with ₹100 being paid upfront by Sudarsan for fuel. This initial interaction establishes the be g inning of a continuous c h ain of events involving the Ap p ellant. The movement of the vehicle from Choudwar to Dhen k anal and the inclusion of t he deceased, brother of P.W.10, in the journey further indica t es that the deceased was in the co m pany of the accused perso n s from the outset. Upon reaching D h enkanal, the accused direc t ed the driver to various locations wit h in the town, which, as per P.W.9, included stops at a college, a cinema hall, and other loc a l points, suggesting that the accused w ere familiar with the are a and had a pre-conceived plan in motion. The conduct of the Appellant and Sudarsan, including th e ir search for a boy and prolonged conversations, is not incident a l but reveals an emerging pattern of coordinated movement and d e liberation.

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Furthe r , the events unfold with the decision t o proceed to Kamakhyana g ar upon offering additional payment t o the driver, an aspect consistent in the depositions of both P.W.9 and P.W.10. The vehicle h alted at a roadside dhaba , where all parties took food, again r e inforcing the sustained proximity and interaction between the a c cused, the deceased, and the driver. T he trajectory of the journe y resumes with the crossing of Brah m ani Bridge, after which t h e accused disembarked and engaged in a private conversation b y the roadside for nearly half an hour. These

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details, captu r ed with clarity and consistency by P .W.9, reflect the continuati o n of a planned course of conduct. It i s shortly after this pause th a t the direction was given to divert i n to a kuchha road, an actio n not typical of passengers without a f i xed purpose. It is here, aft e r entering deeper into the isolated str e tch, that the incident takes a violent turn. The Appellant and c o -accused, as narrated by P . W.9, simultaneously assaulted both t he deceased and the driv e r with bhujalis while inside the v ehicle. The Appellant the n physically removed P.W.9 from the car, dragged him to a dista n ce, and stood over his chest, acts wh i ch, although not fatal in ou t come for P.W.9, indicate an intent to eliminate all witnesses.

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Moreo v er, the status of P.W.9 as an injured w itness lends added weight t o his testimony, as the law accords a h igher degree of credibility to such witnesses who have suffered b o dily harm in the same tran s action. His consistent version of eve n ts, delivered under oath a n d withstood through rigorous cross-examination, reflects not o nly clarity of memory but also absence of embellishmen t . His presence at the scene and the injuries suffered by hi m were medically corroborated, whic h fortifies his credibility an d rules out the possibility of false im p lication. The sustained pro x imity he shared with the Appellant and co-accused from the be g inning of the journey till the poi n t of attack reinforces the authenticity of his account.

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These accounts, rendered without material c ontradiction, form a contin u ous narrative that affirms the presenc e and conduct

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of the Appell a nt from the inception of the incident, setting the stage for furth e r analysis of the surrounding circums t ances. 17. One o f the other circumstances appea r ing in the prosecution c a se is with regard to the last-seen t h eory. While appreciating t h e prosecution case, in this regard, r e ference may be made to th e decision of the Hon’ble Apex Court in the matter of Satpal vs. State of Haryana reported in (2018) 6SCC 610, para 6 , as un d er: –

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“Crim i nal jurisprudence and the plethora of judici a l precedents leave little room for recons i deration of the basic principles for invoca t ion of the last seen theory as a face t of circu m stantial evidence. Succinctly state d , it may be a weak kind of evidence by itsel f to found c onviction upon the same singularly. B ut when it is coupled with other circumsta n ces such a s the time when the deceased was l ast seen w ith the accused and the recovery of the corpse being in very close proximity of ti m e, the ac c used owes an explanation under Sec t ion 106 o f the Evidence Act with regard to the circu m stances under which death may h a ve been t aken place. If the accused offers no explanation, or furnishes a wrong explanat i on, absco n ds, motive is established and ther e is corrob o rative evidence available inter alia in the form o f recovery or otherwise forming a c h ain of cir c umstances leading to the only infere n ce for gu i lt of the accused, incompatible with a ny possib l e hypothesis of innocence, convic t ion can be based on the same. If there be any d o ubt or bre a k in the link of chain of circumsta n ce, the be n efit of doubt must go to the accu s ed. Each case will therefore have to be examine d on its ow n facts for invocation of the doctrine”

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In the backdrop of the legal position enun c iated above, the facts of th e present case squarely attract the appl i cation of the last seen theo r y. The deposition of P.W.9, who is not only the driver of the ill-fated vehicle but also an injured eye w itness to the occurrence, st a nds as a pillar of credibility. His testi m ony clearly establishes th a t the deceased was last seen alive in t he exclusive company of t h e Appellant and co-accused Sudarsan, following a prolonged jou r ney which involved multiple halts, s hared meals, and continuous interaction. The sequence of events l eading up to the assault ha s been vividly narrated, including the d iversion into a kuchha roa d , the sudden attack on both occupa n ts inside the vehicle, and t h e deliberate act of dragging P.W.9 from the car and leaving h im for dead. That the Appellant a n d Sudarsan thereafter dro v e away with the deceased, who w a s then in an injured state, u nequivocally places them in the clos e st proximity of time and circumstance to the eventual rec o very of the deceased’s de a d body on the following morning. S ignificantly, no explanati o n has been offered by the App e llant in his statement, or otherwise. The silence in the f a ce of such incriminating p roximity becomes all the more tellin g , particularly when couple d with the recovery of the vehic l e from the Appellant an d co-accused only days later. In such a factual setting, the pr e sumption under Section 106 of the Evidence Act is clearly attract e d, shifting the onus on the Appellant t o explain the circumstances under which the deceased met his en d , a burden he has failed to d i scharge.

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Furthe r more, the sequence of recovery for m s a crucial link in the ch a in of circumstances pointing toward t h e complicity of the Appell a nt. The dead body of the deceased w a s discovered the very next morning in a bushy area close to th e spot where P.W.9 was a ssaulted and abandoned, affirmin g the close proximity of t i me and place between the last seen o c currence and the death. The identification of the body by P.W.10, who is none other than the brother of the deceased, rules out an y doubt with regard to the identity of the victim. Equally sign i ficant is the recovery of t h e Ambassador vehicle (bearing No . ORP-5036) from the poss e ssion of the Appellant and co-accuse d Sudarsan on 07.09.1994 at Kharagpur Bus Stand, days after th e occurrence, which further implicates them. Notably, both were f ound present at the spot an d were apprehended while obstructing p olice action, indicating co n sciousness of guilt. Adding to this i ncriminating sequence is t h e seizure of the weapon of offen c e, a bhujali annexed as M .O.I, which was recovered at the instance of accused Suda r san while in police custody. The said weapon was later medicall y opined to be capable of causing the i n juries found on both the d e ceased and P.W.9. The cumulative e f fect of these recoveries, e a ch independently admissible und e r law and properly prov e d, not only corroborates the ocular ve r sion but also reinforces the prosecution case with substantial circumstantial evidence that is cogent and consistent. While each c ircumstance may appear d i stinct, their convergence forms an un b roken chain pointing unmi s takably towards the authorship of the crime.

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Subse q uently, considerable emphasis has be e n laid by the defence on t h e alleged infirmities in the conduct of the Test Identification P arade (TIP), particularly the delay th e rein and the purported exp o sure of photographs of the Appellant prior to such identification. However, before delving into the legal effect of these content i ons, it is essential to consider th e established position of la w governing TIP and the evidentiary value of inCourt identifi c ation. The Hon’ble Apex Court in t he matter of Kunjumon @ Unni Vs. State of Kerala reported i n AIROnline 2012 SC 631 , has made out the following –

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T h e advisability of holding a TIP (particularly with r e ference to avoidable or unreasonable delay) has be e n emphasized in Rameshwar Singh v. State of J & K, (1971) 2 SCC 715 by tetherin g it to “prope r administration of justice”. In Budhsen v. State of Madhya Pradesh, (1970) 2 SCC 128 it has been p i tched to “the life and liberty of an ac c used”. Howe v er, in Budhsen an exception has bee n noted “when for example, the Court is impresse d by a particular witness, on whose testimony it ca n safely rely, without such or other corroboration.”

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A more useful and elaborate discussion on the subjec t is to be found in Malkhansingh v. State of Madhya Pradesh, (2003) 5 SCC 746 where t he TIP is linked to the requirement of Section 9 of the Evide n ce Act, 1872 and coupled with the caut i on that in the a bsence of a TIP, the weight to be atta c hed to the ide n tification of the accused in Court is a matter for the Courts of fact to decide.

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Si m ilarly, in Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191 a fter a discus s ion on the subject, it was concluded t h at, “… … the test identification is a part of the inves t igation and is v ery useful in a case where the accused are not known beforehand to the witnesses. It is used o nly to corrob o rate the evidence recorded in the Court.

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Theref o re, it is not substantive evidence. The actual eviden c e is what is given by the witnesses in the Court. ” It was noted in Vijay with reference to State of Himachal Pradesh v. Lekh Raj, (2000) 1 SCC 247 th a t the holding of a TIP is “a rule of pr u dence which is required to be followed in cases where the accuse d is not known to the witness or compla i nant.”

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In the present case, we are not dealing w ith the eviden c e of any ordinary witness – we are d ealing with a victim of a crime, someone who was d irectly at the r eceiving end of the actions of the a p pellant and w h o came face to face with the threat and intimi d ation by the appellant. The evidence o f such a victim of a crime must be placed, in our opini o n, on a some w hat higher pedestal, in terms of the cre d ibility attached to it, than the evidence of any other w itness. We ne e d to seriously consider a partial shift i n focus in the “ proper administration of justice” by in c luding not only the “life and liberty of an accus e d” but issues of victimology and the treatment of v ictims. Theori e s concerning criminal law an d the administration of criminal justice are fast dev e loping and w e need to keep up with these developme n ts.

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It is fu rther held in the case of Prakash Vs. State of

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Karnataka re p orted in (2014) 12 SCC 133 , as under –

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A n identification parade is not mandato r y¹ nor can it b e claimed by the suspect as matter o f right.² The p u rpose of pretrial identification eviden c e is to assure the investigating agency tha t the investi g ation is going on in the right directi o n and to provide corroboration of the evidence to be given b y the witness or victim later in Cour t at the trial.³ If the suspect is a complete stranger to the witnes s or victim, then an identification pa r ade is

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1 Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284

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2 R. Shaji v. State of Kerala, (2013) 14 SCC 266

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3 Rameshwar Sin g h v. State of J&K, (1971) 2 SCC 715

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desira b le⁴ unless the suspect has been seen by the witnes s or victim for some length of ti m e.5 In Malkhan Singh v. State of M.P.12 it was h e ld:

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“Th e identification parades belong to the stage of i n vestigation, and there is no provision i n the Code of Criminal Procedure which oblig e s the inv e stigating agency to hold, or confers a right upo n the accused to claim a test identifi c ation par a de. They do not constitute subst a ntive evi d ence and these parades are esse n tially gov e rned by Section 162 of the Co d e of Cri m inal Procedure. Failure to hold a test ide n tification parade would not make ina d missible the evidence of identificati o n in Cou r t. The weight to be attached to such ide n tification should be a matter for the C ourts of f a ct.”

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In lig h t of the settled legal position on th e evidentiary value of a T. I. Parade, the contentions raised by the defence regarding del a y and prior exposure to photographs m erit critical examination i n the factual backdrop of the prese n t case. The deposition of P .W.9, who was not only the driver o f the vehicle but also an injured eyewitness, reflects an u ninterrupted association wi t h the Appellant and co-accused Suda r san from the very inceptio n of the journey. The case recor d and above discussed cha i n of events, clearly establish that the y all travelled together and i n the course, they stopped for a prol o nged private conversation b etween the Appellant and Sudarsan a fter crossing the Brahmani Bridge, when they got down from th e vehicle and stood in seclusion for about thirty minutes before r eturning and directing a di v ersion into a ‘kuchha’ road. It is at t h is point that

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4 Mulla v. State o f U.P., (2010) 3 SCC 508, Kishore Chand v. Stat e of H.P., (1991) 1 SCC 286

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5 State of U.P. v. B oota Singh, (1979) 1 SCC 31

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the fatal attac k was launched against the deceased a nd the brutal assault on P. W .9 took place.

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The t o tality of this sequence from hiring t h e vehicle to the assault, s p ans over several hours and includes direct verbal and physical interaction, visual exposure, and an orchestrated plan that play e d out in the presence of P.W.9. Such detailed and sustained pr o ximity furnishes a clear opp o rtunity for identification of the accused based on their phys i cal features, voice, gesture s , and conduct. It is in this light that the submission made by the d efence regarding the delay in conduc t ing the T. I. Parade and th e alleged exposure to photographs fa l ls flat. Even assuming arg u endo that photographs of the Ap p ellant were available with the I.O. and may have been seen b y the witness, P.W.9 has cat e gorically denied such exposure in his e vidence and the claim rem a ins unsubstantiated. More crucially, t h e substantial dock identifi c ation made during trial, in the fac e of incisive cross-examin a tion, far outweighs the limited corrob o rative value of TIP, which as rightly held in various decisions o f the Hon’ble Apex Court is neither mandatory nor conclusive.

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Here, t he very essence of a TIP, with regard t o the need to test the abilit y of a witness to identify a stranger, s t ands diluted, since the accu s ed in question remained for hours in the company of the witne s s and engaged in multiple physica l and verbal interactions. T he recognition in Court by both P.W.9 and P.W.10, especially the former who sustained serious injuries and was left to die, carries a n intrinsic weight that eclipses the irr e gularities, if any, in the formal TIP. Accordingly, the de f ensive plea

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predicated on procedural infirmities in TIP not onl y lacks merit in law but is factually incongruous with the su b stantive and unshaken testi m ony of the eyewitnesses.

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It is tr i te to mention here that in assessing the evidentiary value of iden t ifying an accused in criminal trials , particularly where the acc u sed were previously unknown to the witnesses, it is now well settled that a Test Identification P a rade is not substantive e v idence but a corroborative one, a s a step in investigation to lend assurance to the prosecuti o n case. The substantive pi e ce of evidence is the identification o f the accused by the witness in Court during trial. The necessity or otherwise of holding a TIP must be viewed in the factual context of each case. Where the wi t ness had prolonged interaction with t h e accused or remained in close proximity during the commi s sion of the offence, the a b sence or delay in holding TIP is not fatal to the prosecution. M ore so, when the witness is an injure d victim who directly faced the perpetrators and was subjected t o assault, his ability to rec a ll and recognise the assailants is gr e ater and his testimony co m mands higher probative value.

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Furthe r more, the argument as to the ti m e of death appearing in t h e report of the doctor conducting po s t mortem of the deceased vis-à-vis the time of occurrence na r rated by the witnesses is n ot found discrepant. The time ment i oned by the doctor is a b r oader one and not in exactitude. H owever, the proximity of t ime of death shown being not highl y improbable the inaccurac y of the time stated by the witness an d that the one mentioned in the autopsy report cannot be seen w ith doubt an

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otherwise cor r oborated version. From the evidence, t he following circumstances found recapitulated by the learne d trial Court incriminating f or the Appellant to get entangled in t h e murder of the deceased. I n all, therefore, the evidence of the P .W.9 and 10 besides the c i rcumstances proved establishes bey o nd doubt to hold the findi n gs recorded by the Court is just and legal and there is no infirmit y whatsoever to interfere there with in assaying the case otherwis e .

¶154

In vie w of the foregoing analysis, all th e contentions raised by the learned counsel for the Appellant ha v e been duly considered a n d addressed in the discussion. Th e arguments relating to t h e alleged infirmities in the Test I dentification Parade, the c l aimed non-involvement of the App e llant in the actual assault on the deceased, and the plea fou n ded on the remission gr a nted to co-accused Sudarsan Nai k have been examined in l i ght of the settled legal principles and the evidence on record.

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As a r esult, this Court finds that the prosecution has succeeded i n establishing each of the i ncriminating circumstances with clarity, and the cumulative effec t of the same leads to the o nly reasonable inference of the App e llant’s guilt. The circumst a nces relied upon, starting from the h iring of the vehicle, conti n uous association with the deceased a n d the injured witness, the m otive-indicating conduct, the last-see n theory, the recovery of t h e dead body, the seizure of the veh i cle from the possession of the Appellant, and the recovery of t h e weapon of offence capab l e of inflicting the injuries observed, stand proved

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beyond reaso n able doubt. These circumstances a re not only consistent wit h the guilt of the Appellant, but also exclude every other hypoth e sis except that of his guilt. Applying the five cardinal princ i ples enunciated by the Hon’ble Supr e me Court in Sharad Birdhichand Sarda ( Supra ), this Court is satisfied that the chain of e vidence is so complete as to leave n o reasonable ground for a conclusion consistent with the inno c ence of the Appellant. H e nce, the impugned judgment reco r ded by the learned trial Court warrants no interference.

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Accor d ingly, the Appeal stands dismiss e d, and the judgment of c o nviction and sentence dated 24.08.1998 passed by the learned S e ssions Judge, Dhenkanal-Angul in Sessions Trial Case No. 30- D of 1995 against the present Appell a nt is hereby confirmed.

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I, agree.

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(Chittaranjan Dash) Judge (S.K. Sahoo) Judge

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A.K.Pradhan/Bijay

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Signature Not Verified

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Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORI SSA Date: 25-Jul-2025 11:00:24

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