Jataram Ho Vs State

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLA No.20 of 2002

An appeal from t h e judgment and order dated 02. 0 5.2002 passed by the Sessi o ns Judge, Mayurbhanj, Baripada in S essions Trial Case No.212 o f 2000.

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Jataram Ho	.......	Appel lant
	-Versus-
State of Odisha	.......	Respo ndent
For Appella nt:	-	Mr. Debi Prasad Senior Advocate Dhal
For Respon dent:	-	Mr. Sarat Ch. Pr Addl. StandingC adhan ounsel

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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AND

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THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing and Judgment: 14.10.2025

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By the Bench: Appella n t Jataram Ho along with co-accused S itaram

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Ho faced trial in t he Court of the learned Sessions Judge, Mayurbhanj, Baripa d a in Sessions Trial Case No.212 of 2 000 for the offence punisha b le under Section 302/34 of the Indian Penal

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Code (in short ‘IPC’) on the accusation that on 14.01. 2 000 at about 3.00 p.m. at village Brahmanipal, in furtherance of their common intention, they committed murder of Gajend r a Dalai (hereinafter ‘deceas e d’).

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The lear n ed trial Court, vide impugned judgment and order dated 02.0 5 .2002, though acquitted the co- a ccused Sitaram Ho of the c h arge under section 302/34 of IPC, b u t found the appellant guilty under section 302 of IPC and senten c ed him to undergo imprisonment for life.

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Prosecution Case :

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The pro s ecution case, as per the first info r mation report (hereinafter ‘ the F.I.R.’) (Ext.1) lodged by one M angalal Singh (P.W.1), the Ward Member of village Brahmanipal, on 15.01.2000 before t he Officer in-charge of Sarat police station, in short, is that on 1 4.01.2000 he had been to the villag e pond, locally known as ‘ P adma Pokhari’ to get fish coming t o know about fish catching a ctivities going on. At about 3.30 p. m ., while he was returning home, on the way Baidhar Ho (P.W.5) m et him and told him that about half an hour back, after returni n g from the pond, he found the dead body of the deceased was lying on the thrashing floor o f his house with bleeding injuries on t he legs and right hand. G e tting such information from P.W.5 , P.W.1

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rushed to the spot a nd found the dead body of the decea s ed was lying in the thrashing floor with injuries on his legs and h a nd. He got information from Champa Hembram (P.W.3), the wife of P.W.5 that both the appellant Jataram Ho and co- a ccused Sitaram Ho quarrelled with the deceased and assaul t ed the deceased by mean s of a ‘Budia’ (axe) and killed him . P.W.1 intimated the matt e r to the Gramarakhi, who also cam e to the spot and saw the d e ad body. Since by that time, night had set in, F.I.R. was lodge d on the next day i.e. on 15.01.2000.

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On the b asis of the report submitted by P.W. 1 , Sarat P.S. Case No.03 da t ed 15.01.2000 was registered under section 302/34 of IPC aga i nst the appellant Jataram Ho and the coaccused Sitaram Ho and P.W.9 Banabihari Mohanty, the O .I.C. of Sarat police station t ook up the investigation of the case.

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During t he course of investigation, P.W.9 e x amined the informant (P.W.1) and other witnesses, visited the s p ot and prepared spot map (Ext.8), held inquest over the dead body of the deceased an d prepared the inquest report (Ext.5), dispatched the dea d body for post mortem examination t hrough the constable vide d ead body challan (Ext.6), searched for the accused persons, but found them absconding. On 16.01.2000, he arrested the appell a nt so also the co-accused Sitaram Ho and

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while in police cus t ody, the appellant stated to have g iven a statement regardin g concealing the weapon of offence i .e. axe (M.O.I) and accordingly, his disclosure statement under section 27 of the Evidence Act was recorded vide Ext.7 and t he axe (M.O.I) was recove r ed as per the seizure list Ext.2/1. A brown colour napkin was s eized on 16.01.2000 on being prod u ced by co-accused Sitara m Ho as per seizure list Ext.3/1 a nd on 17.01.2000, both the appellant and the co-accuse d were forwarded to the C o urt. On 26.04.2000, P.W.9 made over the charge of investigation to P.W.7 Damodar Mohapa t ra, his successor, who duri n g course of his investigation, sent th e seized articles to the S.F. S .L., Bhubaneswar for chemical exa m ination and on completion of investigation, he submitted charg e sheet against the appell a nt and the co-accused Sitaram H o under section 302/34 of IPC.

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Framing of Charges :

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On rec e ipt of the charge sheet, the ca s e was committed to the Court of Session following due pr o cedure, where the learne d trial Court framed charge agai n st the appellant so also the co-accused Sitaram Ho as aforesaid. Both the appellant and t h e co-accused pleaded not guilty and claimed

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to be tried and ac c ordingly, the sessions trial proced u re was resorted to establis h their guilt.

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Prosecution Witnesses, Exhibits & Material Objects :

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In order to prove its case, the prosecution e x amined

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as many as nine nu m bers of witnesses.

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P.W.1 M angalal Singh, who is the Ward Me m ber of Village Bramhanipal , is the informant in the case. He sta t ed that on being informed b y Baidhar Ho (P.W.5) regarding the d eath of the deceased, he h a d been to the spot and found that t h e dead body of the deceas e d was lying with injuries on his leg a nd also found blood on th e thrashing floor. He further stated t hat he along with P.W.5 w ent to Grama Rakshi (P.W.2) and t o ld him about the death of the deceased and P.W.2 came to the spot and saw the dead body a nd on the next day, they went to th e police station and he orally reported the matter to the police, which was reduced into writing. He proved his report as Ext.1.

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P.W.2 Durga Prasad Gandual was the Grama Rakshi and also a co-villa g er of the appellant and he stated t hat on getting information from P.W.1, he had been to the s p ot and found the dead bod y of the deceased lying on the thrashing floor of P.W.5. He also a c companied P.W.1 to the police stati o n when F.I.R. was lodged.

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P.W.3 C h ampa Hembram, who is the wife o f P.W.5, did not support the prosecution case for which she was d eclared hostile by the prose c ution.

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P.W.4 Ubuga Ho is a witness to the seizure but he has not supported t h e prosecution case.

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P.W.5 B a idhar Ho is a witness to the seizure but he also did not support the prosecution case.

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P.W.6 J asoda Dalai, who is the widow of the deceased, has stat e d that on the date of occurrence, s he had been to the forest and on her return, she sat on the verandah of her house and at t h at time, one Joda and Rabi arrived n ear her and used filthy lang u age and threatened to kill her and t h ey also told that they had already killed her husband (deceas e d). On hearing the same, s he had been to the village Brahmanipal and saw the dead body o f her husband lying in the thrashing floor of P.W.5 with injuries o n his leg and hand. She also stated t hat she found drops of blo o d near the dead body and thereaf t er, she went to the Grama R akhi and reported the matter.

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P.W.7 Damodar Mohapatra was the O.I.C. o f Sarat police station, who t ook over charge of investigation fro m P.W.9 and submitted the c h arge sheet.

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P.W.8 D r. Srinivas Naik was working as S urgery Specialist in S.D. Hospital, Udala, who conducted post m ortem examination over the dead body of the deceased and pr o ved his report vide Ext.4.

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P.W.9 B a nabihari Mohanty, was working as O .I.C. of Sarat police stati o n, who investigated the case fr o m the beginning and hand e d over the charge of investigation to P.W.7.

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The p r osecution proved eleven numb e rs of documents as exhi b its. Ext.1 is the F.I.R., Ext.2/1, Ext. 3 /1 and Ext.9 are the seizur e lists, Ext.4 is the post mortem repo r t, Ext.5 is the inquest repor t , Ext.6 is the dead body challan, Ext.7 is the disclosure stateme n t of the appellant, Ext.8 is the sp o t map, Ext.10 is the Che m ical Examination Report and Ext.1 1 is the report of the Serolo g ist.

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The pr o secution also produced two num b ers of material objects. M. O .I is the axe and M.O.II is the napki n .

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Defence Plea :

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The def e nce plea of the appellant is one of de n ial and it is pleaded that on account of political hostility, he h a s been falsely implicated in the case.

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Findings of the Trial Court :

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The learned trial Court, after analysing the evidence of the doctor (P.W. 8 ) and the report (Ext.4) submitted b y him, came to hold that t h e prosecution has proved that the d e ceased died a homicidal de a th. Relying on the evidence of extra judicial confession made by the appellant before P.W.6 and the medical evidence adduced b y the doctor (P.W.8) and the recovery of M.O.I at the insta n ce of the appellant as stated by the I.O. (P.W.9) though acq u itted the co-accused Sitaram Ho, b u t found the appellant guilty u nder section 302 of IPC.

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Contentions of the Parties :

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Mr. De b i Prasad Dhal, learned Senior A d vocate appearing on behalf of the appellant emphatically conten d ed that the conclusions arri v ed at by the learned trial Court is co m pletely erroneous and the r e are no clinching evidence on re c ord to sustain conviction o f the appellant under section 302 I P C. It is argued that though in the F.I.R., it is stated that the in f ormant (P.W.1) came to kn o w from P.W.3 that the appellant and the coaccused assaulted t he deceased during quarrel, but P. W .3 has been declared hostile by the prosecution and even the in f ormant (P.W.1) has not st a ted in his evidence to have recei v ed any information from P.W.3 that she was an eye witness to the

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occurrence and tha t the appellant and the co-accused S itaram Ho were the assaila n ts of the deceased. Learned counsel further submitted that P.W. 6 , who is widow of the deceased stat e d to be a witness to the ex t ra judicial confession, has simply sta t ed that one Joda and Rabi h ad disclosed before her that they h a d killed her husband (dece a sed), but she has stated that she did not know the accused p ersons standing in the dock. Ther e fore, it cannot be said that the appellant came before P.W.6 an d made an extra judicial co n fession. He further argued that even though as per the prosecut i on case, one axe was seized at the instance of the appellant as d eposed to by the I.O. (P.W.9) and t he C.E. report (Ext.10) also indicates that human blood of Group ‘A’ was found in the said w eapon, since the prosecution has f a iled to establish any link b etween the said weapon with the c rime in question, mere recovery of the axe (M.O.I) has got no relevance in this case and ev e n though it can be said that the pro s ecution has proved the ho m icidal death of the deceased, but in a bsence of any direct eviden c e to establish the complicity of the a p pellant in the murder of t h e deceased, the circumstances avail a ble on record do not fo r m a complete chain and therefo r e, the conviction of the ap p ellant is not sustainable in the eyes o f law.

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Mr. Sa r at Chandra Pradhan, learned A d ditional Standing Counsel appearing for the State support e d the impugned judgment and the order of conviction.

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Whether the deceased died a homicidal death? :

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Before a dverting to the contentions raised by the learned counsel for the respective parties, let us first e xamine whether the prose c ution has successfully established that the deceased met with a homicidal death or not. Apart from the inquest report (Ext . 5) prepared by P.W.9, it appears that the Medical Officer (P.W.8) attached to the S.D. Hospital, Ud a la, who conducted the post - mortem examination over the dead body of the deceased on 16.01.2000, found the following e xternal injuries:

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“(A) There were four nos. of lacerated wou n ds on the posterior aspect of left thigh. All t he injuries t ransversely placed. All the injuries w e re bone de e p of

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(i) size of the injury 4” x 2” x 3” (ii) Siz e of the injury 5” x 3” x 2” (iii) Siz e of the injury 3” x 2” x 3” (iv) Siz e of the injury 4” x 1” x 3”

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(B). There were three lacerated injuries on t he medial aspect of left leg below knee.

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(i) 1” below the knee joint size 4” x 1” x 2 (ii) 2” b e low knee joint size 4” x 2” x ½” (iii) 3” b e low knee joint size 3” x 1” x 2”

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(C) C o mpound fracture of right arm me d ial aspect, 3 nos. of lacerated wounds on t he posterio r lateral aspect of right arm, compo u nd fracture of right femur, which 2 nos. of lacera t ed wounds about 4” knee posteriorly. The fract u re of parti a l and lacerated wound on the ante r ior aspect o f knee.

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The doc t or further stated that the cause of de a th was due to severe blee d ing and shock. He proved the post- m ortem report marked as E xt.4 and further opined that the c a use of death was due to se v ere bleeding.

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Nothing has been brought out in the crossexamination of P.W.8 to challenge regarding the homicid a l death of the deceased.

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Mr. D.P. Dhal, learned Senior Advocate appe a ring for the appellant has al s o not challenged the evidence of the d octor.

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Thus, w e are of the view that on the basi s of the evidence of the doc t or (P.W.8), the P.M. report finding vi d e Ext.4 and the inquest rep o rt (Ext.5), the learned trial Court ha s rightly

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arrived at the conclusion that the prosecution has suc c essfully established that the deceased died a homicidal death.

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Absence of direct evidence :

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The informant (P.W.1) has mentioned in th e F.I.R. that he came to kn o w from P.W.3 that the appellant as well as the co-accused ass a ulted the deceased by means of a ‘ Budia’ during course of a quarrel, however the evidence of P .W.1 is silent that any such information has been received by him from P.W.3. Moreover, P .W.3 has stated that she was not present when the occurren c e took place during Makar festival and that she could not say about the occurrence. The prosecution has declared P.W.3 as hostile. Therefore, there is no direct evidence on record for the purpose of finding the complicity of the appellant in the cri m e in question.

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Circumstantial evidence :

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Law is w ell settled that when a case rests u p on the circumstantial evide n ce, such evidence must satisfy the f o llowing tests: (i) the circu m stances from which an inference of guilt is sought to be drawn, must be cogently and firmly establis h ed; (ii) those circumstance s should be of a definite tendency unerringly pointing towards g u ilt of the accused; (iii) the circum s tances,

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taken cumulatively, should form a chain so complete th a t there is no escape fro m the conclusion that within all human probability the crime was committed by the accused a n d none else. The circumstantial evidence in order to sustain co n viction must be complete and incapable of explanation of an y other hypothesis than t hat of the guilt of the accuse d . The circumstantial evid e nce should not only be consistent w ith the guilt of the accu s ed but should be inconsistent w ith his innocence. In a cas e based on circumstantial evidence, t here is always a danger th a t conjecture or suspicion may take t h e place of legal proof. The Court has to be watchful and ens u re that suspicion, howsoev e r strong, should not be allowed to t a ke the place of proof. A m o ral opinion howsoever strong or genuine and suspicion, howsoev e r grave, cannot substitute a legal p roof. A very careful, cautio u s and meticulous appreciation of evi d ence is necessary when th e case is based on circumstantial e v idence. The prosecution mu s t elevate its case from the realm of ‘may be true’ to the plane of ‘must be true’.

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P.W.1 a n d P.W.2 are the post occurrence witnesses and they have stat e d to have come to the spot and fo u nd the dead body of the de c eased lying with some injuries.

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P.W.6 J asoda Dalai, who is the widow of the deceased, has state d that she did not know the accused p ersons. However, she state d that the occurrence took place durin g Makar festival and she had been to the forest and while she wa s sitting on the verandah of her house, at that point of time, o n e Joda and Rabi arrived n e ar her and threatened her to kill and also stated that they ha d killed her husband (deceased). She h owever stated that she saw the deceased lying in the thrashing floor of Baidhar Ho (P.W.5).

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In view o f the evidence of P.W.6, it does not appear that the persons, w h o made extra judicial confession be f ore her are the appellant a n d the co-accused Sitaram Ho inas m uch as she has stated th a t she did know the accused perso n s. The prosecution has al s o not brought on record that th o se two persons, who mad e extrajudicial confession before her are the accused persons st a nding in the dock. Therefore, we ar e of the view that it cannot be said that the appellant made any extra judicial confession b efore P.W.6 and thus the learned tri a l Court committed error in p lacing reliance on the evidence of P. W .6 and holding her to be a w itness to the extra judicial confessio n of the appellant before her.

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Recovery of Axe (M.O.I) :

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The evi d ence of the I.O. (P.W.9) only indica t es that after arrest of the appellant, he made a disclosure st a tement which was recorde d as per Ext.7. The I.O. further stated that one axe (M.O.I) was seized by him. The evidence is co m pletely silent to the effect that after giving disclosure statem e nt, the appellant led the p o lice party and the witnesses to the p lace of concealment and that at the instance of the appellant, t he axe was seized. No in d ependent witness has been examined to substantiate the se i zure of axe (M.O.I) at the instance of the appellant. Therefor e , the seizure of M.O.I does not clearly come within the purview o f section 27 of the Evidence Act.

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Even t h ough the Chemical Examination Report (Ext.10) indicates t hat the axe which was seized as p er the seizure list Ext.2/1 was found to be containing human b lood of Group ‘A’, but not h ing has been established to conn e ct this particular weapon w ith the offence in question and mor e over, it has not been prove d that the deceased was having bloo d group of ‘A’. Therefore, o n the basis of recovery of axe (M.O.I ) as per the seizure list Ext. 2 /1 and C.E. Report finding, it cannot be said that the prosecutio n has proved the charge under sectio n 302 of IPC against the app e llant.

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Conclusion :

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In view of the foregoing discussions, we ar e of the humble view that t he learned trial Court was not jus t ified in relying on the so-c a lled extra judicial confession stated t o have been made before P.W.6 as well as recovery of M.O.I for convicting the app e llant under section 302 of IPC. Thus, the conviction of the ap p ellant under section 302 of IPC is no t legally sustainable in the e y es of law.

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In the r esult, the Criminal Appeal is allow e d. The impugned judgmen t and order of conviction of the a p pellant under section 30 2 of the IPC and the sentence passed thereunder is hereb y set aside and the appellant is acq u itted of the charge under se c tion 302 of IPC.

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The app e llant is on bail by virtue of the orde r of this Court. He is disch a rged from the liability of bail bon d s. The personal bonds and the surety bonds stand cancelled.

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S.K. Sahoo, J.

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Signature Not Verified

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............................ . ..... Chittaranjan Dash, J.

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Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Orissa High Court, Cuttack Location: HIGH COURT OF ORIThe 14^th SSAOcto ber 2025/PKSah o o Date: 17-Oct-2025 13:23:40

Jataram Ho v. State

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