IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No. 182 of 2001 & CRA No. 166 of 2001 (From the judgment and order dated 13.08.2001 passed by learned Addl. Sessions Judge, Jeypore in S.T. Case No. 38/99) AFR CRA No. 182 of 2001 Surendranath Sahoo @ Tuna …. Appellant -Versus- State of Orissa ….. Respondent CRA No. 166 of 2001 (1) K. Balaji Achary (2) K. Maleswar Achary …. Appellants -Versus- State of Orissa ….. Respondent Advocate(s) appeared in this case through hybrid mode: For Appellant(s) : Mr. Azad Keshari Dash, Advocate [ in CRA No. 182 of 2001] Mr. Sudipto Panda, Advocate [ in CRA No. 166 of 2001] For Respondent(s) : Mr. Debaraj Mohanty, Addl. Government Advocate __________________________________________________________ CORAM: THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA Date of Hearing : 12.03.2026 :: Date of Judgment: 19.03.2026 SASHIKANTA MISHRA, J. The appellant, Surendranath Sahu @ Tuna in CRA No. 182 of 2001 faced trial in ST Case No.38 of 1999 in the Court of learned Addl. Sessions Judge, Jeypore for committing the offence under Sections 302/394/201 of IPC. The appellants, K. Balaji Achary and K. Maleswar Achary in CRA No. 166 of 2001 faced trial in the aforementioned case under Sections 414/34 of IPC. 2. By judgment dated 13.08.2001, accused Surendranath Sahu was convicted under Sections 302/394/201 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default, to undergo RI for another year for the offence under Section 302 IPC and to undergo RI for 5 years for the offence under Sections 394/201 IPC. All such sentences were directed to run concurrently. Accused K. Maleswar Achary and K. Balaji Achary were convicted under Section 414 IPC and sentenced to undergo RI for 2 years each, and to pay a fine of Rs.2000/- each, in default, to undergo RI for six months. 3. Prosecution case, briefly stated, is as follows: The deceased Rekhamani Panda, aged about 70 years used to reside in her son Arun Kumar Panda’s house at Bikramnagar in Jeypore. On 09.09.1998, she left home for her elder son’s house at Bariniput at about 1 p.m. by stating that she would take a rickshaw. On 13.09.1998 morning, her said elder son, namely Siba Prasasd Panda came to take his mother (deceased) to his home. Hearing this, family members of Arun Kumar Panda were surprised and started searching for the deceased in friends’ and relatives’ houses. Since her whereabouts could not be traced, a missing report was lodged by Arun Kumar Panda at Town P.S., Jeypore on 14.09.1998. It was stated that while leaving home, the deceased was carrying her pension book, some clothes in a plastic bag, cash of Rs.4,000/- and had worn several gold ornaments. It was further stated in the report that having regard to the valuable gold ornaments worn by her, as also the cash carried by her, some antisocial or a rickshaw puller may have committed some untoward act. Two days later, i.e., on 16th September, 1998, a dead body in a gunny bag was found floating in the main canal of upper Kolab Dam Project near Minaguda under Borigumma Police Station limits. The staff of Borigumma P.S. along with sons of the deceased arrived there. The gunny bag was fished out from the canal and was opened. The sons of the deceased identified the dead body as being that of their mother. The OIC of Borigumma P.S. drew a plain paper FIR alleging that some unknown person had murdered the victim lady, took away her gold ornaments and after concealing the dead body in the gunny bag with proper stitching, had thrown it in the canal water with the intent of causing disappearance of evidence. On such FIR, PS Case No.99 of 1998 was registered under Sections 302/201/394 IPC, followed by investigation. In course of investigation, the investigating officer found that on the date of occurrence the deceased had tried to hire a rickshaw to Bariniput but accused Surendranath Sahu, who owned a pan shop in that street, assured to help her board a bus to Bariniput as the same would be cheaper. He then took the deceased to his house where he killed her, robbed her valuables and put her dead body in a gunny bag. Later, with the help of a rickshaw puller he carried the dead body to the canal, threw the same in the water as also the plastic bag containing the personal belongings of the deceased. Later, with the help of K. Maleswar Achary he melted the gold ornaments and with the help of K. Balaji Achary he sold the purified gold to another person. He was thus, arrested and while in police custody, he led to the discovery of the workshop where the gold was melted and purified and also the place of concealment of the plastic basg. Upon completion of investigation, charge sheet was submitted against the accused persons. Page 6 of 25 4. Accused Surendranath Sahoo took the plea of denial and false implication. 5. The other two accused persons, while admitting that they had melted gold belonging to K. Balaji Achary had sold it to K. Dharma Rao for their financial requirement. 6. To prove its case, prosecution examined 19 witnesses and exhibited 20 documents. Besides, prosecution also proved 10 material objects. The defence, on the other hand, examined 7 witnesses and exhibited one document. 7. The trial Court, noting the absence of direct evidence of the crime examined the circumstances arising out of the evidence relied upon by the prosecution to prove its case against the accused persons. The evidence of the son of the deceased, P.W.-7, who had lodged the missing report, was heavily relied upon by the trial Court as proving the fact that the deceased had left home for Bariniput at about 1 p.m. on 09.09.1998 wearing several gold ornaments and carrying cash with her but she never reached Bariniput. His evidence was found to be corroborated by the daughters-in-law of the deceased- P.Ws. 17 and 18. The trial Court further relied upon the evidence of P.Ws. 8 and 9, who were related to the landlord of the accused and who had seen the deceased in the company of the accused on the fateful day. The trial Court then relied upon the evidence of the rickshaw puller, P.W.- 12. Even though he turned hostile, he admitted to have implicated the accused in his statement before the I.O. under Section 161 of Cr.P.C. and before the Magistrate under Section 164 of Cr.P.C. Further, relying upon the evidence relating to seizure of personal belongings of the deceased and the evidence of the witnesses to the disclosure statement, the trial Court held the same as an important circumstance pointing towards guilt of the accused. Since the evidence, according to the trial Court, revealed that the other two accused persons were involved in melting and purchasing the gold ornaments of the deceased at the instance of the accused, they were also held guilty. Taking note of the autopsy surgeon’s opinion, it was held that the death was homicidal in nature. Since the gold ornaments of the deceased were found to have been taken by the accused, Surendranath, the motive of the crime was held to be robbery. The trial Court, on analysis of the entire evidence found 11 incriminating circumstances to have been conclusively established, which taken together formed a strong chain pointing towards the guilt of the accused. The accused persons were thus, convicted and sentenced as already stated hereinbefore. 8. Heard Mr. Azad Keshari Dash, learned counsel appearing for the accused- Surendranath Sahoo (CRA No.182 of 2001); Mr. Sudipto Panda, learned counsel appearing for accused- K. Balaji Achari and K. Maleswar Achari (CRA No. 166 of 2001) and Mr. Debraj Mohanty, learned Addl. Government Advocate for the State. 9. Mr. A.K. Dash assails the impugned judgment on the following grounds: (i) Though P.W.-7 described each individual ornament worn by the deceased including its weight at the time of leaving the house, he was not present when the deceased actually left the house for which his evidence in this regard should not have been accepted by the trial court. Furthermore, the daughters-in-law of the deceased, PWs 17 and 18 who were present when the deceased left home did not specify the ornaments which creates a doubt. ii) The so-called seizure of the gold locket and ear tops from the housed of the co-accused on 20.09.1998 by the I.O. cannot be accepted in view of his admission that he had not put them in sealed cover had retained them with him till 15.12.1998. (iii) On the above ground also, the so-called TI parade of the ornaments loses its value. Page 10 of 25 (iv) The last-seen theory projected by the prosecution through the evidence of PWs 8 and 9 cannot be accepted in view of the huge gap between the time when they allegedly saw the deceased and the recovery of her dead body. 10. Mr. Sudipto Panda assails the judgment of conviction of the other accused persons also on the ground that there is no evidence of the so-called seized articles being kept in proper custody. He further argues that even accepting the prosecution evidence that the co-accused had visited the shop of PW-10, it not having further proved that accused K. Balaji Achary and accused K. Maleswar Achary dealt with the ornaments knowing the same to be stolen property, the offence under Section 414 Cr.P.C. is not attracted. The trial Court could not have placed reliance on the stray statement made by the accused K. Maleswar Achary in his statement under Section 313 Cr.P.C., which is not admissible evidence. 11. Per contra, Mr. Debraj Mohanty would argue that there is clear evidence in the form of P.W.-7 that the deceased had left home wearing several gold ornaments which were specifically named by him and by carrying cash of Rs.4,000/- along with her pension book. P.Ws. 8 and 9 had seen the deceased sitting on the veranda of the house of accused Surendranath Sahu after 1 pm. No one else had seen her thereafter till her dead body was recovered from the canal. Mr. Mohanty further argues that the accused while in custody gave discovery of the plastic bag containing personal belongings of the deceased and also led the police to the shop/workshop of the other two accused persons, where he had gone to melt/purify gold and sell the same. He further argues that even though the rickshaw puller PW-12 turned hostile, yet he admitted to have given statement before the Magistrate which was recorded under Section 164 of Cr.P.C.. All these circumstances and evidence according to Mr. Mohanty clearly proves the guilt of the accused persons for which they were rightly convicted. 12. Having noted the rival contentions, we shall now proceed to analyse the evidence on record and the reasoning adopted by the trial Court vis-à-vis these contentions. 13. As already stated, prosecution has heavily relied upon the evidence of PWs-7, 8, 9 and 12 to hold that the accused, with the intention of robbing the deceased of her gold ornaments and cash, committed her murder and threw her dead body to the canal after concealing it in a gunny bag. The prosecution has further relied upon the evidence of PWs 1, 2 and 10 regarding the purification and sale of gold ornaments. Reading of the impugned order reveals that after analysing the evidence of all these witnesses, the trial Court found the following incriminating circumstances to have been conclusively established. “(21) Thus to sum up, the entire evidence led by the prosecution the following incriminating circumstances have been conclusively established; (i) On 09.09.93 at about 1 P.M. the deceased Rekhamani Panda left the house of P.W. 7 and at that time she was wearing gold ornaments and holding some cash; (ii) On that day i.e. Wednesday at about 3 P.M. P.Ws 8 and 9 saw an old woman wearing a white saree in the company of the accused and was sitting on the front verandah of his house. They later identified the photograph of Rekhamani to be that of the old lady, seen with the accused; (iii) On the following Friday accused with the help of rickshaw puller P.W. 12 carried the gunny bag to the canal and threw the same in it: (iv) On 13th, Sunday, the dead body was found floating in the canal at Minaguda, the same was brought out of the water and identified to be that of mother of P.W.7. At that time of recovery of the dead body the gold ornaments and cash were not found in her person; (v) While in police custody the accused led to the discovery of (a) purified gold piece M.O.1, (b) Ornaments M.O.II to IV and some cash (c) he also led to the discovery of the 'jori' bag containing belongings of the deceased; (vi) Personal belongings of the deceased and her ornaments were duly identified by P.W.7, 17 and 18 in the Court to e belonging to the deceased and the same were also identified before the Magistrate in T.I. parade; (VII) The conduct of the accused in leading the police to the workshop and goldsmith shop where the gold ornaments were purified and later on sold (viii) The homicide nature of death of the deceased; (ix) Motive of robbing the deceased of er valuables; (x) Recovery of some blood stains from the house of the accused; (xi) False plea of the accused persons.” 14. It has been argued before us that PW-7 not being present at home, is not competent to speak about the ornaments worn by the deceased at the time of departure from the house. Reading of the evidence of PW-7 shows that he had vividly described the wearing apparel and the ornaments worn by her mother (deceased). The relevant part of his testimony is reproduced below: “On 9.9.98 my mother was with me but at about 1 P.M. she started for Bariniput to visit my elder brother Siva Prasad. At the time of her departure from my house that day my mother was wearing a white colour saree. She was holding some spare clothes in a Jari bag. She was also wearing a gold Jigininanu of 4 Tolas, a Sonkho designed gold necklace of approximately 3 Tolas and a pair of ear tops with red and white small stones attached to them of one tola weight approximately. On both hands she was wearing four gold Rulis (bangles) of 4 Tolas approximately. At that time she had cash of about 3 to 4 thousand rupees which amount she received as pension and sale proceeds of paddy. At that time she told me that she will proceed to Barniput in a rickshaw. Thereafter I left for Court” 15. As can be seen, PW-7 has not only specified each of the ornaments but also the weights thereof. In cross-examination however, he admitted that he was not present at home when his mother left for Bariniput and that on that day he left for the Court at about 11 a.m. 16. PW-17, being the daughter-in-law of the deceased, was present at home at that time. She admitted that her husband was not at home when her mother-in-law left home at about 1 p.m. She further stated about the wearing apparels and gold ornaments worn by her mother- in-law but did not specify the weights of each. PW-18 is another daughter-in-law of the deceased and wife of PW-7, who claims to be present at home when her mother-in-law departed. She also described the wearing apparel and gold ornaments worn by her at that time without specifying the weights of each. Since PW-7 admittedly was not present at home, his evidence cannot be of any importance. Further, though PW-7 stated that the deceased also carried cash of 3 to 4 thousand rupees which she had received as pension and sale proceeds of paddy, PW-17 and 18 did not whisper a word about it. A reasonable doubt therefore, arises in this regard. The deceased was aged about 70 years and was a widow. Though nothing is on record to suggest her state of health yet considering her advanced age, it strikes as somewhat odd that such a lady would leave house alone even in day time wearing valuable ornaments and carrying cash with her. 17. Be that as it may, accepting for a moment that the deceased had indeed left home to visit her elder son at Bariniput by stating that she would hire a rickshaw, there is no reason why she would not or did not hire a rickshaw. According to the prosecution, she was seen sitting on the veranda of the accused sometime later in the afternoon as deposed by PWs-8 and 9, which according to the trial Court satisfies the last seen theory. We have gone though the evidence of PWs-8 and 9 carefully. According to PW-8, she saw an old lady of approximately 55 years of age sitting in the front veranda of the house of the accused wearing a white saree and had some gold bangles in her hands. She was also bespectacled. On being asked by her, accused Surendra said that she is the mother of one of his friends. In cross-examination, she stated that she saw the old lady at about 2 p.m. and that she and accused were inside the house. By the time she left, the old lady had not left the house. She further admitted to have seen the old lady for about a minute. She identified the photograph of the lady as being that of the deceased. Almost similar is the version of PW-9, who is none other than the daughter of PW-8. She stated that at about 3 p.m., her mother (PW-8) went to Damanjodi and at that time an old lady was sitting on the front veranda of the accused. In cross-examination, she stated that she saw the old lady at about 11 to 11.30 a.m. Though she stated in her testimony that the old lady was wearing a white saree and white blouse in cross- examination, she could not say what the old lady was wearing at that time. If we compare the evidence of PWs-8 and 9, we find that there is discrepancy as regards time when both of them claim to have seen the old lady. Viewed objectively, the evidence of PWs- 8 and 9 does not inspire confidence at all. Even otherwise, there is no reason why the deceased, who intended to go to Bariniput by rickshaw, would go to the house of the accused. Prosecution has projected a theory, though not adequtately proved, that the accused offered to arrange her to go by bus instead of rickshaw as it would be cheaper and therefore, brought her to his house. If such was the case, why would the accused bring her to his house instead of taking her to the bus stand. Secondly, there being nothing on record to show any prior acquaintance or relationship between the accused and the deceased, it is difficult to believe that an old lady would accompany a stranger to his house. Identification of the photographs of the deceased cannot be treated as an incriminating circumstance for the reason that according to PW-8, the age of the lady that she had supposedly seen was approximately 55 years, where as the prosecution claims the age of the deceased to be 70 years. Another important aspect is that PWs-8 and 9 claim to have seen the deceased on 09.09.1998 but her dead body was fished out from the canal on 13.09.1998 i.e., after four days. What transpired in between is not known. It is trite law that for the last seen theory to be acceptable, the gap between the time when the deceased was last seen and the time when she is found dead must be small. We are therefore, unable to place much reliance on the evidence of PWs. 8 and 9 nor are persuaded to treat their evidence as supporting the last seen theory projected by the prosecution. 18. The third circumstance noted by the trial Court is evidence of the rickshaw puller, PW-12. We find that he turned hostile but being cross-examined by the prosecution, he admitted to have stated before the Police as well as the Magistrate implicating the accused. In so far as his admission regarding 161 statement is concerned, the same has no evidentiary value. In so far his admission regarding 164 statement is concerned, we find that the Magistrate recording statement was not examined. The statement is marked Ext-14 and recorded by JMSC, Jeypore. There is no endorsement nor any other evidence placed on record to show that the statement was recorded after the witness was granted sufficient time for reflection. Since the prosecution intended to rely upon the statement it was incumbent upon it to examine the Magistrate so that it could have been ascertained as to whether sufficient time was given to the witness for reflection before making his statement or if he was under any kind of pressure or duress etc. In the absence of such evidence, the statement looses its evidentiary value and cannot be relied upon. 19. The next incriminating circumstance noted by the trial Court is that the dead body was found floating in the canal at Minaguda, identified to be that of the deceased and that gold ornaments and cash were not found on her person. In so far as cash is concerned, we have already held that there is no evidence to show that she was carrying cash. Without other supporting evidence, the discovery of the dead body in the canal by itself cannot be treated as an incriminating circumstance. As regards the gold ornaments, the trial Court has relied upon the evidence relating to discovery of purified gold piece marked MO-I, gold locket and 2 gold ear tops marked MO -II to IV. These ornaments were also identified by PWs-7, 17 and 18 in the Court during trial and also before the Magistrate in the TI Parade. The accused led the Police to the workshop and goldsmith shop where the ornaments were purified and later sold. It is the prosecution case that the ornaments were seized from the accused and the purified gold from co-accused K. Maleswar Achary on 18.09.1998. However, as vehemently argued by learned counsel appearing for the accused persons, no reliance ought to be placed on such evidence in view of the admission of the I.O. that the said articles were with him and not in safe custody. In this connection, we would refer to the relevant portion of paragraph-20 of the cross-examination of the I.O. (PW-19) which is reproduced below: “After seizure of the gold locket and ear tops I did not put them in sealed covers. The said locket and ear tops were with me till 15.12.98 on which date I handed over the same to the I.I.C. xx xx xx xx” 20. So, it is evident that from the date of seizure, i.e., 18.09.1998, till 15.12.1998 the articles were with the I.O. himself and not in proper custody, such as, Police Malkhana. This is a very significant omission that shakes the very foundation of the case. So, even if it is accepted for a moment that the I.O. had indeed made some seizures, unless it is further shown that the seized articles were kept in proper custody, such evidence looses its importance and so also the evidence relating to conduct of TI Parade. Page 22 of 25 Significantly, while the Magistrate (PW-6) stated that only he and his staff were present inside his chamber at the time of TI parade and no Police Officer was present, yet PW-7 admitted in cross-examination that at the time of TI parade, the IIC was also present. While we do not wish to comment on the procedure adopted by the Magistrate or doubt his fairness and knowledge of the procedure to be followed yet, having regard to the evidence that ornaments in question were not kept in proper custody for nearly four months prior to the TI parade, it raises a reasonable doubt. 21. The nature of death of the deceased being homicidal in nature, has to be supported by other incriminating evidence to show the guilt of the accused but by itself it has no value. 22. As regards the motive of the accused for committing the crime i.e., robbery, the whole case as projected by the prosecution appears doubtful as already discussed. For a person with such a motive it is surprising that he would bring his victim to his house and make her sit on the veranda for quite some time and thereafter kill her inside the house and rob the valuables. 23. As regards recovery of some blood stains from the house of the accused, which was found to be human blood, in the absence of any evidence of any bodily injury being caused, the same is of no consequence. We may profitably refer to the evidence of autopsy surgeon, PW-15, that three injuries were found, one on the leg and two on the elbow joints but the doctor could not opine whether they were antemortem or postmortem in nature. Death in all probability was due to asphyxia as a result of strangulation. In view of such inconclusive evidence, mere recovery of blood stains cannot be treated as an incriminating circumstance. 24. The trial Court has listed false plea of the accused persons as being an incriminating circumstance against them. We do not agree. We say so because there is nothing in the evidence to show that co-accused K. Balaji Achary had purchased the gold from accused Surendra knowing it to be stolen property. So also, co-accused K. Maleswar Achary also melted the gold knowing it to be stolen property. The trial Court has relied upon the so- called admission of co-accused, Maleswar Achary in his 313 Cr.P.C. statement in this regard. In the absence of any positive evidence, a mere statement made during 313 Cr.P.C. examination can hardly be treated as admissible evidence to be used against the accused persons. 25. Thus, we find that none of the circumstances listed by the trial Court can be treated as incriminating in the least considered individually or jointly. The fundamental tenet of the criminal jurisprudence enjoins upon the Court to accept evidence that is beyond reasonable doubt. We are conscious that any fanciful doubt or speculation, imagination etc. cannot be treated as reasonable doubt but then, if the doubt as such is capable of shaking the foundation of the case, the same cannot be used to hold the accused guilty. 26. Coming to the facts of the present case, we find that there are some materials which are capable of arousing a suspicion that the accused may have killed the deceased but, unless the ‘may’ becomes a ‘must’, it would not be safe to hold him guilty conclusively. While ‘may’ connotes a mere possibility, ‘must’ confers a definiteness to such possibility, in the absence of which, no person can be held guilty. The prosecution must be held to have failed to traverse the distance between ‘may’ and ‘must’ in the present case. As such, the impugned order of conviction cannot be sustained. 27. For the forgoing reasons therefore, the appeals are allowed. The impugned judgment of conviction and sentence is hereby set aside. The accused persons being on bail, their bail bonds be discharged. .......................................... (Sashikanta Mishra, J) Manash Ranjan Pathak, J. I agree. …........................................ (Manash Ranjan Pathak, J) Orissa High Court, Cuttack The 19th March, 2026/A.K. Rana, P.A. Designation: P.A.