CRLA No. 298 of 2003 Page 1 of 10 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.298 of 2003 (From the judgment and order dated 16.09.2003 passed by learned 1st Addl. Sessions Judge, Berhampur in Session Case Nos.31 of 2002 and 267 of 2002) Hadi Das … Appellant -versus- State of Odisha … Respondent Advocates appeared in the case through hybrid mode: For Appellant : Ms. Avinanda Mohanty, Advocate -versus- For Respondent : Mr. Debaraj Mohanty, A.G.A. --------------------------------------------------------------------------- CORAM: THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA JUDGMENT 19.02.2026 Sashikanta Mishra,J. The appellant before us faced trial along with three others in Sessions Case No. 31/2002/267/2002 in the Court of learned Additional Sessions Judge, Berhampur for committing the murder of one K.Kankeya CRLA. No.298 of 2003 Page 2 of 10 Reddy. By judgment passed on 16.09.2003, he was convicted of the said offence and sentenced to undergo imprisonment for life. 2. Prosecution case, briefly stated, is as follows: On 13.09.2001 at about 8.00 P.M., when the informant K.Sabitri Amma of Dura Bada Sahi in the district of Ganjam had gone to the market to bring ‘Nasa’ (sniffing tobacco) she saw her younger son K.Kankaya Reddy being assaulted by the people of Bauri Sahi, namely, Braja Das, Hadi Das (present appellant), Bangali Das, Kailash Das and others. She saw them hacking her son and of taking him away towards their Sahi. Seeing this, the informant shouted but to no avail. She rushed to the house of the Sarpanch but he was not present at home. On the next morning, she went to Bauri Sahi and asked about her son to Hadi Das and others but they did not say anything. She then went in search of her son towards Kumarbandha Padia and found him lying dead. She returned home and informed her elder son Rajarao Reddy. According to the CRLA No. 298 of 2003 informant, the assailants had killed her son due to previous grudge. She therefore, went with her elder son and a member of her community, K.Krishna Reddy to Gopalpur Police Station and orally reported the matter. Her complaint was reduced to writing and Gopalpur P.S. Case No. 97 of 2001 was registered, followed by investigation. Upon completion of investigation, chargesheet was submitted against all the accused persons under Sections 302/34 of I.P.C. 3. The defence took the plea of denial and false implication. 4. To prove its case, prosecution examined 6 witnesses and exhibited 11 documents. It also proved 10 material objects. On the other hand, the defense examined one witness. 5. The trial Court found that all the witnesses cited by the prosecution had turned hostile but then relying on the statements of accused Hadi Das leading to discovery of the CRLA. No.298 of 2003 Page 4 of 10 weapons of offence and the evidence of human blood of ‘A’ group found thereon, it held that the weapons were used by Hadi Das and he had concealed the same. It was further held that the accused Hadi Das could not explain under what circumstances he assaulted the deceased causing so many injuries. As such, while finding no incriminating evidence against the other accused persons, the trial Court acquitted them but returned a finding of guilt against Hadi Das and convicted him for the offence as already stated. 6. Heard Ms. A. Mohanty, learned counsel for the appellant and Mr. D. Mohanty, learned AGA for the State. 7. Before delving into the grounds of challenge to the impugned judgment, we deem it proper to examine the record ourselves to be subjectively satisfied as regards the correctness of findings of the trial Court. We have found that none of the so-called witnesses including the informant, who is none other than mother of the deceased, supported the prosecution case even remotely. Though their statements supposedly made before the I.O. during CRLA No. 298 of 2003 investigation were confronted to them as well as the I.O., yet there being no admissible evidence on record, the same are of no value. As regards the claim that the deceased sustained as many as 26 injuries most of which were caused by sharp cutting weapons likely to cause death, the I.O. seized three swords (M.Os. VIII, IX and X). The disclosure statement of the accused, on which the trial Court placed much emphasis was proved as Exhibit 1/1. He supposedly confessed of killing the deceased and of concealing three swords under a bush on the western ridge of Kumar Bandha. He also gave recovery of the said weapons. No independent witness was cited to support such statement and of recovery of the concealed weapons. The blood found on the three weapons was of ‘A’ group which matched the blood at the spot and on the wearing apparels of the deceased. The trial Court was of the view that the above proved that the said weapons were used for commission of the offence. Since the accused could not explain under what circumstances he assaulted the deceased causing so many injuries, the trial Court held CRLA. No.298 of 2003 Page 6 of 10 him guilty. Having found the above, we refrain from stating our opinion as regards the finding of guilt at this stage and instead prefer to consider the specific grounds raised by the appellant. 8. According to Ms. Mohanty, the trial Court committed manifest error in convicting the appellant despite complete absence of evidence against him. All the prosecution witnesses who were supposedly eyewitnesses namely, P.W.1 to P.W. 5 did not support the prosecution. The witness to disclosure statement also turned hostile. The other witness to disclosure namely, S. Madheya was not examined. Under such circumstances, the trial Court could not have held the accused guilty relying only upon the so- called disclosure statement and the matching of blood group. 9. Per contra, Mr. Debraj Mohanty, learned AGA would submit that even though the eye witnesses turned hostile, their earlier statements before the I.O. were duly confronted to them and also to the I.O., who admitted that CRLA No. 298 of 2003 they had all stated about the occurrence before him. Mr. Mohanty further submits that the fact that 3 swords were recovered from their place of concealment at the instance of the accused shows he had committed the crime. 10. We find considerable force in the submission of Ms. Mohanty, learned counsel for the appellant that there is no direct evidence of the accused having committed the murderous assault on the deceased. The informant, who is the mother of the deceased did not support the prosecution. None of the other witnesses also supported the prosecution case. Though much reliance was placed by the trial Court on the so-called disclosure statement, yet said statement (Ext. 1/1) itself was not proved in accordance with law. Section 27 of Indian Evidence Act reads as follows: “27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” [Emphasis added] CRLA. No.298 of 2003 Page 8 of 10 11. P.W.4 was cited as a witness to the disclosure statement but he turned hostile. The other witness namely, S. Matheya was not examined. In such a situation, it cannot be said that the requirement of the statement being made ‘in the custody of a police officer’ was proved by the prosecution. 12. Even otherwise, it is trite law that only that part of the statement which leads to discovery of fact can be proved. We are surprised that the trial Court has relied upon such a statement which does not in the least satisfy the requirement of Section 27. As such, the so-called matching of blood group found on the weapons of offence with the blood found on the spot and wearing apparels of the deceased are of no consequence. Interestingly, the trial Court held that the accused does not explain under what circumstances he assaulted the deceased causing so many injuries. This raises two points- CRLA No. 298 of 2003 i) In the absence of any acceptable or admissible evidence of the assault, there is no question of the accused explaining the same; and ii) It is contrary to the fundamental tenet of criminal jurisprudence to shift the burden of proof to the accused. Needless to mention, the foundation necessary for shifting the burden from the prosecution to the defense is woefully absent in the present case. 13. The contention that the I.O. proved that the witnesses had stated about the occurrence before him in their Section 161 Cr.P.C. statements can be considered only to be rejected for the reason that even accepting so, it would still not be admissible evidence. Needless to say, what the witnesses said in the Court can only be considered and not what they may have said to the police during investigation. 14. For the foregoing reasons therefore, we are of the considered view that the conviction of the accused cannot stand the test of law and therefore, deserves to be interfered with. CRLA. No.298 of 2003 Page 10 of 10 15. In the result, the appeal succeeds and is therefore, allowed. The impugned judgment of conviction and sentence dated 16.09.2003 passed by learned Additional Sessions Judge, Berhampur in Sessions Case No. 31/2002/267/2002 are hereby set aside. The accused being on bail, his bail bonds be discharged. 16. Before parting, we would like to place on record our appreciation for the able assistance rendered by Ms. Avinanda Mohanty, learned counsel appearing for the appellant. .......................................... Sashikanta Mishra, J. Manash Ranjan Pathak, J. I agree. …........................................ (Manash Ranjan Pathak,J.) Deepak