CRLA No. 306 of 2004 Page 1 of 14 IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.306 of 2004 (From the judgment and order dated 30.07.2003 passed by learned Addl. Sessions Judge, Nabarangpur in S.C Case No. 20 of 2001) Mohan Kumar Senapati … Appellant -versus- State of Odisha … Respondent Advocates appeared in the case through hybrid mode: For Appellant : Mr. Samvit Mohanty, Advocate (Amicus Curiae) -versus- For Respondent : Mr. P.S.Nayak, A.G.A. --------------------------------------------------------------------------- CORAM: THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA Date of hearing-25.06.2026 Date of Judgment- 07.07.2026 Sashikanta Mishra,J. The appellant faced trial in SC Case No. 20 of 2001 of the Court of Additional Sessions Judge, Nabarangpur for committing the offence under Section 302. Being found guilty and sentenced to undergo imprisonment for life vide judgment passed on 30.07.2003, he has filed the present appeal. 2. Prosecution case, briefly stated, is as follows: On 30.10.1999, the informant, M. Lachhumu (Laxmi) Naidu was informed by a co-villager, G. Bhanu Murty that a motorcycle rider was lying on the village road near Dhepaguda with bleeding injuries. G. Bhanu Murty further informed him that the matter was reported to him by one Bali Santra. Hearing this, both of them went to the spot and found that the motorcyclist was lying on the road and the motorcycle was lying at a distance of about 15 feet from him. Someone had attacked him by means of sharp cutting weapons. Two young persons were present at a distance of 100 meters, one of whom was fair and tall while the other was of short height and dark complexioned. They went away seeing the informant. When the informant asked the motorcyclist as to who had assaulted him, he could not say anything but gestured that two persons had CRLA No. 306 of 2004 done so. When he was asked as to if he could identify his assailant, he gestured affirmatively. The informant and his friend gave him a paper and pen but he could not write the names of his assailants and rather gestured through sign that there were two persons. The informant went to the police station and on his return to the spot he found that the son of one M. Surya Narayan of Nabarangpur had managed to obtain in writing from the injured the names of his assailants. Many other persons were present at the spot. The injured was identified as the son of P. Ananda Rao of Nabarangpur by the persons present. The Hero Honda Motor Cycle bearing registration no. OR-10A-6129 had its dickey open, while the key was still affixed. It was therefore, suspected that the culprits had assaulted the injured with a view to rob him. The above fact was reported in writing by M. Laxmi Naidu before the OIC of Tentulikhunti Police Station. It was treated as FIR and P.S. Case No. 71 of 1999 under Section 397 of IPC was registered. The injured was thereafter shifted to Nabarangpur hospital where he succumbed to his injuries. In course of investigation, the complicity of the present appellant and another person was ascertained. While the present appellant was apprehended, the other person remained at large. As such, charge-sheet was submitted against the appellant under Section 302/397 of IPC. 3. The accused took the plea of denial. 4. To prove its case, prosecution examined 11 witnesses and exhibited 13 documents. Besides, prosecution proved 5 material objects. Defence did not adduce any evidence, either oral or documentary. 5. After analyzing the evidence on record, the trial Court, noticing that there was absence of direct evidence found that there were four circumstances which proved the guilt of the accused beyond reasonable doubt. The first circumstance was that the accused was locally known as ‘B.B.Driver’. Secondly, the deceased while struggling for life CRLA No. 306 of 2004 had written ‘B.B.Driver’ in a piece of paper produced by one of the witnesses (P.W.8), which was akin to dying declaration. Thirdly, the fingerprint (palm print) of the accused was found on the dickey of the motorcycle. Finally, it was established that just after the occurrence the accused was seen near the spot. The trial Court however, did not find any evidence relating to the offence under Section 397 of IPC. On such findings, the accused was convicted under Section 302 of IPC and sentenced as already stated hereinbefore. 6. Heard Mr. S. Mohanty, learned counsel for the accused-appellant and Mr. P.S. Nayak, learned AGA for the State. 7. Mr. Mohanty assails the impugned judgment on the following grounds: (i) Prosecution never proved that the so-called dying declaration (Exhibit 6) was actually written by the deceased. Page 6 of 14 (ii) Even otherwise, the document does not conclusively implicate the accused. (iii) The document cannot be treated as dying declaration as it was never proved to have been written by the deceased in a fit state of mind. (iv) Exhibit-6 was introduced in evidence by P.W.8, who was not competent to prove the contents of the seizure list. (v) The evidence relating to the fingerprint of the accused is unacceptable in the absence of proof of its proper collection, preservation and sealing and for non- examination of the fingerprint expert. (vi) The witnesses identified the accused for the first time in the Court and no T.I. parade was held. 8. Per contra, Mr. P.S. Nayak would submit that it was clearly proved that the accused was locally called ‘B.B.Driver’, as he was driving a vehicle which was locally called the ‘B.B.Van’. The deceased wrote the name of the accused on the piece of paper produced by P.W.8 while he was still alive and according to the doctor it was possible CRLA No. 306 of 2004 for him to do so. The piece of paper cannot be disbelieved as the deceased is not expected to falsely state the identity of his assailant when faced with imminent death. The accused did not offer any explanation as to how his fingerprints were found on the dickey of the motorcycle of the deceased. Several witnesses have testified to have seen the accused near the spot immediately or shortly after the occurrence. 9. We have heard learned counsel for the parties at length and given our anxious consideration to the contentions raised by them. We deem it proper to analyse the evidence on record independently keeping the rival contentions in perspective. 10. The FIR was lodged by M. Lachhumu Naidu, who was examined as P.W.1, though his name is mentioned as M. Laxmi Naidu in the Form of Deposition. As stated by him in the FIR, he deposed that G. Bhanu Murty came to his house and informed him that a person had been murdered and his dead body was lying on the road near Dhepaguda. Hearing this, he immediately proceeded to the spot and at that time he was the Sarpanch of the area. In the FIR, it is stated that on being asked by the informant, G. Bhanu Murty informed that one Bali Santra had reported to him about the incident. Said Bali Santra was not examined as a witness in the case. Be that as it may, we find that the other part of the FIR appears to have been corroborated by the testimony of P.W.1. He had seen two persons, one of whom is the accused. In cross-examination, he described the wearing apparels of the two persons and stated that on seeing them, they went away. This strikes us as somewhat improbable, for the persons who had committed such a gruesome act would be present at the spot after committing the crime. Rather, their first instinct would be to flee. The statement of P.W.1 in cross-examination that on seeing other persons approaching, the said two persons went away does not inspire much confidence in the absence of any evidence to show as to if they were suspected by the CRLA No. 306 of 2004 persons present at the spot of having committed the offence or whether there was any attempt to apprehend them. According to us, this militates against normal human conduct and therefore, it casts doubt over the testimony of P.W.1 to such extent. It is further stated by P.W.1 that when Surya Narayan’s son came to the spot and asked the injured to give him the names of the assailants he did so by writing on a paper. He categorically stated that G. Bhanu Murty Naidu, Purushottam Dora and G. Ramesh Nayak were present at the spot at that time. For the reasons best known to the prosecution, none of the aforementioned three persons were examined in the case. 11. Turning to the evidence of P.W.8, he stated that he was present near a betel shop in village Tentulikhunti when he got information that a man of Nabrangpur had been killed and the dead body was lying on the Dhepaguda road. He immediately proceeded to the spot and found the deceased lying with bleeding injury and struggling for life. The deceased was trying to say something but could not do so, for which P.W.8 assisted him. He torn out a piece of paper from the Xerox copy of the R.C.Book and gave it to him. With much difficulty, the deceased could be able to write ‘B.B.Driver’ and something else and gave it to P.W.8, who kept the same with him. He then left the spot for Tentulikhanti in search of a vehicle to carry the injured to the hospital and by the time he came there with a jeep, the injured had already been shifted to the hospital by police. The police seized the paper from him on the next date. He further stated that the accused was the driver of B.B.Van belonging to advocate B.B.Pattnaik and was called ‘B.B.Driver’. On the date of occurrence, prior to the incident, he had seen the accused near Integral School on Khatiguda between 1.30 to 2.00 P.M. In such factual scenario, he suspected the accused of having a hand in the commission of the crime. 12. On an objective reading of the evidence of P.W.8, it appears to be patently unworthy of belief. Firstly, because of absence of corroboration regarding writing of CRLA No. 306 of 2004 the name of the assailant by the deceased on a piece of paper produced by P.W.8. Secondly, there is no reason why he did not hand over the paper to the police till the next day. Thirdly, prosecution has not proved that he left the spot and returned with a jeep. Further, P.W.8 says that the piece of paper was torn out from the R.C.Book. Though not improbable yet, he did not state the reason for carrying the R.C.Book in his chest pocket at the relevant time. In any event, prosecution never proved with certainty that the document marked Exhibit-6 was actually torn from the R.C.Book of P.W.8. Most importantly, it was never proved that the hand writing found in Exhibit-6 was that of the deceased by comparing his admitted writing with it. So, apart from the testimony of P.W.8, there is nothing to conclusively establish that Exhibit-6 was written by the deceased. Only because the deceased was locally known as ‘B.B.Driver’ and the document marked Exhibit 6 mentioned ‘B.B.Driver’, it by itself does not prove the guilt of the accused. Page 12 of 14 13. Another important aspect is that the deceased was lying with grievous injury and gasping for breath. The Doctor, P.W.4 clarified that whether such a person would be capable of writing or not depends on the level of his consciousness. If we take note of the FIR, it is clearly stated therein that when P.W.1 and others handed him a pen and paper, he could not write the name of the assailant. The question is, how could he subsequently do so when in all human probability, his condition must have deteriorated. This creates a reasonable doubt. It is well settled that dying declaration can be accepted if it is proved that the same was voluntary and truthful and most importantly, the victim was in a fit state of mind. We are conscious that FIR is not substantive evidence. So, if the above statement in the FIR is ignored it would amount to an improvement as P.W.1 did not say so while deposing in the Court. We are persuaded to view the paper with suspicion as according to P.W.8 himself, the deceased was not fully conscious but only subconscious. CRLA No. 306 of 2004 14. As regards the presence of fingerprints of the accused on the dickey of the motorcycle, we are not inclined to place much importance on the evidence laid in this regard. Because prosecution never proved who lifted the fingerprints and by whom was it examined. The fingerprint expert was also not examined. 15. As regards the presence of the accused at the spot after the occurrence, we have already found the same improbable. As to the evidence of P.W.2 that he had seen the accused and another person and suspected them as they were outsiders does not carry much importance. This is for the reason that P.W.2 identified the accused for the first time in the Court, which as per settled position of law is a weak piece of evidence. 16. Prosecution projected robbery as the motive of the crime but then the trial Court itself found no evidence in this regard for which the accused was acquitted. 17. Thus, from an analysis of the evidence on record in light of the contentions raised before us by the parties, we are unable to concur with the findings rendered by the trial Court in the case. The impugned order of conviction, according to us, is unsustainable in law. 18. In the result, the appeal is allowed. The impugned judgment of conviction and sentence dated 30.7.2003 passed by Addl. Sessions Judge, Nabarangpur in Session Case No. 20/2001 is hereby set aside. The appellant be set at liberty forthwith, if his detention is not required in connection with any other case. His bail bonds be discharged. .......................................... Sashikanta Mishra, J. Manash Ranjan Pathak, J. I agree. …........................................ (Manash Ranjan Pathak,J.) High Court of Orissa, Cuttack. Deepak