IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No. 111 of 2005 (An application under Section 374(2) of the Code of Criminal Procedure from the judgment and order dated 07.01.2005 passed by learned Addl. Sessions Judge, Rairangpur in S.T. Case No. 272 of 2003) AFR Raghunath Naik …. Appellant -Versus- State of Orissa ….. Respondent Advocate(s) appeared in this case through hybrid mode: For Appellant : Mr. J. Katikia, Amicus Curiae For Respondent : Ms. Suvalaxmi Devi, ASC __________________________________________________________ CORAM: THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA Date of Hearing :07.04.2026 :: Date of Judgment:23.06.2026 SASHIKANTA MISHRA, J. The appellant, Raghunath Naik, faced trial in S.T. Case No. 272 of 2003 in the Court of the learned Additional Sessions Judge, Rairangpur for committing the murder of his wife, Kamala Naik. By judgment dated 07.01.2005, he was convicted under Section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo RI for a period of one month. Said judgment is impugned. 2. Prosecution case, briefly stated, is as follows. On 27.08.2003, the informant, a Grama Rakhi, lodged a written report at Gorumahisani Police Station stating that on the same day, while returning from Hatabadada weekly market, he received information that a man and a woman were staying in the house of one Sobha Gadasera at Gorumahisani camp area and on that day at about 11:30 a.m., they had a quarrel, during which, the man assaulted the woman by giving kick blows on her abdomen, dragged her inside the house by holding her hair and thereafter pressed her neck, resulting in her death. On such report, P.S case no. 27 of 2003 was registered under Section 302 IPC followed by investigation. During the course of investigation, it was found that the accused and the deceased Kamala Naik had been staying together in the house of Sobha Gadasera for few days prior to the occurrence. On the date of the incident, in course of quarrel, the appellant assaulted the deceased and caused her death. Upon completion of investigation, charge-sheet was submitted against the accused. 3. The plea of the accused person was of complete denial. The accused person additionally took the plea that he was not staying with the deceased in the house of Sobha Gadasera. 4. To prove its case, prosecution examined six witnesses and exhibited seven documents. That apart, prosecution also proved three material objects. Defence, on the other hand, did not adduce any evidence. 5. After, analysing the evidence on record, the trial Court was of the view that the death of the deceased was homicidal in nature and that the prosecution could establish that the accused was the author of the crime. The trial Court placed reliance on the evidence of P.W.2 as an eye-witness to the assault and the testimony of P.W.3 regarding the stay of the accused and the deceased in her house. The medical evidence adduced by P.W.4 was found to corroborate the prosecution case with regard to assault and strangulation. It also held that though no witness had seen the actual act of strangulation inside the room, the circumstances proved by the prosecution formed a complete chain for which the appellant was convicted under Section 302 of IPC and sentenced to imprisonment for life. 6. Heard Mr. J. Katikia, learned Amicus Curiae appointed by Court for the appellant and Ms. Suvalaxmi Devi, learned ASC for the State. 7. Mr. Katikia assails the impugned judgment of conviction on the following grounds. i) The F.I.R. was lodged against an unknown person despite considerable delay and even in the inquest report the name of the appellant does not find place. Page 5 of 12 ii) Conviction rests mainly on the testimony of P.W.2, who is not a wholly reliable witness as she did not witness the entire occurrence. iii) P.W.2’s evidence suffers from material omissions and improvements and lacks independent corroboration. iv) P.W.3, in whose house the occurrence allegedly took place, is not an eye-witness and her evidence is purely hearsay being based on information received from one Sudarsan Bindhani, who was not examined. v) Non-examination of material witnesses, namely Sudarsan Bindhani, Constable Budhuram Mohakud and Laxmi Kumbhar weakens the prosecution case. vi) No witness has seen the actual act of strangulation and the case rests on circumstantial evidence. Page 6 of 12 vii) Foundational facts necessary to invoke Section 106 of the Evidence Act have not been established viii) Medical evidence does not conclusively connect the appellant with the act of strangulation. ix) The examination of the appellant under Section 313 Cr.P.C. was defective. 8. Per contra, Ms. S. Devi would argue that the evidence of P.W.2 clearly establishes that she had witnessed the accused assaulting the deceased and of dragging her inside the house and soon thereafter the deceased was found dead, which forms a strong incriminating circumstance against the accused. She further submits that the testimony of P.W.3 proves that both the accused and the deceased were residing in her house prior to the incident. She also submits that the medical evidence indicating rupture of spleen corroborates the ocular version, inasmuch as the spleen is situated in the abdominal region beneath the rib cage, which is consistent with the assault on the abdomen as deposed by P.W.2. The medical evidence also fully supports the prosecution case by establishing that the death was homicidal in nature and caused by assault coupled with strangulation. Drawing attention to Question No.2 put to the accused in his examination under Section 313 Cr.P.C, she submits that the incriminating circumstance arising from the evidence of P.W.2 was specifically put to him, which he denied and even if there is any defect in the examination, no prejudice was caused to the accused so as to vitiate the trial. 9. As already stated, prosecution relied heavily upon the evidence of sole eyewitness of P.W.2 as allegedly corroborated by the house owner, P.W.3. Much has been argued by both sides regarding acceptability of the evidence of the sole eye-witness as the basis for conviction. It is trite law that evidence of a solitary eye-witness can form the basis of conviction but then such evidence must be entirely reliable and trustworthy. In other words, if the evidence of the sole eye-witness is found to be reliable and credible, the Court can always accept the same. However, unless the witness is wholly reliable, prudence requires that the Court shall insist upon corroboration before accepting his testimony. We may now examine the evidence of P.W.2 in the above backdrop. 10. P.W.2 claims to be a resident of Gorumahisani camp area near the house of Sobha Gadasera (P.W.3), where the occurrence took place. She claims to have seen the accused assaulting his wife near the house of Sobha Gadasera and of accused dragging her away by holding her hair inside the house. She further stated that the dead body was found out from inside the house and stool had come out from her anus. Firstly, there is nothing on record to show that the deceased was the wife of the accused though there is some evidence to show that both were staying together. In this regard also, the evidence appears to be vague inasmuch as according to P.W.3, who incidentally did not refer to the deceased as being the wife of the accused, on the night prior to the incident both of them had stayed in her house and prior to it they were residing near her house under a Aswatha tree. Now, what is the relationship between the accused and the deceased on one hand and P.W.3 on the other is not stated. It is also not stated as to in what capacity both had stayed in the house of P.W.3. In any case, her statement as above contradicts her earlier statement before the I.O., where she stated that both were staying in her house for seven days prior to the incident. 11. Coming back to the evidence of P.W.2, she claims that the accused assaulted the deceased near the house of P.W.3. This is again a vague statement without any specification regarding the exact place where such assault took place, if at all. She stated that the dead body was found inside the house and that stool had come out from the anus of the deceased. This statement of hers does not inspire confidence at all because she admitted in cross- examination that after the accused took the lady inside the room she left the spot and went to the market for her sweeping work. So, what transpired inside the room was obviously not seen by her. Moreover, it is not the case of the prosecution that P.W.2 had come inside the room later and had seen the dead body lying there. So her statement that the stool had come out from the anus is clearly an exaggeration. 12. Moving further, it is seen that according to P.W.2 some people went to call Sobha and then she came to her house and after her arrival the accused told her that he is going to Kalimati and fled away. This contradicts her own statement in cross-examination that after the accused had taken the deceased inside the room she had left the spot and went to the market for her sweeping work. Obviously, what transpired thereafter could not have been within her knowledge. In fact, the above statement contradicts the testimony of P.W.3, who stated that by the time of her arrival, the accused had fled away. So viewed as a whole, the evidence of P.W.2 fails to inspire confidence so as to be accepted as reliable. 13. If we take note of the evidence of P.W.2, the case of prosecution falls to the ground. It is true that the deceased was found with four injuries including fracture of thyroid cartilage, hyoid bone and rupture of the spleen, all of which were ante-mortem in nature. Yet, in the absence of any evidence to even remotely suggest that the accused had caused the said injuries, it would not be safe to rely only upon the vague statements of P.W.2 that she had seen the accused assaulting the deceased and of dragging her inside the house by holding her hair. Prosecution has projected the ‘last seen’ theory but it is trite that the last seen theory by itself is a weak piece of evidence and unless corroborated by other credible evidence it has very little value. In the instant case, the last seen theory is based on the version of P.W.2 on whose evidence we, for the reasons indicated, are unable to place any reliance. Even accepting for a moment the evidence of P.W.2, the same at best raises a suspicion only and according to us, quite a feeble one. It is well-settled that suspicion, howsoever strong cannot be a substitute to proof. 14. Thus, on an independent analysis of the evidence on record in the background of the contentions raised by both parties, we find that there are several unexplained gaps in the prosecution case. The evidence of the sole eye- witness P.W.2, does not transpire evidence at all. P.W.3 is not an eye-witness. Nonetheless, her evidence relating to residence of the accused and the deceased in her house prior to the incident appears to be shrouded in doubts. All these circumstances raises reasonable doubt, the benefit of which, needless to mention has to go in favour of the accused. We, therefore, hold that the conviction of the accused cannot be sustained merely on the basis of suspicion as discussed above. 15. In the result, the appeal is allowed. The impugned judgment of conviction dated 07.01.2005 passed by learned Addl. Sessions Judge, Rairangpur in S.T. Case No. 272 of 2003 is hereby set aside. The accused person being on bail, his bail bonds be discharged. .......................................... (Sashikanta Mishra, J) Manash Ranjan Pathak, J. I agree. …........................................ (Manash Ranjan Pathak, J) Orissa High Court, Cuttack The 23rd June, 2026/Deepak