IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 60 of 2006 (From the judgment and order dated 31.01.2006passed by learned Addl. Sessions Judge, Fast Track Court-III, Cuttack, in S.T. Case No.161/2004) Tulu @ Joseph Mohanty …. Appellant -Versus- State of Orissa ….. Respondent Advocate(s) appeared in this case through hybrid mode: For Appellant(s) : Mr. SK Zafarulla, Adv. For Respondent(s) : Ms. Suvalaxmi Devi Addl. Standing Counsel _________________________________________________________ CORAM: THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA Date of Hearing :30.06.2026 :: Date of Judgment:23.07.2026 Sashikanta Mishra, J. The appellant has preferred the present appeal against the judgment passed by the Fast track court-III, Cuttack convicting him u/s 302, 382 and 457 of the IPC for committing the murder of Arati Mohapatra. 2. The prosecution’s case briefly stated is as follows- On 30.05.2003, the informant Binod Kumar Mohapatra having received a telephonic information from contractor, Biju Babu that his sister Arati Mohapatra (deceased) was lying dead near a tube-well, rushed to her house to find the door lying open and trail of blood going towards the back of the house where the body of the deceased was lying. He informed the I.I.C.,Lalbag police station by presenting a written report of the incident. The IIC/I.O. treating said report as a FIR, took up investigation of the case formally registered as PS Case No. 102/03. During investigation the I.O. apprehended Baju @ Bedrak @ Mohit Jena and basing on his statement during examination, apprehended the accused Tulu @ Joseph Mohanty. The prosecution alleges that the accused confessed to committing the murder of the deceased while attempting a burglary in her house with two other associates in front of a witness and the police basing on which the IIC found 5 sarees and blouse on his instance and prepared the charge sheet against him u/s 302/382/457 of IPC. 3. The accused took the plea of denial. 4. The prosecution has examined 16 witnesses, proved 15 documents marked Exhibits. 1 to 15. Besides 9 material objects were proved. The defence did not adduce any evidence oral of documentary. 5. The learned trial Court upon appreciation of evidence found that the death of the deceased was homicidal in nature. Based on the evidence of the doctor PW-1 who conducted the post mortem and the scientific officer PW-5, the learned trial Court found the deceased to have died due to the injuries caused on her head and face area by means of an iron rod recovered by the I.O. from the spot of occurrence and found the accused as the author of the crime. The trial Court placed reliance on the evidence of PW-3, PW-1 and PW-5. The Court also relied on the testimony of PW-3 regarding the seizure of the M.O.s as confessed by the accused, and his confession to the murder of the deceased. The trial Court opined that the medical evidence adduced by PW-1 and the scientific evidence adduced by PW-5 who was the scientific officer, was found to corroborate the prosecution’s case of assault and murder. The circumstances proved by the prosecution formed a complete chain for which the appellant was convicted u/s 302, 382 and 457 of IPC and sentenced to imprisonment for life. 6. Heard Mr. Sk. Zafarulla, learned counsel for the appellant and Ms. Suvalaxmi Devi, learned ASC for the State. 7. Mr. Zafarulla assails the impugned judgment on the following grounds:- i.The trial Court improperly appreciated the evidence of PW-3, PW-14, PW-15 and PW-16, selectively relying upon the portions supporting the prosecution’s case while ignoring material inconsistencies. ii. The trial Court failed to appreciate the contradictions in the evidence of PW-4 and PW- 9 from the evidence of PW-13,15 and 16 with regard to Ext-3 and 9. iii.The trial misapplied the principles governing appreciation of recovery evidence and disclosure statements laid down by the Supreme Court, specifically concerning the evidence of PW-9. iv.The prosecution failed to establish that the recovered articles were stolen property belonging to the deceased through TI parade and also failed to prove the alleged motive for the offence. v.The Trial Court erred in convicting the accused u/s 382 of IPC by placing undue reliance on the alleged recovery of articles without any independent corroborative evidence connecting the appellant with the commission of the offences. vi.The Trial Court ignored material discrepancies between the medical evidence, scientific evidence and the testimony of the Investigating Officer regarding the alleged weapon of offence and entirely relied on the circumstantial evidence and failed to complete the chain of circumstances and establish guilt of the accused beyond reasonable doubt. Page 6 of 20 vii.The trial court ignoredthat the conviction under Section 457 IPC was contrary to the settled legal principles governing the offence of lurking house trespass by night. 8. Per Contra, Ms. Devi would argue thatthe evidence of PW-3 clearly establishes that the accused confessed to the murder of the deceased along with two associates and has himself directed the police to the place of discovery of the Material objects- III to VIII. 9. Before delving into the merits of the rival contentions, we deem it proper to analyse the evidence on record independently. The post mortem report concludes that the death of the deceased was homicidal in nature, however, there is no eye-witness to the incident. The conviction of the accused is based on the testimony of PW-3 and corroboration from the seized material objects and testimonies of PW- 13,15,16. The informant PW-9 reached the spot of occurrence in the morning having heard about the body of the deceased lying near the tube-well. PW-3 deposed about the police seizing 5 sarees and a blouse from the house of the accused and the accused told the police that the same belonged to the deceased. He did not witness the seizure of the murder weapon from the spot of occurrence. 10. The murder weapon, i.e. the iron rod seized by the police is listed under Exhibit-9 i.e. the seizure list to have been seized from the spot of occurrence. However, PW-3 who has signed it as the witness to the investigation denied seeing such seizure by the police. The same was not examined by the Court and the discrepancies in the report of the Doctor i.e. Exhibit-2 and Exhibit-9 where the dimensions of the weapon of offence do not match further weaken the prosecution case. Moreover, the testimony of PW-9 states that construction materials were also present in the house of the deceased which were similar to the murder weapon. Hence, evidence of the accused having brought it over to the house of the deceased for murder are not established. 11. Referring to the post mortem report it is clear that the death of the deceased happened due to the injuries received to her head and face area. However, the report of the Chemical Examiner is inconclusive and does not furnish any scientific opinion connecting the iron rod with the offence being caused by the accused. The alleged murder weapon having not shown before the trial Court, or proved to have been used by or being on person of the accused and its recovery from the spot of occurrence being in doubt, the same cannot be treated as incriminating evidence against the accused. The prosecution has not provided any further corroboratory evidence in support of the above reports. 12. An inconclusive medical report or chemical examiner's report does not, by itself, require acquittal. However, where the prosecution's case substantially depends on such scientific evidence to establish the evidence to connect the alleged weapon with the accused or to establish the nexus between the accused and the offence, an inconclusive report assumes significance and is sufficient to create a reasonable doubt, the benefit of which must go to the accused. 13. In light of the discussions made above, the alleged weapon of offence cannot be treated as a reliable incriminating circumstance against the accused to sustain a conviction under Section 302 IPC. 14. The other basis for conviction by the trial Court is the alleged confession of the accused to the murder of the deceased before the police in presence of witnesses. It is seen from the evidence that PW-3 deposed to have seen the accused confessing to the crime in para-19 of the deposition produced below- xxxx 19. Police babu was asking the accused Joseph Mohanty, Josef Mohanty told that he has killed Arati Mahapatra. xxxx However, during cross-examination, PW-3 admitted that he had not deposed that the accused had confessed to killing the deceased voluntarily. xxxxx 30. On the first day when I was examined, I did not depose that the accused told to have killed Arati Mahapatra, voluntarily stated that he was not asked he did not tell. xxxxx This material contradiction substantially weakens the prosecution's reliance upon PW-3 as a witness to the alleged confession and renders the finding of the Trial Court unsustainable. Similarly, PW-15 who witnessed the confession of the accused stated that he saw the police shouting loudly while asking the accused if he had committed the crime, to which the accused replied by confessing to it. 15. Section-25 of the Evidence Act, 1872 states that no confession made to a police officer shall be proved as against a person accused of any offence. That apart, the surrounding circumstances also cast serious doubt on the voluntariness of the alleged confession and its admissibility in court. Reference can be made to the case of Aghnoo Nagesia Vs. State of Bihar1,where the Supreme Court held as follows- “16.If the confession is caused by an inducement, threat or pro- mise as contemplated by s. 24 of the Evidence Act, the whole of the confession is excluded by s. 24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by s. 24. To hold that the proof of the admission of other incriminating facts is not barred by s. 24 is to rob the section of its practical utility-and content. It may be suggested that the bar of S. 24 does not apply to the other admissions, but though receivable in evidence, they are of no weight, as they were caused by inducement, threat or promise. According to- this suggestion, the other admissions are relevant but are of no value. But we think that on a plain construction of s. 24, proof of all the admissions of incriminating facts contained in a confessional statement is excluded by the section. Similarly, ss. 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence.” (Emphasis Added) 16. Similarly, the prosecution heavily relied upon the evidence of PW-3 corroborated by the evidence of PW-13,15 & 16. Much has been argued from both sides regarding the 1 AIR 1966 SC 119 acceptability of the evidence of PW-3 regarding the confession of guilt and showing the place of recovery of material objects as the basis of conviction. Reference in this regard can be made of section-26 of the Evidence Act which states- “26. Confession by accused while in custody of police not to be proved against him. No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” In the present case, no magistrate was present during the confession, however, the prosecution seeks to corroborate the same through the testimony of witnesses. Moreover, in his statement before the magistrate the accused has not made any such confession before the magistrate under Exhibit-3. In reference to the settled principles of law, the alleged confession by the accused cannot be regarded to be admissible before the Court and hence, not sufficient for proving the guilt of the accused. The learned trial Court, however, appears to have placed reliance upon the alleged confession said to have been made by the accused before the police, treating the testimony of PW-3 and 15 as corroborative thereof. 17. Section-27 of the Evidence Act provides the following: - “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.” While Sections 25 and 26 of the Evidence Act render a confession made to or while in the custody of the police inadmissible, Section 27 carves out only a limited exception by making admissible only so much of the information supplied by the accused as distinctly relates to the fact thereby discovered. The admissibility under Section 27 is confined to the discovery itself and does not extend to the remainder of the confessional statement admitting participation in the offence. Reference in this regard can be taken from the case of Pulukuri Kotayya and Others Versus King-Emperor2, where the privy council explained the application of Section 27 as follows: - 9. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to 2 AIR 1947 PC 67 bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. This view was reiterated by the Supreme Court in the case of Anter Singh vs State of Rajasthan3. In view of the above settled position of law, even if the disclosure leading to recovery of the material objects is assumed to be admissible, the alleged admission by the accused that he committed the murder is not. In the present case, the accused leading the police to the belongings of the deceased himself establishes only that he knew where the belongings were kept but it does not make his alleged confession to the murder of the deceased admissible as evidence. 18. As regards the material objects seized by the police, the trial Court has relied on the evidence relating to the discovery and seizure of 5 sarees and a blouse from the instance of the accused by the I.O.Coming to the identity of the articles, it is 3AIR 2004 SC 2865 seen that P.W.9 and P.W.14 identified the sarees and blouse as belonging to the deceased. However, admittedly no Test Identification Parade was held in respect of the seized articles as stated by PW-16, the I.O himself in his testimony. 19. The testimony of PW-9, the brother of the deceased clearly states that none of the family members of the deceased were called for the TI parade of the seized objects by the police and were only brought and shown the same at their own home later. Therefore, without a basis of TI Parade for the identification of the recovered objects, their identification becomes doubtful and cannot be concluded as sufficient for conviction. 20. However, with the confession excluded from consideration and the evidence relating to the weapon of offence and the identification of the recovered objects being doubtful, no incriminating circumstance survives sufficient to connect the accused with the homicidal death of the deceased. The prosecution has also failed to establish any other circumstance forming a complete chain pointing only towards the guilt of the accused. The conviction under Section 302 IPC, therefore, cannot be sustained. Page 16 of 20 21. We shall now move to the charge under Section 382 of the IPC. The prosecution case in this regard rests primarily on the alleged recovery of five sarees and one blouse at the instance of the accused, which are stated to have been stolen from the house of the deceased. We may therefore examine the evidence relating to such recovery. P.W.3 and 15 stated that the accused, while in police custody, disclosed before the police that he had kept the said articles in his house, whereafter the police proceeded to recover the same. However, both of themhave stated that they remained near a betel shop when the police along with the accused went inside the house and recovered a suitcase containing the sarees and blouse seized by the police. Thus, P.W.3 did not actually witness the recovery or seizure of the articles from the house of the accused. His evidence, therefore, is confined only to what transpired prior to the alleged recovery and does not extend to the actual seizure of the material objects. 22. Coming to the identity of the articles, it is seen that P.W.9 and P.W.14 identified the sarees and blouse as belonging to the deceased. PW-3 and 15 testified that the accused led the police to his instance at Siddheswar sahi, where the material objects were found. 23. The articles were identified nearly two years after the occurrence. There is also evidence that the family members of the deceased were shown the articles at their residence by the police prior to their identification in Court. In such circumstances, the evidentiary value of such identification becomes doubtful. The prosecution has also failed to establish by any independent evidence that the articles allegedly recovered were the very articles stolen from the house of the deceased. 24. The recovery of the seized articles merely establishes the discovery of the articles at the instance of the accused. It does not establish that the articles were stolen from the deceased unless their identity is independently proved.Once the prosecution fails to establish that the alleged stolen articles belonged to the deceased or were recovered from the conscious and exclusive possession of the accused in accordance with law, the very foundation of the charge under Section 382 IPC disappears.The mere recovery of ordinary household articles, without satisfactory proof of identity and lawful recovery, cannot sustain a conviction under Section 382 IPC. 25. We shall now advert to the conviction under Section 457 IPC.The prosecution has not adduced any direct evidence to establish that the accused committed lurking house trespass or house-breaking by night. The primary basis for the conviction in this regard by the trial Court seems to be the alleged confession of the accused in front of the police of murdering the deceased with two associates. The trial Court inferred from the statement that he was present in the house of the deceased at night. However, the accused was not seen by any witness while entering or leaving the house of the deceased nor was any evidence provided to the Court regarding his presence within the house of the deceased during the night of the occurrence. Moreover, as the recovered articles from the instance of the accused were never identified before the trial Court before being shown to the family their identification becomes unsafe to rely upon for concluding the presence of the accused in the house of the deceased. Page 19 of 20 26. As already discussed, the alleged confession is inadmissible and the evidence relating to the recovery of the seized articles has also been found to be unreliable. Apart from the above circumstances, no evidence has been brought on record to show that the accused was seen entering or leaving the house of the deceased during the night of the occurrence or that he was otherwise present inside the house at the time of occurrence. In such circumstances, the essential ingredients of the offence punishable under Section 457 IPC remain unproved. The conviction thereunder, therefore, cannot be sustained. 27. Thus, upon an independent analysis of the evidence on record, we find that none of the incriminating circumstances relied upon by the trial Court against the accused has been proved beyond reasonable doubt. The prosecution has therefore failed to establish a complete chain of circumstances proving the guilt of the accused under any of the charges framed against him. 28. In the result, the appeal is allowed. The impugned judgment of conviction dated 31.01.2006 passed by the learned Addl. Sessions Judge, Fast Track Court- III, Cuttack in S.T. Case No. 161/2004 is hereby set aside. The accused person being on bail, pursuant to the order of the appellate court dated 08.02.2012 his bail bonds be discharged. .......................................... (Sashikanta Mishra, J) Manash Ranjan Pathak, J. I agree. …........................................ (Manash Ranjan Pathak, J) Orissa High Court, Cuttack, The 23rd July, 2026/ B.C. Tudu, Sr. Steno