2026 INSC 1015 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 1047-1048 OF 2010

KARTIKA @ KIRTAN @

KIRTAN CHARAN JENA & ANR. ETC. ……Appellant(s)

VERSUS

THE STATE OF ODISHA ……Respondent(s)

WITH

CRIMINAL APPEAL NO (s). 2223 OF 2010

J U D G M E N T

PRASANNA B. VARALE, J.

1. The present criminal appeals arise out of the judgment and

order dated 06.05.2009 passed by the Division Bench of the High

Court of Orissa at Cuttack in Criminal Appeal Nos. 78 and 84 of

2004. By the impugned judgment and order, the High Court

2

dismissed the appeals filed by the Appellants and upheld the order

of the Ad hoc Additional District and Sessions Judge, Jajpur

[hereinafter referred to as “Trial Court”] passed in Sessions

Trial No. 158/14/26 of 2002, thereby convicting the Appellants

under Sections 148, 506, and 302 read with Section 149 of the

Indian Penal Code, 1860 [hereinafter referred to as “IPC”]. The

Appellants were sentenced to undergo imprisonment for life and

pay a fine of Rs. 3000/- each, and in default of payment of fine to

further undergo R.I. for 6 months.

BRIEF FACTS

2. The factual matrix of the case is that on 14.05.2001 at

approximately 4:00 PM, accused Narendra @ Narahari Behera

arrived at the house of the informant (PW-3) and abused the family

members in obscene language, specifically threatening to kill

Dhruba Pradhan [hereinafter referred to as “deceased”]. Later

that evening, at approximately 7:00 PM, a body of accused persons

armed with deadly weapons including a kata, tenta, stones, and a

saw, arrived at the informant’s house, searched for the deceased,

and threatened to kill him before departing toward Abhayapur.

3. Around the same time, while the deceased was traveling by

motorcycle, he was intercepted at Agi Chhak by the accused

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persons. When the deceased attempted to escape, the accused

persons forcibly caught hold of him and lifted him into a nearby

cultivable paddy field. Thereafter the accused persons assaulted

the deceased by throwing laterite stone on his head and with

thenga, iron rod, bhujali etc. as a result of which the deceased

succumbed to the injury. The accused persons threw the

deceased's motorcycle into the pond.

4. The First Information Report came to be lodged at the

instance of P.W. 3/Sri Siba Prasad Pradhan at 2:00 AM on

15.05.2001. On lodgment of report i.e., FIR No. 128 of 2001, the

criminal machinery was set into motion and the investigating

agency proceeded to the spot and seized various articles including

chopped up right wrist of the deceased, laterite stone and lathi.

5. The investigation concluded with the filing of a chargesheet

against 18 accused persons. Out of the 18 chargesheeted accused,

case against one accused abated due to his death and the case of

three accused persons was split up (as they were declared

absconders). The accused persons pleaded not guilty and claimed

trial. Consequently, 14 accused persons were committed to the

Court of Sessions for trial.

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6. The learned Trial Court framed charges against the 14

accused persons under Sections 148, 506/149, 302/149 of IPC

and the Sessions Trial No. 158/14/26/2002 was registered.

7. In order to prove its case, the prosecution presented 26

witnesses. The appellants/accused persons, presented 1 defence

witness.

8. On its appreciation of evidence, the Trial Court, vide its

judgment and order dated 28.01.2004, convicted 6 accused

persons (the present appellants before us) under Sections 148,

506, and 302/149 of the IPC, while acquitting 8 others by granting

them the benefit of doubt. The Appellants were sentenced to

undergo imprisonment for life and pay a fine of Rs. 3000/- each,

and in default of payment of fine to further undergo R.I. for 6

months for the offence under Section 302 IPC. As life

imprisonment was awarded for the main offence no separate

sentence was awarded for the offence under Sections

148/506/149 IPC.

9. Being aggrieved, the appellants challenged the judgment and

order of the Trial Court by way of 2 separate appeals, CRLA 84/04

and CRLA 78/04 before the High Court of Orissa at Cuttack. The

High Court on re-appreciation of evidence, discarded the eye

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witness testimony holding that the persons who committed assault

on the deceased could not have been identified in the pitch dark

night merely by the sound of assault. The High Court, however,

upheld the conviction of all the six convicted accused persons,

holding that though the prosecution failed to prove charges by

direct evidence, it has been successful in proving charges from

circumstantial evidence.

10. Aggrieved by the judgment and order passed by the High

Court, the six convicted accused persons approached this court by

filing present appeals. However, during the pendency of the appeal,

appellant Upendra Sethi and appellant Madhu Pradhan passed

away and, consequently, the appeal stood abated qua them. The

present appeals are, therefore, confined to the remaining four

appellants.

CONTENTIONS

11. Learned counsel for the appellants namely, Mrs. Rajdipa

Behura, Sr. Adv. and Mr. J.K. Das, Sr. Adv. have made the

following submissions:

a. Learned counsel vehemently submitted that once the High

Court rejected the testimony of eye witnesses (PW- 3, 4, 10,

11, 17 and 26) specifically holding that they could not have

witnessed the incident nor could have identified the accused

persons from a distance in a dark night, the conviction upheld

6

by the High Court on the basis of this very weak piece of

evidence is unsustainable.

b. Learned counsel further submitted that the version of the so

called eye witnesses is unacceptable on two grounds, firstly,

they being brothers and sister-in-laws of the deceased and

are as such interested witnesses and secondly there is a

stark contradiction between the version of these witnesses,

particularly, PW-17 (Sister-in-Law) who also claims to be an

eye witness contradicts the testimony of other eye witnesses.

c. Learned counsel further contended that the High Court

overlooked an important factum of the reasonable possibility

of alternative suspects while appreciating the evidence.

Learned counsel submits that PW-3 (brother of the deceased)

and PW-24 (Investigating Officer) stated before the Court in

their testimony that the deceased was having a long drawn

history of criminal antecedents. The testimony of these

witnesses disclosed that the deceased was involved in 13

criminal cases including serious offences like rape and

murder and because of his involvement in various crimes, a

large number of village folk was carrying a grudge against

him and had inimical terms with the deceased. It was also

stated before the Court by these witnesses that nearly 200-

250 people were searching for the deceased that night and as

the Appellants were having some inimical terms with the

deceased, their false implication cannot be ruled out.

d. Learned counsel further submits that insofar as the appellant-

Haladhar Rout is concerned, even the aspect of alleged

motive, that is, enmity is not at all proved by the prosecution,

on the contrary the evidence is otherwise.

e. Learned counsel submits that the testimony of the witnesses

PW-3 and PW-26, who are family members of the deceased

and other witness Rama clearly established that the

appellant Haladhar Rout was on cordial and visiting terms

with the deceased family and had no enmity with him. In a

case as observed by the High Court based on the

circumstantial evidence, motive is a crucial link which the

prosecution failed to establish against the appellants.

f. Learned counsel further submits that recovery of certain

articles namely, chopped right wrist of the deceased, laterite

stones and lathi is only at the spot and there is no recovery

at the instance of any of the appellants.

g. Learned counsel further submitted that though it is the case

of the prosecution that as many as 300 persons were

searching for the deceased for nearly three hours, the

prosecution failed to examine any independent witness and

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only the interested witnesses i.e. the family members of the

deceased are examined by the prosecution and non-

examination of independent witnesses cast a serious doubt

on the prosecution case.

12. Per contra, learned counsel namely, Mr. Vishnu Kant,

appearing for Respondent/State of Odisha has supported the

impugned judgment and order and made following

submissions:

a. Learned counsel contended that the present appeal, which

arises from the concurrent findings of the Trial Court and the

High Court of Orissa, lacks merit as the prosecution has

successfully established murder of deceased through an

unbroken chain of circumstances.

b. It was submitted that the genesis of the occurrence is well-

documented, beginning with an open threat issued by the

accused at 4:00 P.M. on 14.05.2001, which was consistently

proved by PW- 3, 4, 10, 11, 17 and 26. This threat was carried

into execution at 7:00 P.M. when the appellants, forming an

unlawful assembly armed with deadly weapons like farsa

and katuri, conducted an organized search for the deceased.

c. Learned counsel emphasized that the interception and

abduction of the deceased at Agi Chhak were witnessed and

corroborated by consistent testimonies, showing that the

deceased was forcibly taken to cultivable land despite his

attempts to flee. The subsequent conduct of the appellants,

that is, remaining at the spot for two hours and openly

proclaiming the murder constitutes a highly incriminating

circumstance that completes the chain of events.

d. It was further argued that the medical and physical evidence

provides complete assurance to the ocular version. The post-

mortem report conclusively establishes a homicidal death

consistent with a brutal assault, and the recovery of

incriminating articles, including a bamboo lathi, blood-stained

earth, and the deceased’s motorcycle from pond, rules out

any possibility of false implication.

e. Regarding the legal framework, learned counsel submitted

that under Section 149 of the IPC, once the common object of

the unlawful assembly is established, it is not necessary to

prove the specific overt act of each individual appellant. The

failure of the accused to offer any explanation regarding facts

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especially within their knowledge, such as what happened

after they forcibly took the deceased away, provides an

additional link in the chain of circumstances. The testimony

of hostile witnesses (PW-14 and PW-15) can still be relied

upon for the parts that are trustworthy and corroborate the

prosecution’s case regarding the organized search. The

evidence of related witnesses (PW-3, PW-4) should not be

discarded merely on the ground of relationship, as their

depositions are natural, consistent, and corroborated by

surrounding circumstances.

f. Finally, learned counsel submitted that since the prosecution

has established the foundational facts beyond reasonable

doubt, and the Courts below have arrived at concurrent

findings of guilt based on a careful scrutiny of evidence, there

is no ground warranting interference with the sentence of life

imprisonment.

ANALYSIS

13. Heard Learned Counsel for the appellant as well as Learned

Counsel for the respondent. We have also perused relevant material

on record and the judgments passed by the Courts below.

14. Considering the rival submissions and having carefully

examined the evidence on record, we find considerable merit in

submission of the learned counsel representing the appellants and

as such we are unable to persuade ourselves to concur with the

view taken by the High Court.

15. Though the medical evidence clearly established that the

deceased died a homicidal death, the question before us is whether

the prosecution was successful in establishing the appellants’

9

authorship of the crime and we find that the prosecution failed to

establish its case against the prosecution for the following reasons.

16. At the outset, it is necessary to note that the prosecution

case, as unfolded in the FIR and during trial, rested primarily on

the testimony of the alleged eyewitnesses, namely PWs 3, 4, 10,

11, 17 and 26. It is pertinent to note that all the aforementioned

prosecution witnesses are related to the deceased. PW-3 and PW-

4 are the brothers of the deceased, while PW-10, PW-11, PW-17,

and PW-26 are his sisters-in-law.

17. Since the prosecution case rests primarily on the testimony

of these alleged eye-witnesses, it is necessary to examine their

evidence in some detail. The testimony of PW-3 reveals that he was

not present at the spot when the incident occurred. Significantly,

in the First Information Report lodged by him, he stated that only

PW-17 and PW-26 had witnessed the occurrence. However, the

testimony of PW-4 presents a materially different version.

According to PW-4, he, along with PW-3, PW-10, PW-11, PW-17,

and PW-26, was observing the accused persons at the time of the

incident. Thus, while PW-3's version indicates that he was not an

eye-witness to the occurrence, PW-4's testimony seeks to portray

PW-3, along with the other prosecution witnesses, as being present

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and witnessing the incident, giving rise to a significant

inconsistency in the prosecution case.

18. Further, referring to the testimonies of other eye-witnesses it

is evident that the incident took place in a pitch dark night. The

question which arises before us is whether it was possible for the

eyewitnesses to have witnessed the incident in a dark night from

a distance of 60 cubits. In this regard, it is apposite to refer to the

decision of the Supreme Court in State of U.P. v. Ashok Kumar

1,.

In that case, the Supreme Court found the testimony of the alleged

eye-witnesses to be unreliable, holding that it was improbable for

them to have identified the accused even in moonlight. The

relevant extract reads as follows:

“3. The first question which falls for consideration is as to

whether or not the witnesses would be in a position to identify

the respondents from such a large distance at night. It is true

that it was a moonlit night but from a reference to the almanac

it would appear that the moon had covered 3/4th distance on

the night of occurrence and was to set at 2.23 a.m. Even

though there may be some moonlight at that night, it is

difficult for the witnesses to identify the respondents or even

if they did the possibility of mistake in identification cannot

be completely excluded. In this connection, we may refer with

advantage to the following passage appearing in Dr Hans

Gross's Criminal Investigation at p. 185:

“By moonlight one can recognise, when the moon is at the

quarter, persons at a distance of from 21 feet in bright moonlight

at from 23 to 33 feet; and at the very brightest period of the full

1

(1979) 3 SCC 1

11

moon, at a distance of from 33 to 36 feet. In tropical countries the

distances for moonlight may be increased.”

4. The opinion of Gross referred to above fully fortifies our

conclusions that it was not possible for the witnesses to have

identified the respondents even in moonlight from a distance of

about 150 yards. In these circumstances, therefore, the High

Court was fully justified in holding that it was not possible for the

eyewitnesses to identify the respondents from such a long

distance on the night of the occurrence. The prosecution

suggested that the witnesses had lighted their torches and it was

in the light of torches coupled with moonlight that identification

was possible. In the first place, we find it difficult to believe that

after Ashok Kumar had given a call and fired, the witnesses

would dare to flash the torch light and expose themselves to the

risk of being shot themselves. Secondly, even if torches were

lighted, in view of the large distance, it would not be possible for

the witnesses to identify the respondents with absolute

certainty.”

19. Though in the above referred case of Ashok Kumar (supra),

the source of light was at least moonlight but in the present case,

the testimony of witnesses clearly show that it was a pitch dark

night and the source of light was provided by the accused

themselves i.e. the torch light to identify the deceased. Considering

this very aspect, a categorical finding was recorded by the High

Court that it was not possible for the prosecution witnesses to have

witnessed the incident on a pitch dark night or to identify the

assailants merely on the basis of sound of the assault. The

testimony of the alleged witness cannot be relied upon.

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20. Further, the testimony of PW-4 reveals that the accused

persons focused the torch light to identify the deceased. On this it

is important to refer to Tamilselvan v. State

2, which held that:

“8. Before dealing with these glaring inconsistencies it may

be pointed out that the incident occurred at 10.30 p.m. on 27-

1-1996. It is alleged by the prosecution witnesses that they

identified the accused in moonlight. We find it difficult to

accept this version of the prosecution witnesses that they

could have identified any of the accused merely by the

moonlight. In the evidence of the prosecution witnesses it is

stated that the accused were carrying torches, but there is no

indication whether the victims, including the Forest Guard

Swaminathan (the deceased) and Raju, the gardener, who

sustained fire injuries, carried torches.

9. Since it was the accused who allegedly carried torches, we

find it difficult to believe how the prosecution witnesses could

have identified the assailants. The position would have been

different if the forest guards had been carrying torches and

had been pointing them at the assailants, but here the

position is just the reverse. In fact due to the torches of the

assailants the prosecution witnesses would have been

partially blinded by the light of the torchlight, and would not

have been able to identify anybody.”

21. In view of the aforesaid decisions and the categorical finding

recorded by the High Court that it was not possible for the

prosecution witnesses to have witnessed the incident on a pitch-

dark night or to identify the assailants merely on the basis of the

sound of the assault, the testimony of the alleged eye-witnesses

cannot be relied upon.

2

(2008) 7 SCC 755

13

22. Once the testimony of the alleged eye-witnesses is discarded,

the prosecution case necessarily becomes one based solely on

circumstantial evidence. However, having discarded the ocular

version, the High Court proceeded to examine whether the

prosecution had succeeded in establishing the guilt of the accused

on the basis of the circumstantial evidence on record and, on that

basis, upheld the conviction. The correctness of such an approach

must, therefore, be examined in light of the settled principles

governing cases resting entirely on circumstantial evidence.

23. Though the law regarding circumstantial evidence has been

crystallised by this Court in various judgments but it will not be

out of place to refer to an oftenly quoted judgment of this Court in

Sharad Birdhichand Sarda v. State of Maharashtra

3, wherein

this Court has observed a “panchsutra” for dealing with the cases

of circumstantial evidence. These are as follows:

(1) the circumstances from which the conclusion of guilt is to be drawn

should in the first instance be fully established; (2) all the facts so

established should be consistent only with the hypothesis of the guilt of

the accused; (3) Again, the circumstances should be of a conclusive

nature and tendency; (4) they should be such as to exclude every

3

(1984) 4 SCC 116

14

hypothesis but the one proposed to be proved; (5) there must be a chain

of evidence so far complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and it must be

such as to show that within all human probability the act must have

been done by the accused.”

24. Furthermore, in Kamal v. State (NCT of Delhi)

4, it was held

that circumstances concerned “must or should” and not “may be”

established . It held that it is settled principle that however strong

a suspicion may be, it cannot take place of a proof beyond

reasonable doubt.

“18. It can thus be seen that this Court has held that the

circumstances from which the conclusion of guilt is to be

drawn should be fully established. It has been held that the

circumstances concerned “must or should” and not “may be”

established. It has been held that there is not only a

grammatical but a legal distinction between “may be proved”

and “must be or should be proved”. It has been held that the

facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except that

the accused is guilty. It has been held that the circumstances

should be of a conclusive nature and tendency and they

should exclude every possible hypothesis except the one

sought to be proved, and that there must be a chain of

evidence so complete so as not to leave any reasonable

ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act

must have been done by the accused.

19. It is a settled principle of law that however strong a

suspicion may be, it cannot take place of a proof beyond

4

2023 SCC Online SC 933

15

reasonable doubt. In the light of these guiding principles, we

will have to consider the present case.”

25. In the light of these guiding principles, we will have to

examine the present case.

26. The circumstances relied upon by the learned High Court

are- (i) appellant Narendra @ Nahari Behera visited deceased’s

house at 4pm and threatened to kill deceased (ii) appellants armed

with weapons came to deceased’s house at 7pm (iii) statement of

PW 14 and PW 15 that about 200 to 250 persons were searching

for deceased (iv) appellants waited for the deceased at Agi Chhak

and identified deceased with torch light and assaulted him (v)

identification of appellants through their voice (vi) eye witnesses

who heard the sound of assault (vii) appellants waited for 2 hours

to assault family members of the deceased (viii) recovery of weapon

from the spot and motorcycle driven by deceased.

27. Insofar as the Circumstance (i), (ii) and (iv) are concerned, it

rest substantially on the depositions of PW-3, PW-4, PW-10, PW-

11, PW-17 and PW-26. Testimonies of these witnesses suffer from

material inconsistency as to who was and who was not present to

witness the incident.

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28. It may not be out of place to state that the conduct of the

witnesses is also beyond the natural conduct. Though PW-3 claims

himself to be an eye witness interestingly he is unable to state as

to which weapon was carried by which of the accused. He also

states that after assault, he had gone to his house and after two

hours came back to the spot meaning thereby he makes no

attempt to inform about such a serious incident either to the other

family members or to anybody else in the village.

29. Insofar as the circumstance relating to the identification of

the appellants is concerned, the reliance placed upon it by the High

Court appears to be misconceived. We have also discarded the

testimony of the prosecution witnesses on this aspect, as it is not

possible to safely conclude that they had either witnessed the

occurrence on a pitch-dark night or identified the assailants

merely on the basis of the sounds of the assault. Once such

evidence is found to be unreliable, the circumstance of

identification cannot be said to have been proved.

30. We also find no merit in the theory of the prosecution that

the deceased died due to hit of a 53 kg laterite stone as there is

absolutely no material to show that how this heavy stone weighing

53 kg was brought and who brought it and also the prosecution

17

was unable to recover this so-called 53 kg laterite stone which was

used for commission of offence. It may not be out of place to state

that the medical officer PW-18 in his testimony before Court

deposed that “there is every likelihood of causing fracture as well

as brain hemorrhage, if a laterite stone such as MO3 has been

thrown from the height of 2 ft. on the head of the person lying on

the ground”. He further deposed that “no weapon of offence

including laterite stone like MO3 was sent to me by Investigating

Officer for my opinion”.

31. It is worthy to refer to the judgment of this Court in Abdul

Nassar v. State of Kerala

5, which enunciated the principles that

courts must adhere to while appreciating and evaluating evidence

in cases based on circumstantial evidence. One of the principles

enunciated is that each of the circumstance must be proved

individually. The relevant extract is as follows:

“30. We deem it essential to enunciate the principles that

courts must adhere to while appreciating and evaluating

evidence in cases based on circumstantial evidence, as

follows:

….(iii). Each of the links of incriminating circumstantial

evidence should be meticulously examined so as to find out if

each one of the circumstances is proved individually and

whether collectively taken, they forge an unbroken chain

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2025 SCC OnLine SC 111

18

consistent only with the hypothesis of the guilt of the accused

and totally inconsistent with his innocence…..”

32. Thus, it is a settled position of law that to convict the accused

on the basis of circumstantial evidence each circumstance must

be established beyond doubt and collectively point towards the

guilt of the accused.

33. Viewed cumulatively, the prosecution has failed to establish

a complete and consistent chain of circumstances excluding every

hypothesis other than the guilt of the appellants. The evidence on

record leaves substantial gaps which create a reasonable doubt as

to their involvement. In criminal jurisprudence, where two views

are reasonably possible, the one favourable to the accused must

prevail.

34. In the circumstances, we are of the considered opinion that

the High Court was not justified in affirming the conviction of the

appellants. They are entitled to the benefit of doubt.

35. In the result, we pass the following order:

a. The appeals are allowed;

b. The judgment and order of the High Court dated

06.05.2009 in Criminal Appeal Nos. 78 and 84 of 2004

and the judgment and order of conviction and sentence

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dated 28.01.2004 passed by the trial court in Sessions

Trial No. 158/14/26 of 2002 are quashed and set aside.

36. Pending application(s), if any, shall stand disposed of.

........................................J.

[M.M. SUNDRESH]

.........................................J.

[PRASANNA B. VARALE]

NEW DELHI;

SEPTEMBER 18, 2026.