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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLA No. 247 of 2004

(From the judgment and order dated 07.08.2004 passed by

learned Sessions Judge, Dhenkanal in S.T. Case No. 191 of

2001)

AFR Sarat Behera …. Appellant

-Versus-

State of Orissa ….. Respondent

Advocate(s) appeared in this case through hybrid mode:

For Appellant : M/s. B.R. Mohanty, B.K. Raj, P.R.

Mishra & M.K. Mohanty, Advocates

For Respondent : Mr. Suvalaxmi Devi,

Addl. Standing Counsel

___________________________________________________________

CORAM

THE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA

Date of Hearing :31.03.2026 :: Date of Judgment:07.04.2026

SASHIKANTA MISHRA, J.

Two persons — the present appellant and the

original appellant No.1 faced trial in S.T. Case No. 191 of

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2001 in the Court of learned Sessions Judge, Dhenkanal for

committing the murder of one Sarat Naik along with other

charges. Both were convicted under Sections 302, 201, 452,

324/34 IPC. They were sentenced to rigorous imprisonment

for life and to pay fine of Rs.1,000/-, in default, to undergo

RI for 3 months under Section 302 IPC, RI for 3 years and

fine of Rs.500/-, in default, RI for 3 months under Section

201 IPC, RI for 3 years and fine of Rs.500/-, in default, RI

for 3 months under Section 452 IPC and RI for one year

under Section 324 IPC. Said judgment is impugned in the

present appeal. Be it noted that during pendency of this

appeal, the appellant No.1, Bhaskar Behera having died, the

appeal has abated against him.

2. Prosecution case, briefly stated, is as follows:

On 23.12.2000 in village Badamunda under Balimi

P.S. in the district of Dhenkanal, while the deceased Sarat

Nayak was having his dinner in his home at about 8 p.m.,

both appellants being armed with stick and axe arrived

there and dragged him outside and then left the place with

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him. Wife of the deceased Kamali Naik went and informed

her father-in-law, who went to the house of accused

Bhaskar Behera and saw that both of them had assaulted

the deceased by means of the aforementioned weapons and

that the deceased was lying with bleeding injuries in front of

their house. When the father of the deceased protested, both

accused persons chased him and assaulted him with the

same weapons causing injuries. He was taken to the

hospital for treatment. The dead body of the deceased was

not found at the spot thereafter despite search. On the next

day morning at about 11 a.m., Kamali Naik went to Balimi

Police Station and lodged a written report, basing on which

Balimi P.S. Case No. 53 was registered under Sections

302/323/324/201/34 IPC followed by investigation. In

course of investigation, the dead body was recovered from

the well of a villager at the instance of the accused persons.

Upon completion of investigation, charge sheet was

submitted against the accused persons.

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3. The trial Court framed four charges against the

accused persons, namely 460/34 IPC, 302/34 IPC, 324/34

IPC and 201/34 IPC.

4. Accused persons took the plea of denial and false

implication.

5. To prove its case, prosecution examined 10

witnesses and proved 16 documents. It also proved 6

material objects. Defence did not adduce any evidence either

oral or documentary.

6. After analysing the evidence on record, the trial

Court found a complete chain of circumstances proving the

guilt of accused persons. As such, they were convicted and

sentenced as already stated hereinbefore.

7. Heard Mr. B.R. Mohanty, learned counsel for the

appellant and Ms. Suvalaxmi Devi, learned Addl. Standing

Counsel for the State.

8. Mr. Mohanty assails the impugned judgment

raising the following grounds;

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A. The independent witnesses did not support the

prosecution case and therefore, the version of

other witnesses should not have been accepted by

the trial Court.

B. The conduct of the deceased revealed that he

was himself a hardened criminal and so also his

father (deceased appellant) being involved in a

series of criminal cases.

C. Only relatives of the deceased were examined.

D. Prosecution did not explain as to how the dead

body of the deceased came to the well of Kedar

Pradhan.

9. Per contra, Ms. Suvalaxmi Devi would argue that

the strongest evidence on record is the ‘last seen’ evidence

which is amply proved by the version of PW-5. Since she

categorically stated that the accused persons being armed,

dragged her husband while he was having dinner and soon

thereafter, he was found dead, it was for the accused

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persons to explain as to how he met with his death. Since

they did not do so, the trial Court rightly treated this

omission as an incriminating piece of evidence. Further, the

recovery of the dead body from the well with a stone tied to

its body is also a strong incriminating circumstance since

the dead body itself was recovered at the instance of the

accused. As regards the argument regarding examination of

relative witnesses, Ms Suvalaxmi would argue that relatives

cannot be expected to falsely blame someone and allow the

actual offender to escape.

10. Before delving into the rival contentions, we deem

it proper to independently analyse the evidence on record.

The FIR was lodged by the wife of the deceased stating that

while her husband was having dinner, both the accused

persons being armed with stick and axe came to their house

and dragged the deceased out. They also left with him. She

having informed her father-in-law, the latter went and found

his son lying dead with bleeding injuries in front of the

house of the accused persons. The informant was examined

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as PW-5. She has fully corroborated the FIR story. Nothing

was brought out from her mouth in cross-examination so as

to view her sworn testimony with suspicion. PW-4 is her

father-in-law. He also corroborated the version of PW-5 fully

and in material particulars. Significantly he is an injured

witness being assaulted by both the accused persons at the

spot where his son was lying dead. His injury has been

proved. The dead body was found in the well belonging to

Kedar Pradhan. The I.O. has proved the disclosure

statement made by accused Sarat which led to discovery of

the dead body. The dead body itself was found with a stone

tied around, obviously to prevent it from floating to the

surface. The trial Court listed the following as incriminating

circumstances.

“27. Thus, the evidences discussed above, i.e. (a)

the deceased was last found in the company of the

accused persons on their front courtyard-cum-

thrashing floor where there was blood patches, (b)

the accused persons were armed with lathi and

tangi, injuries were found on the body of the

deceased, inflicted by such weapons of offence; (c)

even P.W.4 found the accused persons dealing

blows on the deceased; (d) soon thereafter, P.W.1

had seen the dead body of the deceased on the

thrashing floor of the accused, (e) on the

information of accused Bhaskar, while in police

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custody, the body was recovered from inside a

well, tied by a stone; (f) the tangi was also

recovered on the information of A.1. Bhaskar, (g)

the lathi containing human blood recovered and

seized from the house of the accused persons,

amply complete the chain of evidence fully

consistent with the guilt of the accused persons

and inconsistent with their innocence.”

On such basis, it was held that prosecution had

proved its case against the accused persons and thus, they

were convicted.

11. Now, we shall determine the correctness of the

findings taking note of the grounds raised by the defence.

11.1. We do not agree with the contention that no

conviction can lie unless independent witnesses support the

prosecution case. There is no such legal principle. Even if

the evidence of a solitary eyewitness is found to be credible,

the Court can always base the order of conviction on such

evidence. In the instant case, PWs. 1, 2 and 3, who are

independent witnesses, turned hostile. Their evidence is

therefore, practically of no value. But then, even if their

evidence is brushed aside, other evidence can always be

looked into. In fact, we find that the trial Court has relied

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heavily upon the evidence of PW-5, who had last seen the

deceased in the company of the accused persons shortly

prior to his death. The trial Court also relied upon the

evidence of PW-4, who being an injured witness himself had

seen the assault on the deceased by the accused persons

and of him lying dead with bleeding injuries. So, on the face

of such clinching evidence being available on record, we find

no justification to discard the same only because the

independent witnesses turned hostile.

11.2. It has been argued that the deceased was himself

a hardened criminal being involved in multiple criminal

cases. Learned counsel for the appellant has drawn our

attention to the admission of PW-4 in his evidence in this

regard. We are however, not very impressed with this

argument nor do we consider it a reason to interfere with

the order of conviction. The Penal Code does not make any

distinction between human beings when it comes to act of

culpable homicide either amounting to murder or not

amounting to murder. Even if the deceased was a hardened

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criminal himself, it does not give a licence to any person to

take the law into his own hands and commit his murder.

The argument advanced in this regard is fallacious and

hence, not acceptable.

11.3. Defence has argued that the evidence of PWs-4

and 5, who are father and wife respectively of the deceased,

should not be accepted as being close relations and

independent witnesses not having corroborated their

versions, the possibility of false implication at their instance

cannot be ruled out. This argument is not acceptable,

firstly, for the reason that being close relations of the

deceased, the witnesses would never wilfully implicate

someone not complicit thereby allowing the actual offender

to go scot free. Secondly, no reason is ascribed or suggested

by defence while cross-examining these witnesses for false

implication. The argument is therefore, not acceptable.

11.4. It has been argued vehemently that prosecution

should have explained as to how the dead body of the

deceased came inside the well in the first place. Further,

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there being no witness to the so-called disclosure statement

made by the accused before the I.O., his version alone

cannot be accepted. It is seen that the dead body was

initially found in front of the house (threshing floor) of the

accused persons and subsequently, it disappeared. It is

borne out from the evidence on record that subsequently the

dead body was fished out from the well in presence of police

and fire brigade. A stone was found to have been tied with a

rope around the waist of the dead body. There is therefore,

no dispute that the dead body was found from the well.

There is also no dispute that a stone was tied with a rope

around the dead body. We will briefly refer to the evidence of

the autopsy surgeon, PW-7, who found as many as 15

injuries including 13 cut injuries on the body of the

deceased. He stated that death was caused because of said

injuries. He further deposed that the cut injuries could be

caused by the sharp edge of tangi and other injuries by the

lathi. So, the injuries are consistent with the prosecution

case that the accused persons assaulted the deceased by

means of stick and axe. While, according to defence, it is for

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the prosecution to explain how the dead body came to be

found inside the well we think that in the facts and

circumstances, the reverse would apply. In other words,

given the evidence that the deceased was last seen in the

company of the accused persons and thereafter lying dead

with bleeding injuries in front of their house, the onus shifts

to them rather than the prosecution to explain how the dead

body could be found in the well. What is highly significant is

that a stone was tied to a rock around the dead body. This

was obviously done to prevent the body from floating to the

surface upon decomposition and thereby an act of

concealment. Law is well settled in this regard. In the case

of Sucha Singh v. State of Punjab

1, the Supreme Court

held as follows;

“15. The abductors alone could tell the court as to

what happened to the deceased after they were

abducted. When the abductors withheld that

information from the court there is every justification

for drawing the inference, in the light of all the

preceding and succeeding circumstances adverted

to above, that the abductors are the murderers of

the deceased.

1

(2001) 4 SCC 375

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19. We pointed out that Section 106 of the Evidence

Act is not intended to relieve the prosecution of its

burden to prove the guilt of the accused beyond

reasonable doubt, but the section would apply to

cases where the prosecution has succeeded in

proving facts for which a reasonable inference can

be drawn regarding the existence of certain other

facts, unless the accused by virtue of special

knowledge regarding such facts failed to offer any

explanation which might drive the court to draw a

different inference.”

In view of the above discussion, it can be easily

said that the accused persons having dragged out the

deceased from his house and thereafter he being seen lying

dead in front of their house with bleeding injuries, they

must be held to have had the special knowledge regarding

his whereabouts as no one else had seen the deceased

thereafter. In the case of Ram Gulam Chaudhary v. State

of Bihar

2, the Supreme Court held as follows:

“24. Even otherwise, in our view, this is a case

where Section 106 of the Evidence Act would

apply. Krishnanand Chaudhary was brutally

assaulted and then a chhura-blow was given on

the chest. Thus chhura-blow was given after Bijoy

Chaudhary had said “he is still alive and should

be killed”. The appellants then carried away the

body. What happened thereafter to Krishnanand

Chaudhary is especially within the knowledge of

the appellants. The appellants have given no

explanation as to what they did after they took

away the body. Krishnanand Chaudhary has not

2

(2001) 8 SCC 311

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been since seen alive. In the absence of an

explanation, and considering the fact that the

appellants were suspecting the boy to have

kidnapped and killed the child of the family of the

appellants, it was for the appellants to have

explained what they did with him after they took

him away. When the abductors withheld that

information from the court, there is every

justification for drawing the inference that they

had murdered the boy. Even though Section 106 of

the Evidence Act may not be intended to relieve the

prosecution of its burden to prove the guilt of the

accused beyond reasonable doubt, but the section

would apply to cases like the present, where the

prosecution has succeeded in proving facts from

which a reasonable inference can be drawn

regarding death. The appellants by virtue of their

special knowledge must offer an explanation which

might lead the Court to draw a different inference.

We, therefore, see no substance in this submission

of Mr Mishra.”

Similarly, in the case of State of Rajasthan vs.

Kashi Ram

3 the supreme Court relying upon the judgments

in the case of Ram Gulam Chaudhary (supra) and

Sahadevan v. State

4 held as follows:

“23. It is not necessary to multiply with authorities.

The principle is well settled. The provisions of

Section 106 of the Evidence Act itself are

unambiguous and categoric in laying down that

when any fact is especially within the knowledge

of a person, the burden of proving that fact is upon

him. Thus, if a person is last seen with the

deceased, he must offer an explanation as to how

and when he parted company. He must furnish an

explanation which appears to the court to be

3

(2006) 12 SCC 254

4

(2003) 1 SCC 534

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probable and satisfactory. If he does so he must be

held to have discharged his burden. If he fails to

offer an explanation on the basis of facts within his

special knowledge, he fails to discharge the burden

cast upon him by Section 106 of the Evidence Act.

In a case resting on circumstantial evidence if the

accused fails to offer a reasonable explanation in

discharge of the burden placed on him, that itself

provides an additional link in the chain of

circumstances proved against him. Section 106

does not shift the burden of proof in a criminal trial,

which is always upon the prosecution. It lays

down the rule that when the accused does not

throw any light upon facts which are specially

within his knowledge and which could not support

any theory or hypothesis compatible with his

innocence, the court can consider his failure to

adduce any explanation, as an additional link

which completes the chain. The principle has been

succinctly stated in Naina Mohd., Re. [AIR 1960

Mad 218 : 1960 Cri LJ 620]”

Be it noted that when asked during their

examination under Section 313 Cr.P.C., both the accused

persons offered no explanation in this regard. This tells its

own story.

11.5. Another question that was raised is the absence

of independent corroboration of the I.O.’s statement

regarding recovery of the weapon of offence as well as

discovery of the dead body from the well. According to the

defence, the I.O’s evidence could not have been relied upon.

We do not agree at all. It is not an unalterable principle of

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law that evidence of a police officer should not be accepted.

In the instant case, the I.O. stated that the dead body was

discovered at the instance of the accused, Bhaskar.

Recovery of the dead body was independently proved by PW-

6, who along with one Ainthu Nayak had gone into the well

and brought out of the dead body.

In the case of Govt. of NCT Delhi vs. Sunil and

Others

5

the Supreme Court held as follows;

“…..……..official acts of the police have been

regularly performed in a wise principle of

presumption and recognized even by the

Legislature. Hence, when a police officer gave

evidence in the Court; that a certain article was

recovered by him, on the strength of the statement

made by the accused, it is open to the Court to

believe the version to be correct if it is not

otherwise shown to be unreliable.……...”

Needless to mention, merely by questioning the

correctness of the evidence of the I.O., defence has not been

able to show as to how or for what reason he is to be treated

as an unreliable witness. Of course, we would hasten to add

that had there been no other evidence against the accused

persons the matter would have been different. But here is a

5

2001 (1) CRIME 176

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case, where there is ample evidence to show the complicity

of the accused persons. Moreover, even ignoring the

evidence of the I.O. for a moment, the fact that the accused

persons had dragged the deceased from out of his house,

killed him by means of weapons and thrown his dead body

in front of their house initially, in all human probability, it is

they who must have carried the dead body and thrown it

inside the well taking further precaution by tying it with a

piece of stone to avoid detection.

12. Thus, none of the grounds urged on behalf of the

appellant to question the correctness of the impugned

judgment finds favour with us. On the contrary, having

perused the impugned judgment carefully we find that the

trial Court has meticulously analysed the evidence on

record to find a complete chain of circumstances pointing at

the guilt of the accused. In view of what has been narrated

hereinbefore, we find no reason to differ.

13. For the foregoing reasons therefore, the appeal is

found to be devoid of merit and is therefore, dismissed. The

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appellant- Sarat Behera being on bail, his bail bonds be

cancelled and he be sent to custody forthwith to serve the

remaining part of the sentence.

..........................................

(Sashikanta Mishra, J)

Manash Ranjan Pathak, J. I agree.

…........................................

(Manash Ranjan Pathak, J)

Orissa High Court, Cuttack

The 7

th April, 2026/A.K. Rana, P.A.