Orissa High Court
(From The Judgment And Order Dated … vs State Of Orissa on 7 April, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
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
Page 1 of 18
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
Page 2 of 18
him. Wife of the deceased Kamali Naik went and informedher 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.
Page 3 of 18
3. The trial Court framed four charges against the
accused persons, namely 460/34 IPC, 302/34 IPC, 324/34
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;
Page 4 of 18
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
Page 5 of 18
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
Page 6 of 18
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 policePage 7 of 18
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
Page 8 of 18
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
Page 9 of 18
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,
Page 10 of 18
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
Page 11 of 18
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 Punjab1, 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
Page 12 of 18
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 Bihar2, 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 not2
(2001) 8 SCC 311Page 13 of 18
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 Ram3 the supreme Court relying upon the judgments
in the case of Ram Gulam Chaudhary (supra) and
Sahadevan v. State4 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 be3
(2006) 12 SCC 254
4
(2003) 1 SCC 534Page 14 of 18
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
Page 15 of 18
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
Others5 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
Page 16 of 18
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
Page 17 of 18
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 7th April, 2026/A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication Page 18 of 18
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 07-Apr-2026 14:21:17