Kartika @ Kirtan @ Kirtan Charan Jena & Anr. Etc. v. The State of Odisha – Criminal Appeal Nos. 1047-1048 of 2010 with Criminal Appeal No. 2223 of 2010 – 2026 INSC 1015 – September 18, 2026 – Hon’ble Mr. Justice M.M. Sundresh and Hon’ble Mr. Justice Prasanna B. Varale.
Appellants, Impugned Judgment, and Factual Matrix
The appeals were preferred by appellants Kartika @ Kirtan @ Kirtan Charan Jena, Haladhar Rout, Rama Chandra Jena, and Niranjan Jena (the appeals having abated qua co-appellants Upendra Sethi and Madhu Pradhan due to their demise pendente lite) assailing the impugned 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, which affirmed the Trial Court’s conviction and life sentences under Sections 148, 506, and 302 read with Section 149 of the Indian Penal Code, 1860; the underlying factual matrix stems from an incident on 14.05.2001 wherein accused Narendra @ Narahari Behera allegedly threatened to kill Dhruba Pradhan at 4:00 PM at the informant’s house, followed at 7:00 PM by an armed assembly searching for him, subsequent interception of the deceased riding a motorcycle at Agi Chhak, dragging him into an adjacent paddy field, and inflicting fatal injuries with sharp weapons and a heavy laterite stone before casting the motorcycle into a tank, leading to FIR No. 128 of 2001 registered at 2:00 AM on 15.05.2001. [Paras 1–5, 9, 10]
Verdicts of the Lower Courts
The Ad hoc Additional District and Sessions Judge, Jajpur, vide judgment dated 28.01.2004 in Sessions Trial No. 158/14/26 of 2002, tried fourteen accused persons on charges framed under Sections 148, 506/149, and 302/149 of the Indian Penal Code, 1860, and upon evaluating twenty-six prosecution witnesses and one defence witness, convicted six accused persons while acquitting eight others on the benefit of doubt, sentencing the convicts to rigorous imprisonment for life and a fine of Rs. 3,000/- each; on appellate challenge, the High Court of Orissa, vide impugned judgment dated 06.05.2009 in Criminal Appeal Nos. 78 and 84 of 2004, categorically discredited and discarded the direct ocular testimonies of the prosecution eyewitnesses (PW-3, PW-4, PW-10, PW-11, PW-17, and PW-26) holding that nocturnal identification on a pitch-dark night from a distance of sixty cubits merely by sounds of assault was impossible, yet maintained the convictions by treating the residual prosecution narrative as an established chain of circumstantial evidence. [Paras 6, 8, 9, 21, 26]
Core Legal Arguments of the Parties
Learned Senior Counsel for the appellants contended that once ocular evidence was repudiated by the High Court, the conviction could not stand on an incomplete circumstantial chain failing the Panchsheel criteria, stressing that nocturnal identification was inherently flawed, the alleged 53 kg laterite stone was never recovered or medically examined, the conduct of the informant (PW-3) in absconding home for two hours without raising hue and cry was unnatural, motive was absent regarding appellant Haladhar Rout, and the possibility of alternative assailants remained unexcluded given that 200–250 villagers harbored hostility toward the deceased who had thirteen criminal antecedents; conversely, learned counsel for the State of Odisha maintained that the genesis of the crime was established by successive threats at 4:00 PM and 7:00 PM, abduction and assault at Agi Chhak were substantiated, the appellants’ subsequent conduct in lingering at the scene for two hours demonstrated culpability, medical evidence corroborated homicidal death, and under Section 149 of the Indian Penal Code, proof of common object obviated the necessity of establishing specific individual overt acts. [Paras 11, 12]
Ratio Decidendi
Where direct ocular evidence is discarded as inherently untrustworthy owing to the impossibility of reliable identification under conditions of pitch darkness, a conviction cannot be sustained on circumstantial evidence unless each incriminating link is independently and conclusively established beyond reasonable doubt to forge an unbroken chain consistent exclusively with the hypothesis of guilt and incapable of explanation upon any other reasonable hypothesis; grave suspicion cannot substitute for judicial proof, and where substantial gaps persist in the circumstantial chain leaving two views reasonably possible, the view favorable to the accused must prevail, entitling the accused to an acquittal on the benefit of doubt. [Paras 21–25, 29–34]
Important Paragraphs
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.
Medical evidence established the homicidal death
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’ authorship of the crime and we find that the prosecution failed to establish its case against the prosecution for the following reasons.
Most prosecution witnesses are related witnesses
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 PW4 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 and witnessing the incident, giving rise to a significant inconsistency in the prosecution case.
Prosecution witness not possible to identify the assailants on a pitch-dark night discarded
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.
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.
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.
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, PW11, 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.
It is not possible to identify the assailants in the pitch-dark night with the sounds of the assault
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.
Theory of prosecution as if the deceased died due to hit of 53kg laterite stone as there is no materials to show how this stone was brought and who brought it
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 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”.
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.
Conclusion
Two views are possible favours the accused must prevail
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.
Appeal allowed
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 dated 28.01.2004 passed by the trial court in Sessions Trial No. 158/14/26 of 2002 are quashed and set aside.
Resources
- State of U.P. v. Ashok Kumar, (1979) 3 SCC 1: Held that identification of assailants by alleged eyewitnesses from a substantial distance at night is highly improbable and unsafe to rely upon, even where moonlight exists.
- Tamilselvan v. State, (2008) 7 SCC 755: Held that where the source of light (torches) is held and directed by the assailants, the resulting glare would partially blind the witnesses, rendering reliable ocular identification impossible.
- Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116: Established the foundational five golden principles (Panchsheel) for circumstantial evidence, mandating that circumstances must be fully established, conclusive, consistent solely with guilt, exclude every hypothesis of innocence, and form an unbroken chain.
- Kamal v. State (NCT of Delhi), 2023 SCC OnLine SC 933: Reiterated that circumstances must be fully established (“must or should be”, not merely “may be”) and that grave suspicion cannot substitute for proof beyond reasonable doubt.
- Abdul Nassar v. State of Kerala, 2025 SCC OnLine SC 111: Held that every link in a chain of circumstantial evidence must be meticulously examined and established individually before determining whether they collectively forge an unbroken chain pointing exclusively to the guilt of the accused.
Acts and Sections
- Indian Penal Code, 1860: Sections 148, 149, 302, and 506.
- Code of Criminal Procedure, 1973: Sections 154 and 313.
- Constitution of India: Article 136.
