Orissa High Court
– vs – on 21 July, 2025
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
DSREF No.04 of 2024
From judgment and order dated 27.09.2024 passed by the
Additional Sessions Judge, Athmallik in C.T.(S) No.16 of 2018.
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State of Odisha
-Versus-
1. Prakash Behera @ Babuli
2. Nandakishore Sethi
@ Ranja ....... Condemned Prisoners/
Accused Persons
For State of Odisha: - Mr. Debashis Tripathy
Addl. Govt. Advocate
For Condemned
Prisoners/Accused: - Mr. Ramesh Ch. Maharana
Mr. Ajay Kumar Maharana
Advocate
Mr. Pradip Kumar Panda
(Amicus Curiae)
CRLA No.1166 of 2024
1. Prakash Behera
2. Nandakishore Sethi ....... Appellants
-Versus-
State of Odisha ....... Respondent
For Appellants: - Mr. Satya Ranjan Mulia
Mr. Ramesh Ch. Maharana
Advocate
For State of Odisha: - Mr. Debashis Tripathy
Addl. Govt. Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
AND
THE HONOURABLE MR. JUSTICE S.S. MISHRA
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Date of Argument: 04.07.2025 Date of Judgment: 21.07.2025
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S.K. Sahoo, J: DSREF No.04 of 2024 is the reference under section
366 of the Code of Criminal Procedure, 1973 submitted to this
Court by the learned Additional Sessions Judge, Athmallik
(hereinafter „the trial Court‟) in C.T.(S) No.16 of 2018 for
confirmation of death sentence imposed on Prakash Behera @
Babuli and Nandakishore Sethi @ Ranja (hereinafter „the
appellants‟) vide judgment and order dated 27.09.2024. CRLA
No.1166 of 2024 has been filed by appellants, namely, Prakash
Behera and Nandakishore Sethi challenging the self-same
judgment and order of conviction passed by the learned trial
Court.
The appellants faced trial for commission of offences
punishable under sections 449/302/363/364/394/201/34 of the
Indian Penal Code (hereinafter „the I.P.C.‟) read with sections 25
& 27 of the Arms Act on the accusation that on 09/10.10.2017
night, in village Gambharimaliha under Kishorenagar police
station in Angul district, they committed house trespass by
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entering into the building of Biranchi Naik (hereinafter „the
deceased‟) used as a human dwelling in order to commit offence
punishable with death i.e. robbery and murder and that they
kidnapped the said deceased from the house without his consent
so also Naba @ Ekalabya Naik (hereinafter „the deceased‟) from
lawful guardianship of his parents without their consent and that
they kidnapped/abducted both the deceased in order that they
might be murdered and that they committed robbery of the
property i.e. cash of deceased Biranchi Naik and that as such,
they caused hurt and committed murder of the three deceased
persons, namely, Biranchi Naik, his wife Tarani Naik and their
minor son Naba @ Ekalabya Naik and that knowing that the
murder of the deceased persons had been committed, caused
certain evidence of the said offence to disappear i.e. dumped the
dead body of deceased Biranchi Naik under Gambharimunda
Bridge near village Pokanda, dumped the dead body of minor
deceased Naba @ Ekalabya Naik at Bankadhar Sahi Jungle,
threw and buried the „Katuri‟ and wearing apparels in the said
jungle, as well as near Bidisingh Project Nala, with the intention
of screening themselves from legal punishment and that they
were in possession of an arm i.e. „Katuri‟ in contravention of the
provision under section 5 of the Arms Act, 1959 and they also
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used that arm to commit the crime in furtherance of their
common intention.
The learned trial Court vide impugned judgment and
order dated 27.09.2024, though acquitted the appellants of the
charges under sections 363/394/34 of the I.P.C. so also under
sections 25 and 27 of the Arms Act, but found them guilty under
sections 302/364/201/34 of I.P.C. and awarded death sentence
with direction that they shall be hanged by neck till they are
found dead and to pay a fine of Rs.1,00,000/- (rupees one lakh),
in default, to undergo R.I. for one year for the offence under
section 302 of the I.P.C. and sentenced to undergo imprisonment
for life and to pay a fine of Rs.50,000/- (rupees fifty thousand),
in default, to undergo R.I. for six months for the offence under
section 364 of the I.P.C. and sentenced to undergo imprisonment
for seven years and to pay a fine of Rs.25,000/- (rupees twenty
five thousand), in default, to undergo R.I. for two months for the
offence under section 201 of the I.P.C. with a further direction
that all the sentences are to run concurrently. However, no
finding has been given by the learned trial Court relating to the
offence under section 449/34 of the I.P.C.
Since the DSREF and CRLA arise out of the same
judgment, with the consent of learned counsel for both the
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parties, those were heard analogously and are disposed of by
this common judgment.
Prosecution Case as per F.I.R.:
2. The prosecution case, as per the first information
report (hereinafter F.I.R.) (Ext.14) lodged by P.W.9 Susant
Nayak, in short, is that the deceased Biranchi Naik was his elder
brother, deceased Tarani Naik was his sister-in-law (bhauja),
being the wife of deceased Biranchi Naik and the deceased
Ekalabya Naik was his nephew, being the son of deceased
Biranchi Naik and Tarani Naik. On 09.10.2017 night at about
8.00 p.m., the three deceased persons were present in their
house. On 10.10.2017 (Tuesday) morning at about 8.00 a.m.,
P.W.9 found the deceased Tarani Naik was lying dead in her
house premises having cut injury on her throat, however P.W.9
could not trace out his deceased brother and nephew.
One Harekrushna Nayak scribed the F.I.R. as per the
version of P.W.9 and on such written report presented before
Premananda Lenka (P.W.41), Inspector in-charge of
Kishorenagar police station, a case under section 302 of the
I.P.C. was registered against unknown person vide Kishorenagar
P.S. Case No.91 dated 10.10.2017 and P.W.41 himself took up
the investigation of the case.
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3. During the course of investigation, P.W.41 examined
the informant (P.W.9), engaged one constable to guard the dead
body of deceased Tarani Naik at village Gambharimaliha and
then he informed the fact to the S.D.P.O. and also the
Superintendent of Police over telephone for deputation of
scientific team to the spot. P.W.41 along with his staff visited the
first spot at 12.00 noon and examined some witnesses. At about
12.40 p.m., the Scientific Officer (P.W.40) arrived at the spot
along with police dog. The I.O. (P.W.41) along with the
informant (P.W.9) took the Scientific Officer (P.W.40) to the
Harada field, which was located in front of the house of deceased
Tarani Naik where the dead body of the deceased was lying in a
pool of blood with throat cut injury and P.W.9 identified the dead
body to be that of the deceased. P.W.41, the I.O. then took
P.W.40 to the house of deceased Tarani Naik where he found a
pool of blood beneath the window at outer side. P.W.41 prepared
the 1st spot map vide Ext.45 and at 1.35 p.m., seized seven
household articles in broken condition in presence of the
witnesses vide seizure list Ext.46 and examined the seizure
witnesses and recorded their statements. P.W.41 conducted
inquest over the dead body of the deceased Tarani Naik in
presence of the witnesses and prepared the inquest report
Ext.15 and examined the inquest witnesses. At spot no.1,
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P.W.41 came to know that the dead body of Biranchi Naik was
lying under the Pokanda bridge and the dead body of Naba @
Ekalabya Naik was lying at Birumund Sahi Gothamundia jungle
and accordingly, he reported the fact to his official superior over
phone. P.W.41 left four seized articles out of seven of the 1st
spot in the zima of P.W.9 by executing zimanama (Ext.16). He
dispatched the dead body of Tarani Naik through Constable to
the S.D.M.O., Athmallik with a prayer for post mortem
examination along with the dead body challan (Ext.47).
P.W.41, the I.O. then left towards Pokanda bridge
(2nd spot) along with his staff, relatives of the deceased and the
informant and before arrival at the 2nd spot, he deputed P.W.26,
a constable to guard the dead body of Biranchi Naik at the spot
and also deputed P.W.33, another constable to guard the dead
body of Naba @ Ekalabya Naik at Birimunda Sahi Gothamundia
jungle. On arrival at the 2nd spot, P.W.9 identified the dead body
of Biranchi Naik, which was lying under the bridge with throat cut
injury and there P.W.41 held inquest over the dead body of
Biranchi Naik and prepared the inquest report vide Ext.12 and
examined the inquest witnesses.
P.W.41, the I.O. then proceeded to the 3rd spot,
where he found the dead body of Naba @ Ekalabya Naik at
Birimunda Sahi, Gothamundia jungle with cut injuries on his
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throat lying near the base of Patamasu tree, which was identified
by P.W.9. Inquest was held over the dead body of the deceased
Naba @ Ekalabya Naik and inquest report vide Ext.13 was
prepared and inquest witnesses were examined. After instructing
P.W.33, the constable attached to Kishorenagar police station to
guard the dead body, P.W.41 left the 3rd spot and proceeded to
the 2nd spot with the Scientific Officer. At the 2nd spot, he found
a pool of blood at a distance of 2ft. east from the dead body of
Biranchi Naik and two blood stained plastic rope were made joint
with knot. At Pokanda bridge, P.W.41 found a big patch of blood
mark and inside the blood patch, a metallic locket was lying and
a dragging mark was extending from the blood patch towards
the edge of the bridge towards north. P.W.41 found dragging
mark over the grass and near to the blood patch over the bridge,
water pouch with remnants of food along with 180 ml. Mc Dwell
No.1 reserve whisky (empty) and use and throw tumblers were
there with alcohol smell. P.W.41 also found one piece of blood-
stained glove with red stripe lying on the pitch road and
thereafter, prepared the spot map along with crime detail form in
two sheets vide Ext.48. P.W.41 dispatched the dead body of the
deceased Biranchi Naik along with dead body challan vide Ext.49.
After dispatching the dead body of the deceased Biranchi,
P.W.41 proceeded to the 3rd spot along with the Scientific Officer,
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which was located at a distance of 12 kms. from Thakurgarh P.S.
and about 2 km away from the 2nd spot and prepared the 3rd
spot map vide Ext.50 and dispatched the dead body of Naba @
Ekalabya Naik to S.D.M.O., Athmallik through P.W.33, the
constable along with the inquest report, dead body challan vide
Ext.51. At the 3rd spot, on 10.10.1997 on production by the
Scientific Officer (P.W.40), the I.O. seized sample earth and
blood-stained earth as per seizure list Ext.29 so also some other
articles as per seizure list Ext.30 in presence of witnesses.
P.W.41 seized blood stained earth collected near the dead body
of deceased Naba @ Ekalabya Naik on being produced by P.W.40
in presence of witnesses as per seizure list Ext.31. P.W.41 also
seized two Mc Dowell‟s No.1 empty whisky bottles on being
produced by P.W.40 as per seizure list marked as Ext.32 in
presence of witnesses. P.W.41 also received the spot visit report
(Ext.43) prepared by P.W.40 and also re-examined the informant
(P.W.9) at the 3rd spot.
P.W.41, seized the wearing apparels of the deceased
Tarani Naik on production by constable in presence of witnesses
as per seizure lists vide Ext.9, Ext.33, Ext.34, Ext.35 and Ext.38,
the wearing apparels of the deceased Biranchi Naik on
production by constable in presence of the witnesses as per
seizure lists vide Ext.10, Ext.36 and Ext.37, the wearing apparels
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of the deceased Naba @ Ekalabya Naik on production by
constable in presence of witnesses as per seizure lists vide
Exts.11, 39, 40 & 41.
P.W.41 apprehended the appellant Nandakishore
Sethi from his village Gambharimaliha and then proceeded
towards the house of appellant Prakash Behera at village
Kalapatanali taking the aid of local police and on being identified
by the appellant Nandakishore Sethi, the police apprehended the
appellant Prakash Behera and searched for the incriminating
articles and found nothing from his house. Thereafter, P.W.41
took both the appellants to the 3rd spot for identification and
after reaching at the 3rd spot, both the appellants identified the
spot where the deceased Naba @ Ekalabya Naik was lying dead.
P.W.41 recorded the disclosure statement of the appellant
Prakash Behera @ Babuli in presence of the witnesses and
basing on such disclosure statement, P.W.41 seized the blood
stained Katuri (M.O.6) and one gamuchha (M.O.7) inside the
Birimunda-Gothamundia jungle as per seizure list Ext.19 and
also seized his wearing apparels i.e. shirt (M.O.1) and jean pant
(M.O.2) stained with blood digging the earth near the
Brahamanpada project under a bamboo bush as per seizure list
Ext.21. After making seizure of the recovered articles, P.W.41
kept the same in his personal custody with proper packing and
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seal and examined the seizure witnesses. Thereafter, on the
disclosure statement being made by the appellant Nandakishore
Sethi and on being led by him, P.W.41 proceeded to the 3 rd place
of recovery where in presence of the witnesses, the appellant
gave recovery of one black colour full pant (M.O.23) stained with
blood, which was seized as per seizure list Ext.1/2. P.W.41
seized one white colour half shirt (M.O.24) with red-blue-back
thin strips of appellant Nandakishore Sethi and on red colour
HERO HF Delux motor cycle bearing regd. No.OD-19-K-2022
from the house of the said appellant in presence of witnesses
and prepared the seizure list vide Ext.4. Then P.W.41 came back
to the police station along with both the appellants and the
seized articles and kept it in his custody. He arrested both the
appellants and sent them to Kishorenagar C.H.C. for collection of
their nail clippings and medical examination. After examination
of the appellants, their nail clippings were seized on being
produced by the constable as per seizure list Ext.22. The
appellants were forwarded to the Court of learned S.D.J.M.,
Athmallik through escort party. On 02.11.2017, he received the
post mortem examination report of the three deceased persons.
After examination of „Katuri‟ (M.O.6), the doctors (P.W.5, P.W.6
and P.W.12) submitted the query reports (Ext.6, Ext.8 and
Ext.56/2) to P.W.41. On 25.11.2017, P.W.41 handed over the
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charge of investigation to his successor Prativa Majhi along with
all the relevant documents and mal items. On 14.12.2017,
Prativa Majhi forwarded the mal items to S.F.S.L., Rasulgarh,
Bhubaneswar through S.D.J.M., Athmalik for chemical
examination. During her investigation, the second I.O. examined
the scribe of the F.I.R. and recorded his statement. She also
made a prayer to the District Magistrate, Angul for grant of
sanction under section 39 of the Arms Act for prosecution of the
appellants under the Arms Act and received the sanction order
vide Ext.58. The chemical examination report which includes
DNA examination and biology and serology examination was
directly received by the Court.
On completion of investigation, Prativa Majhi
submitted charge sheet on 30.01.2018 under sections
302/449/363/364/394/201/34 of the I.P.C. and sections 25/27
of the Arms Act against both the appellants.
Framing of Charge:
4. After submission of charge sheet, the case was
committed to the Court of Session after complying due
formalities. The learned trial Court framed the charges against
the appellants as aforesaid and since the appellants refuted the
charges, pleaded not guilty and claimed to be tried, the sessions
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trial procedure was resorted to prosecute them and establish
their guilt.
Prosecution Witnesses, Exhibits & Material Objects:
5. During the course of trial, in order to prove its case,
the prosecution examined as many as 41 witnesses.
P.W.1 Jitendra Kumar Pradhan and P.W.2 Prasanta
Kumar Pradhan have not supported the prosecution case as
seizure witnesses, rather they stated that nothing was seized by
police in their presence and as such they were declared hostile.
P.W.3 Babula Naik is a witness to the arrest of the
appellants by the police as per two numbers of separate arrest
memos vide Exts.2 and 3. He stated that the deceased Biranchi
was his paternal brother and around one year back, Biranchi, his
wife and son died but he did not know as to how they died.
P.W.4 Krushna Chandra Naik is a witness to the
seizure of a motorcycle, one Katuri, pant and shirt of the
appellant Nandakishore Sethi at police station as per seizure list
Ext.4. He stated that he heard from his wife that Biranchi
committed murder of his wife and one Abani Naik (P.W.18)
requested him to talk with Biranchi and thereafter, he tried to
talk with Biranchi by means of his mobile phone but Biranchi did
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not respond. He further stated that thereafter, he came to know
that the dead body of Biranchi was lying near village Pokanda
and he proceeded to the house of Biranchi and saw that the dead
body of the wife of Biranchi lying on Harada pada with cut
injuries on her throat so also other parts of her body and
thereafter, he heard that the dead body of the son of Biranchi
was lying near village Pokanda. He further stated that he
suspected that the appellant Nandakishore Sethi committed
murder of Biranchi, his wife and son due to previous political
rivalry.
P.W.5 Dr. Prajna Paramita Pradhan was working as
Assistant Surgeon attached to S.D.H., Athmallik, who conducted
post mortem examination over the dead body of deceased Naba
@ Ekalabya Naik on police requisition on 11.10.2017 and proved
her report as per Ext.5. He also examined the weapon of offence
produced by I.O. and submitted the query report vide Ext.6.
P.W.6 Dr. Anil Kumar Dey was working as O & G
Specialist attached to S.D.H., Athmallik, who conducted post
mortem examination over the dead body of deceased Biranchi
Naik on police requisition on 11.10.2017 and proved his report
as per Ext.7. He also examined the weapon of offence produced
by I.O. and submitted the query report vide Ext.8.
Page 14 of 95
P.W.7 Bibhuti Bhusan Pradhan was working as a
constable attached to Kishorenagar police station on the date of
occurrence. He is a witness to the seizure of the wearing
apparels of the deceased persons, namely, Tarani Naik, Biranchi
Naik and Ekalabya Naik as per seizure lists Exts.9, 10 and 11
respectively.
P.W.8 Agasti Nayak is a witness to the inquest over
the dead body of deceased Biranchi Naik and Naba @ Ekalabya
Naik as per inquest reports marked as Ext.12 and Ext.13
respectively.
P.W.9 Susant Nayak is the younger brother of the
deceased Biranchi Naik and informant. He is the informant in the
case. He narrated the facts as the incident unfolded on the date
of occurrence and supported the prosecution case. He is also a
witness to the inquest over the dead body of the deceased
Biranchi Naik, Naba @ Ekalabya Naik and Tarani Naik as per
inquest reports marked as Ext.12, Ext.13 and Ext.15. He took
zima of one iron almirah, two zinc boxes, one iron Alana, one
plastic suitcase and the wearing ornaments of the deceased
Tarani Naik and Ekalabya Naik from the I.O. as per zimanama
marked as Ext.16 and Ext.17 respectively.
Page 15 of 95
P.W.10 Dilip Sethy is a co-villager of the informant.
He is a witness to the inquest over the dead body of the
deceased Tarani Naik as per inquest report marked as Ext.15. He
is also a witness to the seizure of one motorcycle and one half
shirt as per seizure list marked as Ext.4.
P.W.11 Bipin Bihari Nayak is a witness before whom
the appellant Prakash Behera made his confession which is
marked as Ext.18. He is also a witness to the seizure of one
Katuri and one blood stained gamucha as per seizure list Ext.19.
P.W.12 Dr. Debasis Bhanja was working as Medicine
Specialist attached to S.D.H., Athmalik, who conducted autopsy
over the dead body of the deceased Tarani Naik and prepared his
report vide Ext.20. He also examined the weapon of offence
produced by I.O. and submitted the query report vide Ext.56/2.
P.W.13 Chanda Nayak is a witness to the preparation
of the inquest report conducted over the dead body of the
deceased Tarani Naik. She stated to have known the appellant
Nandakishore Sethi.
P.W.14 Atmaram Patra is a witness to the
preparation of the inquest report vide Ext.15 conducted over the
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dead body of the deceased Tarani Naik and stated to have known
both the appellants.
P.W.15 Israil Sahoo is the co-villager of both the
appellants. He stated about the confession of the appellants
regarding commission of crime. He is also a witness to the
seizure of a blue colour jean pant with its sticker and a cement
colour full shirt with blood stain as per seizure list marked as
Ext.21.
P.W.16 Sanjeeb Kumar Sahoo is the co-villager of
both the appellants. He stated that on the date of incident, while
he was standing at Pokanda Chhak, he saw movement of police
jeep towards Birimunda-Gothamunda Jungle and he followed the
police jeep. He further stated that prior to his arrival, police jeep
had already reached at the spot and the appellants were moving
ahead of the police towards the cultivable land of one Bairagi
Nayak. He further stated that appellant Prakash Behera gave
recovery of one blood stained Katuri and one blood stained
gamucha from a bush and gave it to the police.
P.W.17 Shanti Nayak was a member of Maa
Maheswar SSG group. She stated that deceased Biranchi Naik
took hand loan from them along with other six persons to
purchase one Pick up van and the three deceased persons were
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murdered by appellant Ranja Sethy to take away the cash which
the deceased Biranchi Naik had received to purchase a Pick up
van.
P.W.18 Abani Nayak did not support the prosecution
case, for which she was declared hostile by the prosecution.
P.W.19 Kumari Nayak stated that after arrival of the
police, she moved to the spot and found the dead body of
deceased Tarani Naik lying in front of the house with cutting of
throat. She further stated that after arrival of police, both the
appellants confessed their guilt that they had killed all the three
deceased persons.
P.W.20 Sasmita Nayak stated in similar manner like
P.W.19 to have moved to the spot and found the dead body of
deceased Tarani Naik lying in front of the house with cutting of
throat.
P.W.21 Santosh Majhi is a witness to the inquest
report (Ext.15) conducted over the dead body of the deceased
Tarani Naik.
P.W.22 Suramani Nayak is a witness to the inquest
reports conducted over the dead body of the deceased Tarani
Naik, Naba @ Ekalabaya Naik and Biranchi Naik as per Exts.15,
13 and 12 respectively.
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P.W.23 Gobardhan Dehury and P.W.25 Amruti
Pradhan were the constables attached to Kishorenagar police
station and also witnesses to the seizure of two glass bottles in
which nail clippings of both the appellants were kept as per
seizure list Ext.22.
P.W.24 Maharga Nayak is a witness to the inquest
reports conducted over the dead bodies of deceased Biranchi
Naik and Naba @ Ekalabaya Naik as per inquest reports marked
as Exts.12 and 13 respectively.
P.W.26 Rashmiranjan Bagh was the constable
attached to Kishorenagar police station, who stated that the
I.I.C. issued one command certificate to guard the dead bodies
of the deceased Biranchi Naik and his son as per Ext.23. He
further stated that after completion of post mortem of deceased
Biranchi Naik, he handed over the wearing apparels of the
deceased Biranchi Naik to P.W.41, who seized the same as per
seizure list vide Ext.10. He also received the nail clippings of
both the appellants from Kishorenagar hospital and handed over
the same to P.W.41, which was seized as per seizure list Ext.22.
P.W.27 Abhimanyu Nayak is a co-villager of the
deceased. He has not supported the prosecution case for which
he declared hostile by the prosecution.
Page 19 of 95
P.W.28 Soumitri Nayak is the wife of the informant
and sister-in-law of the deceased Biranchi. She stated that the
incident took place on 09.10.2017 night and on 10.10.2017
morning after hearing about the incident from two boys of his
village about the death of deceased Tarani Naik (bada jaa) and
that her dead body was lying inside a harada kiari, she moved to
the spot and found blood stains near the side window and her
sister-in-law was lying dead there. She further stated that after
entering into the house, she saw that the godrej almirah, boxes
were broken and in open condition and the deceased Biranchi
and Ekalabya were not present in the house and she also heard
that the deceased Biranchi and Ekalabya were killed somewhere
inside the Thakurgarh locality. She further stated that prior to
the incident, the deceased Biranchi had withdrawn cash of
Rs.1.75 lakh from Maa Maheswari SHG group of village
Gambharimalia to purchase a Pickup van for his business and the
appellant Nandakishore Sethi was asking the deceased Biranchi
whether he had withdrawn money from Maa Maheswari SHG
group. She further stated that appellant Nandakishore Sethi
might have killed all the three deceased for money.
P.W.29 Madan Mohan Nayak is a co-villager of the
deceased Biranchi. He stated that on 10.10.2017 morning at
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about 9.00 a.m., while he was at Sanjamura, he got information
regarding murder of Tarani Naik and after coming to his village,
he came to the spot and found the dead body of Tarani Naik was
lying in the harada taila of one Gandhara Sethi and when he
entered into the house of deceased Biranchi, he found blood on
the floor near the window and also found damage of almirah,
Alana, boxes and then he got information that the dead body of
deceased Biranchi was lying under the bridge of village Pokonda
and the dead body of deceased Ekalabya was lying at the side of
Birimunda jungle of Birimunda sahi. He further stated that
appellant Nandakishore Sethi told to him that he would see if his
mother got defeated in the panchayat election. He further stated
that the deceased Biranchi had taken loan of Rs.1,75,000/- from
SHG group of village Gambharimalia to purchase of pick up van
in order to increase his business and since there was monetary
transaction, he suspected both the appellants for commission of
murder of deceased.
P.W.30 Kumar Nayak is an independent witness
stated to have known only the appellant Prakash Behera. He
stated that the incident took place on 10.10.2017 and the
murder was detected under Pokanda bridge and another at
Birimunda Gothamundia jungle and that Biranchi Naik, his son
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along with his wife were murdered by both the appellants and
the dead body of deceased Biranchi Naik was lying under the
Pokanda bridge and his throat was cut and the son of deceased
Biranchi Naik was lying dead at Birimunda Gothamundia jungle
and his throat was also cut. He further stated to be a witness to
the appellant Prakash Behera giving recovery of one blood
stained Katuri (M.O.6) and one gamuchha (M.O.7) which were
kept in hiding under a bamboo bush.
P.W.31 Achyuttananda Nayak stated to have got
information on 10.10.2017 that a dead body was lying under the
Pokanda bridge with throat cut injury and at Birimunda
Gothamundia jungle under Katamasu tree, a boy aged about
seven years was lying dead with throat cut injury and he also
received information on 12.10.2017 that both the appellants had
committed the murder.
P.W.32 Sanjaya Nayak stated that he along with
Bairagi and Santan Nayak had been to grazing cattle and while
they allowed their cattle to drink water at Birimunda, they found
a child aged about five years had been killed by cutting his
throat and was lying dead and was wearing one half pant and
half shirt. He further stated that seeing the furious situation, he
called P.W.31.
Page 22 of 95
P.W.33 Saroj Kumar Nayak was the constable
attached to Kishorenagar police station, who stated that P.W.41
issued a command certificate to guard the dead body of
deceased Naba @ Ekalabya which was lying at Birimunda jungle
vide Ext.24. He further stated that after issuance of command
certificate, he proceeded to the spot and guarded the dead body
of the deceased Naba @ Ekalabya at Birimunda forest and he
took the dead body of the deceased to S.D.H., Athmallik for post
mortem examination. He further stated that after the post
mortem examination, the dead body of the deceased Naba @
Ekalabya was handed over to his paternal uncle and he took the
wearing apparels of the deceased Naba @ Ekalabya along with
Bala and suta and handed over the same to P.W.41, who seized
the same as per seizure list vide Ext.11.
P.W.34 Samarendra Kumar Sethi was the Branch
Manager, S.B.I., Dimirimunda Kishorenagar Branch, who stated
that he had provided the bank account details of the deceased
Biranchi Naik to the I.O. (P.W.41) with seal and signature of
Branch Manager vide Ext.26 and on 09.10.2017, the deceased
Biranchi Naik had deposited a cash of Rs.1,00,000/- in his
account and the total balance of the said account was
Rs.1,20,520/-.
Page 23 of 95
P.W.35 Girish Chandra Nayak is a witness to the
confessional statement of the appellants vide Ext.18. He is also a
witness to the seizure of offensive weapon and the blood stained
cloth as per seizure list vide Ext.19.
P.W.36 Subarna Pradhan was residing in the house
of deceased Biranchi Naik and she stated to have noticed the
dead body of Tarini Naik lying inside harada kiari with throat cut
injury on 10.10.2017 morning. She stated that on 07.10.2017,
the appellant Nandakishore Sethi came to the house of deceased
Biranchi Naik and enquired from the deceased about the loan
amount that he received from Arnapurna Group to which the
deceased replied to have kept it with one of the members of
Arnapurna Group. She further stated that on 09.10.2007, the
appellant Nandakishore Sethi came to the house of deceased
Biranchi Naik and asked deceased Tarini Naik about the
deceased Biranchi purchasing motor cycle after receipt of money,
but deceased Tarini Naik pleaded her ignorance about the same.
She further stated about the political enmity between the
appellant Nandakishore Sethi and deceased Biranchi Naik.
P.W.37 Girish Kumar Sahoo, who was the grocery
shop owner at Thakurgarh, stated that both the appellants along
with deceased Biranchi had come to the counter of foreign liquor
Page 24 of 95
shop which was near his grocery shop and purchased liquor and
then they came to his shop to purchase water pouch, three use
and throw glasses and mixture and consumed liquor and stayed
at his shop for about 10 to 12 minutes. He further stated that
the appellants were asking the deceased to go Kalapatanalai to
see a melody as the melody was not good at Thakurgarh and
then all the three persons moved in a red colour motor cycle. He
further stated that on the next day, he had seen a video in his
shop that deceased Biranchi had been murdered and after two
days of the incident, he found the image of the two appellants,
which he had seen in the viral video.
P.W.38 Parto Oram was the A.S.I. of Police attached
to Kishorenagar police station, who is a witness to the seizure of
seizure lists Ext.9, Ext.10, Ext.11, Ext.29, Ext.30, Ext.31 and
Ext.32.
P.W.39 Bhabini Nayak is a hearsay witness, who
heard about the murder of three deceased.
P.W.40 Prasanta Kumar Pradhan was the Scientific
Officer attached to DFSL, Dhenkanal and he was the in-charge of
Angul district at the time of incident and on the direction of the
S.D.P.O., Athmallik, he proceeded to the three different spots
and prepared the spot visit report vide Ext.43 and handed over
Page 25 of 95
the same to the I.O. (P.W.41). He also produced the collected
materials from three spots before P.W.41, who seized the same
as per seizure lists vide Exts.29, 30, 31 and 32.
P.W.41 Premananda Lenka was posted as the
Inspector-in-Charge of Kishorenagar police station and he is the
Investigating Officer of the case, who investigated the case after
registering the F.I.R. on 10.10.2017 and handed over the charge
of investigation to his successor Prativa Majhi on 25.11.2017,
who in turn submitted charge sheet.
The prosecution has proved 62 numbers of exhibits.
Ext.1/2 is the seizure list of black colour full pant, Exts.2 & 3 are
the arrest memos of both the appellants, Ext.4 is the seizure list
of a motorcycle, one Katuri, pant and shirt of the appellant Ranja
@ Nandakishore, Ext.5 is the post-mortem report of the
deceased Naba @ Ekalabya Naik, Ext.6 is the query report of
P.W.5, Ext.7 is the post-mortem report of the deceased Biranchi
Naik, Ext.8 is the query report of P.W.6, Ext.9 is the seizure list
of wearing apparels of the deceased Tarani Naik, Ext.10 is the
seizure list of wearing apparels of the deceased Biranchi Naik,
Ext.11 is the seizure list of wearing apparels of the deceased
Naba @ Ekalabya Naik, Exts.12, 13 and 15 are the inquest
reports of the deceased Biranchi Naik, Naba @ Ekalabya Naik
Page 26 of 95
and Tarani Naik respectively, Ext.14 is the F.I.R., Exts.16 & 17
are the zimanama, Ext.18 is the confessional statement of the
appellant Prakash Behera, Ext.19 is the seizure list of chopper
and one blood stained towel, Ext.20 is the post-mortem report of
the deceased Tarani Naik, Ext.21 is the seizure list of a blue
colour jean pant and a cement colour full shift with blood stain,
Ext.22 is the seizure list of nail clipping of the appellants,
Exts.23, 24 and 42 are the command certificates, Exts.25, 49
and 51 are the dead body challans, Ext.26 is the account details
of deceased Biranchi, Exts.27 and 28 are the paper slips,
Exts.29, 30, 31 and 32 are the seizure lists, Exts.33, 34, 35, 36,
37, 38, 39, 40 and 41 are the sticker on sealed packets, Exts.43
is the spot visit report, Exts.45, 48 and 50 are the spot maps,
Ext.46 is the seizure list of seven numbers of house hold articles
in broken condition, Ext.47 is the dead body challan of Tarani
Naik, Ext.52 is the sticker on M.O.2, Ext.53 is the paper slip on
M.O.1, Ext.54 is the paper slip on M.O.23, Ext.55 is the paper on
M.O.24, Ext.56/2 is the query report of P.W.12, Ext.57 is the
forwarding report of mal item, Ext.58 is the sanction order,
Ext.59 is the S.F.S.L. report, Ext.60 is the portion of 161
statement of P.W.1, Ext.61 is the portion of 161 statement of
P.W.2 and Ext.62 is the portion of 161 statement of P.W.18.
Page 27 of 95
The prosecution also proved 24 material objects.
M.O.1 is the blood stain shirt, M.O.2 is the jean pant, M.O.3 is
the jean pant of deceased Biranchi Naik, M.O.4 is the chadi of
deceased Biranchi Naik, M.O.5 is the ganji of deceased Biranchi
Naik, M.O.6 is the Katuri, M.O.7 is the gamucha, M.O.8 is the
half pant of deceased, M.O.9 is the half shirt of deceased,
M.O.10 is the red colour suta, M.O.11 is the blood stained saree
of deceased Tarani Naik, M.O.12 is the blood stained saya of
deceased Tarani Naik, M.O.13 is the blood stained blouse of
deceased Tarani Naik, M.O.14 is the gloves, M.O.15 is the paper
envelope containing signature of S.O., D.F.S.L., M.O.16 is the
blood stained locket, M.O.17 is the plastic rope, M.O.18 is the
plastic rope, M.O.19 is the paper envelope containing signature
of P.W.40, M.O.20 is the paper envelope containing signature of
P.W.40 (blood stained earth), M.O.21 is the paper envelope
containing signature of P.W.40, M.O.22 is the sample earth,
M.O.23 is the black colour pant of appellant Nandakishor Sethi
and M.O.24 is the shirt of appellant Nandakishor Sethi.
Defence Plea:
6. The defence plea of the appellant Prakash Behera is
that he has been falsely implicated by the Thakurgarh police
after taking his signatures on some blank papers and the
Page 28 of 95
defence plea of the appellant Nandakishore Sethi is that he has
been falsely implicated in this case without his involvement.
The appellant Nandakishore Sethi examined himself
as D.W.1 and stated that he had never given recovery of any
incriminating material to the police during the investigation and
that the I.O. had never recorded his statement rather he had
taken his signatures on blank papers.
Findings of the Trial Court:
7. The learned trial Court on the basis of the inquest
reports Ext.12, 13 and 15, the evidence of the three doctors, i.e.
P.W.5, P.W.6 & P.W.12, who conducted postmortem examination
over the three dead bodies and postmortem reports findings vide
Ext.5, Ext.7 & Ext.20 came to hold that the three deceased died
homicidal death. Taking into account the last seen of the
deceased in the company of the appellants, leading to discovery
of the weapon and other incriminating articles at the instance of
the appellants and the D.N.A. report findings coupled with the
evidence of Scientific Officer, came to hold that there are
following circumstances on record against the appellants:
(i) Motive of appellants to grab huge loan amount
from deceased Biranchi Naik;
Page 29 of 95
(ii) Preparation to call deceased Biranchi Naik for
melody;
(iii) Purchase of liquor, water pouch and mixture
for the commission of murder;
(iv) No explanation by the appellants for last seen
with the deceased Biranchi Naik on 09.10.2017
(Monday at 9 p.m. to 9.30 p.m.);
(v) Taking deceased Biranchi Naik to Kalapatanali
to see melody as the melody of Thakurgarh is not
good;
(vi) Dead body of deceased Biranchi Naik found
near the Pokanda bridge which comes on the way
from grocery shop to kalapatanali;
(vii) Blood stains found on the katuri (M.O.6) is of
human origin of deceased Naba @ Ekalabya Naik;
(viii) Blood stains found on cut piece of shirt of
deceased Naba @ Ekalabaya Naik matched with
blood stains found in the napkin of appellant Prakash
Behera;
(ix) Blood stains found in cut piece of banian of
deceased Biranchi Naik matched with blood stains
Page 30 of 95
found in cut piece of full pant of appellant Naba
Kishore Sethi.
The learned trial Court discussed the evidence
available on record with respect to the offence of house trespass
and commission of robbery and came to hold that the
prosecution has failed to establish the fact of house trespass and
commission of robbery by the appellants in the house of the
deceased Biranchi Naik. With respect to the charge of kidnapping
and abduction, the learned trial Court held that so far as
deceased Biranchi Naik is concerned, the fact of abduction could
not be proved. However, so far as kidnapping of the deceased
Naba @ Ekalabya Naik is concerned, from the circumstantial
evidence, the prosecution has proved that he was kidnapped
from the lawful custody of his parents and subsequently his
murder was committed inside the jungle.
With regard to the charge under section 201 of
I.P.C., the learned trial Court relying on the confessional
statement of the appellants recorded under section 27 of the
Evidence Act that after commission of crime, they took steps to
hide the incriminating weapon i.e. „katuri‟ and their blood stained
clothes in order to destroy the prosecution evidence and also
considering the circumstantial evidence, came to hold that the
Page 31 of 95
appellants had taken steps for disappearance of prosecution
evidence in order to protect themselves from the criminal
liabilities.
With regard to the charges under sections 25 and 27
of the Arms Act, the learned trial Court came to the conclusion
that since the weapon of offence i.e. katuri (M.O.6) is neither
coming under the definition of firearm and ammunition as
defined under section 2(b) of the Arms act, no license is
necessary for keeping a katuri and thereby, held that the
prosecution failed to prove its case under sections 25 and 27 of
the Arms Act.
Accordingly, the learned trial Court while holding the
appellants not guilty under section 363/394/34 of I.P.C. and
sections 25 & 27 of the Arms Act, found them guilty under
section 302/364/201/34 of I.P.C.
On the question of sentence, the learned trial Court
has held that since it is a case of triple murder which comes
under the purview of rarest of rare case, death sentence is the
only punishment, which would justify the magnitude of the
offence committed by the appellants and accordingly awarded
the sentences as aforesaid.
Page 32 of 95
Submission of Parties:
8. Mr. Satya Ranjan Mulia, learned counsel appearing
for the condemned prisoners/appellants in DSREF No.04 of 2024
and CRLA No.1166 of 2024 being assisted by Mr. Ramesh
Chandra Maharana, Advocate and learned Amicus Curiae Mr.
Pradip Kumar Panda contended that the case is based on
circumstantial evidence and the main circumstances are the last
seen of the deceased Biranchi Naik in the company of the two
appellants in the night of occurrence as deposed to by P.W.37,
D.N.A. test findings and leading to discovery of the weapon and
other incriminating articles at the instance of the appellants. He
argued that the evidence of P.W.37 relating to the last seen
should not be accepted as it is contrary to his previous statement
made before the I.O. There was no prior acquaintance of P.W.37
either with the deceased Biranchi Naik or appellant no.2
Nandakishore Sethi and therefore, when no test identification
parade has been conducted with respect to the appellant no.2,
the first time identification of appellant no.2 in Court by P.W.37
after a long gap of almost six years is very difficult to be
accepted. He further argued that the articles which were seized
at the instance of the appellants were lying in open spaces,
which were accessible to all and moreover, there is lack of
evidence about its safe custody after those were seized till the
Page 33 of 95
same were produced after two months in Court and sent to the
Forensic Science Laboratory through Court. It was further argued
that the DNA test report was prepared by one Suchismita
Behera, S.O. and A.C.E., but she has not been examined to
prove the report and it was marked through the Investigating
Officer (P.W.41) and therefore, the DNA test report findings
should be taken out of consideration. It is further argued that
the motive behind the commission of crime has also not been
proved by the prosecution inasmuch as so far as the commission
of robbery of cash of the deceased Biranchi Naik being one of the
motives has been disbelieved by the learned trial Court and
there is no clinching evidence relating to the second motive i.e.
political hostility between the parties and since in a case of
circumstantial evidence, the motive assumes pertinent
significance, it cannot be said that the chain of circumstances is
so complete that it unerringly points towards the guilt of the
appellants. It is further argued that the investigation has been
conducted in a perfunctory manner and there are omissions and
lapses on the part of the investigating agency and therefore, it is
a fit case where benefit of doubt should be given in favour of the
appellants. He further argued that in respect of the deceased
Tarini Naik and Naba @ Ekalabya Naik, except the DNA test
report findings which relates to genetic profile generated from
Page 34 of 95
cut piece from the shirt of deceased Naba @ Ekalabya Naik
matching with genetic profile generated from napkin of appellant
Prakash Behera, there is no other evidence and therefore, the
learned trial Court erred in holding the appellants guilty for
commission of murder of the three deceased persons and
awarding death sentence to them that too without following the
due procedure as laid down by the Hon‟ble Supreme Court in
calling for the reports from the different authorities and giving
opportunity to the appellants to produce the mitigating
circumstances before awarding the death sentence. He placed
reliance in the cases of Nandu Singh -Vrs.- State of Madhya
Pradesh (Now Chhattisgarh) reported in (2022) 19
Supreme Court Cases 301, Shankar -Vrs.- State of
Maharashtra reported in (2023) 19 Supreme Court Cases
553, Subash Aggarwal -Vrs.- State of NCT of Delhi
reported in 2025 SCC OnLine SC 808, Karandeep Sharma
alias Razia alias Raju -Vrs.- State of Uttarakhand reported
in 2025 SCC OnLine 773, Rahul -Vrs.- State of Delhi and
another reported in (2023) 1 Supreme Court Cases 83,
Allarakha Habib Memon and others -Vrs.- State of Gujarat
reported in (2024) 9 Supreme Court Cases 546 and Sinic
Patricia -Vrs.- State of Orissa reported in (1994) 7 Orissa
Criminal Reports 277.
Page 35 of 95
9. Mr. Debashis Tripathy, learned Addl. Government
Advocate, on the other hand, supported the impugned judgment
and argued that the last seen evidence as adduced by P.W.37
has not been shaken in the cross-examination and no
explanation has been given by the appellants in their accused
statements as to how the deceased Biranchi died a homicidal
death when he was last seen alive in their company. He further
argued that in view of the political hostility, the motive part has
also been proved satisfactorily. The learned counsel further
argued that the DNA test report has been marked on admission
and it has been proved through the I.O. (P.W.41) and specific
questions relating to the findings of the DNA test report have
been put to the appellants in their accused statements but they
have not satisfactorily explained the same and as such the
learned trial Court is quite justified in relying upon the same. It
was further argued that on the basis of the disclosure statement
made by the appellants, the incriminating articles including the
weapon were seized and it was kept in safe custody by the I.O.,
which has not challenged by the defence and therefore, the
learned trial Court has rightly relied upon the leading to
discovery evidence. He further argued that deficiencies in
investigation on the part of the investigating officer cannot be a
ground for total rejection of the prosecution case. He vehemently
Page 36 of 95
argued that if the circumstances are taken together, it clearly
establish the charges under which the appellants were found
guilty and since it is a case of triple murder of one family which
includes a minor child aged about seven years, therefore, the
learned trial Court is quite justified in holding that it is a rarest of
rare case and awarding death sentence for the heinous and
gruesome murders after hearing the appellants on the question
of sentence and therefore, it is not a fit case to interfere with the
impugned judgment and accordingly, the death reference should
be answered in affirmative and the criminal appeal should be
dismissed. He placed reliance in the case of Sheo Shankar
Singh -Vrs.- State of Jharkhand reported in (2011) 49
Orissa Criminal Reports (SC) 485.
Whether the prosecution has proved the homicidal death
of three deceased?:
10. Adverting to the contentions raised by the learned
counsel for the respective parties, let us first examine the
evidence on record as to how far the prosecution has proved that
the three deceased Biranchi Naik, Tarani Naik and Naba @
Ekalabya Naik met with homicidal death.
Apart from the inquest reports of the three deceased
persons proved by the I.O. (P.W.41) vide Ext.12 relating to
Page 37 of 95
deceased Biranchi Naik, Ext.15 relating to deceased Tarani Naik,
and Ext.13 relating to deceased Naba @ Ekalabya Naik, the
evidence of the three doctors, who conducted postmortem
examination over the cadaver of the three deceased are very
much relevant for this purpose.
P.W.6 Dr. Anil Kumar Roy conducted autopsy over
the dead body of deceased Biranchi Naik in S.D.H., Athmallik on
11.10.2017 and noticed the following external injuries & internal
injuries:
(i) Deep Throat cut injury over front of the neck
including cot of esophagus, bronchus, vital
vessels i.e. arteries and veins, neck muscle
steroid muscle;
(ii) Four chop cut injuries back of the neck of
size 6cm x 4cm x 3cm, 6cm x 4cm x 3cm, 5cm
x 4cm x 3cm and 5cm x 3cm x 3cm
respectively.
On dissection, he found abdomen filled with gas and
all internal organs were intact and congested. He opined that the
death was due to deep sharp cut injury of throat, the death was
homicidal and ante mortem in nature, the injuries were caused
by sharp and hard object and the time since death from the time
of postmortem examination was within 24 hours to 36 hours.
The postmortem report has been marked as Ext.7.
Page 38 of 95
No question has been put by the learned defense
counsel to P.W.6 relating to the findings in Ext.7 and as such the
findings have remained unchallenged.
P.W.12 Dr. Debasis Bhanja conducted autopsy over
the dead body of deceased Tarani Naik in S.D.H., Athmallik on
11.10.2017 and noticed the following external injuries and
internal injuries:
External Injuries:
i. Incised cut injury of size 9cm x 5cm x 2cm
over front part of neck extending from right to
left;
ii. Incised wound behind right ring finger of size
3cm x 2cm x 1cm;
iii. Incised wound of size 2cm x 1cm x 0.5cm
over backside of left index finger;
iv. Incised wound of size 7cm x 5cm x 2cm over
right thigh.
Internal Injuries:
(i) Cut of esophagus, bronchus, neck vessel,
neck muscle, sterncleit muscle;
(ii) Maggot present in cut injury of throat;
(iii) Abdomen filled with gas;
(iv) All internal organs are intact and congested.
Page 39 of 95
All the injuries were opined to be ante mortem in
nature. The death was caused due to deep sharp cut injury of
throat. The nature of death was homicidal. The time since death
was within 24 to 36 hours. He opined that the injuries were
sufficient to cause the death of a human being. The postmortem
report has been marked as Ext.20.
No question has been put by the learned defense
counsel to P.W.12 relating to the findings in Ext.20 and as such
the findings have remained unchallenged.
P.W.5 Dr. Prajna Paramita Pradhan conducted
autopsy over the dead body of deceased Naba @ Ekalabya Naik
in S.D.H., Athmallik on 11.10.2017 and noticed the following
external injuries and internal injuries:
(i) A deep throat cut injury in front of the
neck, from right to left ear was present, which
measures 10cm x 7cm x 7cm;
(ii) The esophagus, bronchus and all vital
arteries and veins were cut;
(iii) Abdomen is filled with gas;
(iv) All internal organs were intact and
congested;
(v) Maggots were found on the injuries on
throat and nostrils.
Page 40 of 95
She opined that the cause of death was due to deep
sharp cut injury of throat and that the death was homicidal in
nature and the injury was ante mortem in nature. The injury on
neck might have caused by sharp and hard object. The time
since death to the time of examination was approximately 24
hours to 36 hours. The postmortem report has been marked as
Ext.5.
No questions have been put by the learned defense
counsel to P.W.5 relating to the findings in Ext.5 and as such the
findings have remained unchallenged.
Thus, from the inquest reports, postmortem reports
and the evidence of the doctors coupled with the other evidence
on record, it has been proved that all the three deceased met
with homicidal death which is also not disputed by the learned
counsel for the appellants. As such, the prosecution has proved
the homicidal death of all the three deceased.
Principle for appreciating the case based on
circumstantial evidence:
11. There is no dispute that there is no direct evidence
as to who committed the murder of the three deceased persons
and how. The prosecution case hinges on circumstantial
evidence. It is well established rule of criminal justice that fouler
Page 41 of 95
the crime, the higher should be the degree of proof. A moral
opinion howsoever strong or genuine cannot be a substitute for
legal proof. When a case is based on circumstantial evidence, a
very careful, cautious and meticulous scrutinization of the
evidence is necessary.
In the case of Sharad Birdhichand Sarada -Vrs.-
State of Maharashtra reported in A.I.R. 1984 SC 1622, it is
held that the circumstances from which the conclusion of guilt is
to be drawn against an accused should be fully established. The
facts so established should be consistent with the hypothesis of
the guilt of the accused and they should not be explainable on
any other hypothesis except that the accused is guilty. The
circumstances should be of conclusive nature and tendency.
They should exclude every possible hypothesis except the one to
be proved. There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show in all human
probabilities that the act must have been done by the accused.
These five golden principles for appreciation of a case based on
circumstantial evidence have been named as „Panchsheel‟. In the
case of Gambhir -Vrs.- State of Maharashtra reported in
A.I.R. 1982 S.C. 1157, the Hon‟ble Supreme Court held that
Page 42 of 95
the circumstantial evidence should not only be consistent with
the guilt of the accused but should be inconsistent with his
innocence. In the case of Jaharlal Das -Vrs- State of Odisha
reported in (1991) 4 Orissa Criminal Reports (SC) 278, the
Hon‟ble Supreme Court held that it is to be borne in mind as a
caution that in cases depending largely upon circumstantial
evidence, there is always a danger that the conjecture or
suspicion may take the place of proof and such suspicion
howsoever strong cannot be allowed to take the place of proof.
The Court has to watchful and ensure that conjectures and
suspicions do not take the place of legal proof. The Court must
satisfy itself that the various circumstances in the chain of
evidence should be established clearly and that the completed
chain must be such as to rule out a reasonable likelihood of the
innocence of the accused.
In the light of legal principle about the circumstantial
evidence, it is to be examined as to whether the circumstantial
evidence in the instant case satisfies the requirement of law. Out
of the circumstances enumerated by the learned trial Court, we
will first discuss about the motive on the part of the appellants to
commit the crime.
Page 43 of 95
Motive:
12. The prosecution has adduced two motives on the part
of the appellants to commit the murder of the deceased Biranchi
Naik. The first motive is that the deceased had availed huge loan
amount from the Arnapurna Group and for committing robbery of
such amount, the crime was committed. The second one is that
there was political hostility between the parties.
The learned trial Court has disbelieved the charge of
robbery against the appellants which is not challenged by the
State.
The learned counsel for the State Mr. Tripathy fairly
submitted that so far as the first motive is concerned, there is no
clinching evidence on record.
Coming to the political hostility between the parties,
P.W.36 has stated that during the Panchyat election of the year
2017, the mother of appellant Nandakishore Sethi was
contesting for the post of Sarpanch and wife of Dillip (P.W.10)
was also contesting for the said post. During the election
campaigning, the deceased Biranchi was supporting wife of
P.W.10, who won the election and mother of Nandakishore Sethi
got defeated. He further stated that for the said political reason,
Page 44 of 95
there was enmity between the appellant Nandakishore Sethi and
deceased Biranchi Naik.
P.W.10 is totally silent that his wife was contesting
the election against the mother of appellant Nandakishore Sethi
for the post of Sarpanch and won the election. On the other
hand, P.W.9, the younger brother of deceased has stated that
the mother of appellant Nandakishore Sethi was contesting for
the post of Ward Member and the wife of P.W.10 was also
contesting for the said post and the mother of the appellant got
defeated for which the appellant had enmity with his deceased
brother. Thus, there are discrepancies in the evidence of
witnesses as to for which post, the mother of the appellant
Nandakishore Sethi was contesting the election, whether it was
for the post of Sarpanch as stated by P.W.36 or for the post of
Ward Member as stated by P.W.9. Wife of P.W.10 has not been
examined by the prosecution to clarify on this aspect.
In a case of circumstantial evidence, motive has an
important role to play. It is an important link in the chain of
circumstances. (Ref: Indrajit Das -Vrs.- State of Tripura :
(2023) 18 Supreme Court Cases 506). In a case based on
circumstantial evidence, motive assumes great significance
inasmuch as its existence is an enlightening factor in a process
Page 45 of 95
of presumptive reasoning. (Ref: Sukhram -Vrs.- State of
Maharashtra : (2007) 7 Supreme Court Cases 502). Motive
for commission of offence no doubt assumes greater importance
in cases resting on circumstantial evidence than those in which
direct evidence regarding commission of offence is available. It is
equally true that failure to prove motive in cases resting on
circumstantial evidence is not fatal by itself. However, it is also
well settled and it is trite in law that absence of motive could be
a missing link of incriminating circumstances, but once the
prosecution has established the other incriminating
circumstances to its entirety, absence of motive will not give any
benefit to the accused. (Ref: Ramchand -Vrs.- State of U.P. :
(2023) 16 Supreme Court Cases 510). In the case of
Shankar (supra), it is held that just like complete absence of
motive, failure to establish motive after attributing one, should
also give a different complexion in a case based on
circumstantial evidence and it will certainly enfeeble the case of
prosecution. In the case of Subash Aggarwal (supra), it is held
that motive remains hidden in the inner recesses of the mind of
the perpetrator, which cannot, oftener than ever, be ferreted out
by the investigation agency. Though in a case of circumstantial
evidence, the complete absence of motive would weigh in favour
of the accused, it cannot be declared as a general proposition of
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universal application that, in the absence of motive, the entire
inculpatory circumstances should be ignored and the accused
acquitted. In the case of Nandu Singh (supra), it is held that in
a case based on circumstantial evidence, motive assumes great
significance. It is not as if motive alone becomes the crucial link
in the case to be established by the prosecution and in its
absence, the case of prosecution must be discarded. But, at the
same time, complete absence of motive assumes a different
complexion and such absence definitely weighs in favour of the
accused.
In view of the foregoing discussions, we are of the
view that the prosecution has failed to establish any of the two
motive on the part of the appellants to commit the crime by
adducing clinching evidence and therefore, we have to scrutinize
the materials available on record carefully to see as to how far
the prosecution has satisfactorily proved the other incriminating
circumstances and whether the chain of circumstances is so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the appellants and it
is consistent with the only conclusion of guilt of the appellants.
The chain of circumstantial evidence is essentially meant to
enable the Court in drawing an inference and thus the task of
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fixing criminal liability upon a person on the strength of an
inference must be approached with abandoned caution.
Last seen evidence:
13. The learned trial Court while jotting down the
circumstances available on record against the appellants has
mentioned about the preparation on the part of the appellants to
call the deceased Biranchi for melody, purchase of liquor, water
pouch and mixture for the commission of murder, non-
explanation by the appellants for last seen with the deceased
Biranchi on 09.10.2017 (Monday) at 09.00 p.m. to 09.30 p.m.,
taking of the deceased Biranchi to Kalapatanali to see the
melody as melody of Thakurgarh was not good and that the dead
body of Biranchi was found near Pokanda bridge which comes on
the way from grocery shop of P.W.37 to Kalapatanali. All these
circumstances can be discussed under one heading i.e. „last seen
evidence‟.
It is the prosecution case that the deceased Biranchi
Naik was last seen alive in the company of both the appellants.
In order to prove this circumstance, the prosecution has
examined P.W.37 Girish Kumar Sahoo. P.W.37 is a resident of
village Thakurgarh and he has stated that he was running a
grocery shop at Thakurgarh near a foreign liquor shop and that
Page 48 of 95
on 09.10.2017 (Monday) at about 9.00 p.m. to 9.30 p.m., the
appellants along with the deceased Biranchi came to the counter
of foreign liquor shop, purchased liquor and then came to his
shop to purchase water pouch, three use and throw glasses and
mixture. He further stated that they consumed liquor in front of
him and stayed in his shop for 10 to 12 minutes and at that time
they were asking the deceased to go to Kalapatanalai to see
melody party as the melody in village Thakurgarh was not good
and then they moved together in a red color motor cycle. He
further stated that on the next day, there was a viral news
through mobile phone that the deceased Biranchi had been
murdered and after two days of the occurrence, he could find the
image of the appellants whose news was viral through the mobile
phone and as such he could identify the appellants along with
the deceased from the viral video. He stated that Pokanda bridge
comes on the way to Kalapatanalai.
In the cross-examination, P.W.37 has stated that he
had got no prior acquaintance with the appellant Nandakishore
Sethi so also with the deceased Biranchi. He knew the appellant
Prakash Behera prior to the occurrence as he had a furniture
shop at Thakurgarh market.
Page 49 of 95
Though, according to this witness (P.W.37), he came
to know about the murder of the deceased Biranchi Naik through
viral news on the next day so also saw the image of the
appellants in viral news two days after the occurrence, but he did
not came forward to give his statement before police
immediately and his statement under section 161 Cr.P.C. was
recorded by the I.O. only on 17.11.2017, which was more than a
month after the occurrence. He has not stated to have disclosed
before anyone to have seen the appellants in the company of the
deceased in his grocery shop in the night on 09.10.2017.
P.W.41, the I.O. has stated he examined P.W.37 on
17.11.2017 and further stated that as the shop of P.W.37 was
found closed during his repeated visit in connection with
investigation, he examined P.W.37 lately. It is not clarified by
the prosecution as to how the I.O. could know that P.W.37 had
any knowledge about the occurrence. The explanation of delayed
examination given by the I.O. is very difficult to be accepted as
P.W.37 himself has not stated that his grocery shop was closed
after 09.10.2017 rather he stated that he saw the viral video
sitting at his shop two days of the incident.
Neither the owner nor the salesman of the liquor
shop has been examined to corroborate the evidence of P.W.37
Page 50 of 95
that the appellants had come on 09.10.2017 with the deceased
Biranchi to purchase liquor. If liquor was consumed in front of
P.W.37 after purchasing water pouch, three use and throw
glasses and mixture from the shop of P.W.37 staying there for
10 to 12 minutes, then how I.O. and Scientific Officer as per the
spot visit report (Ext.43) could found the liquor bottle and use
and throw tumblers with alcohol smell at Pokanda bridge, where
the dead body of Biranchi Naik was found. P.W.37 has not stated
that after consuming some liquor from the liquor bottle in front
of his shop, the appellants carried the balance liquor left in the
liquor bottle with them so also the use and throw glasses. The
finding of liquor bottle and use and throw tumblers at Pokanda
bridge falsifies the statement of P.W.37 that after purchasing
water pouch, three use and throw glasses and mixture from his
grocery shop, the appellants and the deceased consumed the
same staying there for about 10 to 12 minutes.
If the appellants and the deceased had not stayed for
such time as deposed to by P.W.37 for consuming liquor then he
could not have got much time to remember their faces. There is
nothing on record about the nature of lighting arrangement in
the shop of P.W.37. Appellant Nandakishore Sethi was an
unknown person to P.W.37 and there is nothing on record that
Page 51 of 95
there were some special features in the appellant which could
facilitate P.W.37 to remember his identity. Since no test
identification parade in respect of appellant Nandakishore Sethi
has been conducted, it is very difficult to accept his identification
evidence in Court for the first time as P.W.37 was examined in
Court on 08.12.2023, which was more than 6 years after the
occurrence.
In the case of Sheo Shankar Singh (supra), it is
held that identification of the accused in the Court by the witness
constitutes the substantive evidence in a case although any such
identification for the first time at the trial may more often than
not appear to be evidence of a weak character. That being so a
test identification parade is conducted with a view to
strengthening the trustworthiness of the evidence. Such a test
identification parade then provides corroboration to the witness
in the Court who claims to identify the accused persons
otherwise unknown to him. Test Identification parades,
therefore, remain in the realm of investigation. The Code of
Criminal Procedure does not oblige the investigating agency to
necessarily hold a test identification parade nor is there any
provision under which the accused may claim a right to the
holding of a test identification parade. The failure of the
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investigating agency to hold a test identification parade does not,
in that view, have the effect of weakening the evidence of
identification in the Court. As to what should be the weight
attached to such an identification, is a matter which the Court
will determine in the peculiar facts and circumstances of each
case. In appropriate cases, the Court may accept the evidence of
identification in the Court even without insisting on
corroboration.
In the case of Allarakha Habib Memon (supra), it
is held as follows:-
"22. Demistalkumar (P.W.12) was also made to
identify the accused persons in the dock, but
that is another story which we shall consider at
a later stage. The witness identified the
appellant-accused as the offenders. However,
we find that the lame attempt by P.W.12 to
make dock identification of the accused in his
deposition recorded after nearly two-and-a-half
years of the incident is absolutely flimsy and
unacceptable. The witness had not given out
either the names or the description of the
features of the accused in his police statement
and thus, if at all, the prosecution was desirous
of getting the accused identified at the hands of
this witness, then he should have been made to
identify the accused persons in a test
Page 53 of 95
identification parade during the investigation.
Thus, the identification of the accused by
Demistalkumar (P.W.12) for the first time in the
dock is totally unbelievable and unacceptable."
The viral news through which P.W.37 could come to
know about the identity of the appellants and the deceased has
not been proved in the case. The deceased Biranchi was also
unknown to P.W.37 beforehand. At least the I.O. could have
confirmed the identity of the deceased showing his photograph
to P.W.37 which has not been done.
If the appellants were there in the company of the
deceased on 09.10.2017 and taking him in a motor cycle in the
night hours to kill him, it is difficult to accept that they would
have exposed the deceased to P.W.37 in his grocery shop rather
any of the appellants could have gone to the foreign liquor shop
so also to the shop of P.W.37 leaving the other appellant in the
company of the deceased at a little distance.
In view of the suspicious features appearing in the
evidence of P.W.37, it is difficult to accept his sole testimony to
apply „last seen theory‟ in this case against the appellants. Once
we are not accepting the evidence of P.W.37, the submission of
the learned State Counsel that no explanation has been offered
by the appellants in their accused statements as to how the
Page 54 of 95
deceased Biranchi Naik died a homicidal death after being last
seen alive in their company, though seems attractive but does
not hold good in fact and circumstance of the present case.
Seizure of Black Colour Full Pant (M.O.23) at the instance
of appellant Nandakishore Sethi:
14. The relevant witnesses to the seizure of black colour
full pant (M.O.23) at the instance of the appellant Nandakishore
Sethi are P.Ws.1 and 2 and the I.O. (P.W.41) and the relevant
seizure list is Ext.1/2. The said seizure is stated to have been
made on 12.10.2017 from a bush on the road side of Thakurgarh
Pathargumpa road near village Pathargumpa.
P.W.1 has not supported the prosecution case of
seizure of black colour full pant rather he has specifically stated
that nothing was seized by police in the case in his presence. He
has simply proved his signature in the seizure list. He has been
declared hostile by the prosecution. In the cross-examination, he
has stated that the police took his signature on an unwritten
paper.
P.W.2 has also not supported the prosecution case
and stated that nothing was seized by police in the case in his
presence and he has only proved his signature in the seizure list.
Page 55 of 95
Like P.W.1, he has stated that the police took his signature on an
unwritten paper.
P.W.41, the I.O. has stated that in presence of
P.Ws.1 and 2, the appellant Nandakishore Sethi gave recovery of
one black color full pant stained with blood on which a sticker
written thereon as „ONLY‟ on the backside of pant and above the
back pocket was there. He has proved the seizure list as Ext.1/2
so also the black colour full pant as M.O.23 and the paper slip
affixed on the packet as Ext.54.
The appellant Nandakishore Sethi has disputed the
seizure of such black colour full pant at his instance in his
accused statement.
Though in the seizure list dated 12.10.2017 vide
Ext.1/2, it is mentioned that the place of seizure was from a
bush on the road side of Thakurgarh-Patharagumpa road near
village Patharagumpa, however P.W.41, the I.O. has not stated
that the seizure was made from inside the bush. Similarly, in the
seizure list vide Ext.1/2, nowhere it is mentioned that after the
seizure, the black color full pant was kept in sealed condition.
The seal impression has not been affixed to the seizure list.
The black colour full pant (M.O.23) was produced in
Court on 14.12.2017 (after two months of its seizure) for
Page 56 of 95
sending the same to the S.F.S.L., Rasulgarh, Bhubaneswar. In
the forwarding report vide Ext.57, in serial no.29, though this
pant is found mentioned, but it is not written therein that it was
in sealed condition.
There is no evidence that after the seizure of black
colour full pant (M.O.23), it was kept in safe custody till it was
produced in Court. In the case of Sinic Patricia (supra), it is
held as follows:-
"The claim made by the prosecution that the
seized articles were kept in safe custody in the
police station till they were produced before the
Magistrate is too tall a claim to be accepted.
Besides the aforesaid fatal lacuna in the
prosecution, there is no evidence to guarantee
that the seals on the packets in question were
properly made remained intact right from the
date of sealing of the packets till they were
opened before the Magistrate near about two
months after the seizure. As already noted, no
evidence is forthcoming to hold that the packets
were properly sealed. In absence of evidence of
retaining the specimen seal with any reliable
person, the apprehension that there was
chance of tampering with the packets cannot be
lightly brushed aside. The specimen seal was
not produced before the Magistrate when
packets were opened to bring out samples for
Page 57 of 95
the purpose of sending the same to the
Chemical Examiner of State Forensic Science
Laboratory. It is for the prosecution to establish
and cover the entire path by adducing cogent,
reliable and unimpeachable evidence that the
seized articles were properly sealed and there
was no chance of tampering with the packets
during the retention of those packets at the
police station and the seized articles were the
very articles produced before the Magistrate for
sending them to the Chemical Examiner. The
prosecution has failed to discharge this
burden."
In the case of Allarakha Habib Memon (supra), it
is held as follows:-
"45. On a threadbare analysis of the entire
record, we do not find that the prosecution
examined any witness who had deposed about
the link evidence/safe custody of the muddamal
articles right from the time they were received
at the police station and seized till the time the
same reached the FSL. Hence, otherwise also,
the FSL report (Exts. 111-115) pales into
insignificance."
In the case of Karandeep Sharma @ Razia @ Raju
(supra), it is held as follows:-
"55. Evidently, there is not even a semblance of
evidence on record to satisfy the Court that the
Page 58 of 95
samples/articles collected from the dead body
of the child-victim and those collected from the
appellant which were later forwarded to the FSL
were properly sealed or that the same remained
in a self-same condition right from the time of
the seizure till they reached the FSL. No witness
from the FSL was examined by the prosecution
to prove that the samples/articles were
received in a sealed condition. Hence, there is
every possibility of the samples being
tampered/manipulated by the police officers so
as to achieve a favourable result from the FSL,
thereby, inculpating the appellant in the crime."
P.W.41, the I.O. has stated that after the seizure, he
came back to the police station along with the accused persons
and the seized articles and then kept it in his custody. The
Malkhana Register has not been proved to show that P.W.41
kept the articles seized in the Malkhana. P.W.41 stated to have
handed over the charge of investigation on 25.11.2017 to his
successor, namely, Prativa Majhi but he has not stated that the
seized articles were handed over in sealed condition to Prativa
Majhi. Prativa Majhi, the subsequent I.O. has also not been
examined to prove the safe custody of the articles seized.
Therefore, the safe custody of the black colour full
pant (M.O.23) after its seizure on 12.10.2017 till it was produced
Page 59 of 95
in Court on 14.12.2017 and reached the S.F.S.L. is a doubtful
feature. Even though small patch of human blood was found on
M.O.23 as per Biology Division report dated 15.02.2018, but in
view of glaring loopholes in the prosecution case that M.O.23
remained untampered, no importance can be attached to such
seizure.
Seizure of White Colour Half Shirt with Stripes (M.O.24)
and Hero HF Deluxe Motorcycle at the instance of
appellant Nandakishore Sethi:
15. It is the prosecution case that from the house of the
appellant Nandakishore Sethi in village Gambharimaliha, on his
production, one white colour half shirt with red, blue and black
thin stripes (M.O.24) along with Hero HF Deluxe motorcycle were
seized on 12.10.2017 by the I.O. (P.W.41) as per seizure list
Ext.4. The relevant witnesses on the seizure are P.W.4, P.W.10
and the I.O. (P.W.41).
P.W.4 has stated that two days after the occurrence,
police seized a motorcycle, one Katuri, pant and shirt of
appellant Nandakishore Sethi at the police station in his presence
and also in presence of P.W.10 and prepared the seizure list
Ext.4. However, in the cross-examination, he stated that he did
not know as to from which place, police brought the motorcycle,
Page 60 of 95
Katuri, pant and shirt. He further stated that the police showed
the same at the police station and prepared the seizure list in
their presence. He further stated that he did not know the
contents of the seizure list and its contents were not read over
and explained to him by police.
P.W.10 stated that police seized one motorcycle and
one half shirt in his presence as per seizure list Ext.4. However,
in the cross-examination, he has stated that he signed the
seizure list at Kishorenagar police station and that he could not
say from where the police got the shirt and motorcycle.
Thus, the evidence of these two independent seizure
witnesses i.e. P.W.4 and P.W.10 is completely silent that the
Hero HF Deluxe motorcycle and white half shirt were seized at
the instance of the appellant Nandakishore Sethi from his house.
These two witnesses have also not stated that after the seizure
of the half shirt, it was kept in sealed condition.
P.W.41, the I.O. has stated that on 12.10.2017, he
seized one white colour half shirt with red-blue-black thin stripes
of the appellant Nandakishore Sethi on which „LIVERPOOL‟ had
been stitched on the collar and one red colour HERO HF Deluxe
motorcycle bearing registration no.OD-19-K-2022 was seized
from the house of the appellant in presence of witnesses P.W.4
Page 61 of 95
and P.W.10 and he prepared the seizure list Ext.4. He proved the
shirt as M.O.24 and the paper slip affixed on packing as Ext.55.
The seizure list Ext.4 does not indicate that M.O.24
was kept in a sealed condition and specimen seal impression is
not given in it.
Apart from the fact that there is no clinching
evidence as to where the white color half shirt (M.O.24) was kept
after its seizure till it was produced before the Court for sending
the same for Chemical Examination but also the forwarding
report Ext.57 does not indicate that it was produced in a sealed
condition. Moreover, as per the report of Biology Division, no
blood was found on the white color half shirt. Thus, the seizure
of the shirt under seizure list Ext.4 is no way helpful to the
prosecution case. Similarly, there is no evidence that the HERO
HF Deluxe motorcycle bearing registration no.OD-19-K-2022 was
used in connection with the crime. P.W.37 has stated that he
could not say the registration number of the motorcycle.
Thus, the seizure of white colour half shirt and
motorcycle under seizure list Ext.4 cannot be used as
incriminating evidence against the appellant Nandakishore Sethi.
The learned trial Court erred in utilizing the seizure of M.O.24 as
an incriminating evidence against the appellant.
Page 62 of 95
Seizure of Katuri (M.O.6) and Gamucha (M.O.7) at the
instance of appellant Prakash Behera:
16. The relevant witnesses on the seizure of Katuri
(M.O.6) and Gamucha (M.O.7) at the instance of appellant
Prakash Behera are P.W.11, P.W.35 and the I.O. (P.W.41) and
the relevant seizure list is Ext.19. The said seizure is stated to
have been made on 12.10.2017 from the cultivable land of
Bairagi Nayak of village Pokanda.
P.W.11 has stated that on 12.10.2017, the appellant
Prakash Behera not only confessed his guilt but also stated to
have concealed a chopper and blood stained towel near a bush
and then he along with appellant Nandakishore Sethi led them to
the place of concealment i.e. land of Bairagi Nayak at village
Pokonda and those were seized on production of the appellants
as per seizure list Ext.19. In the cross-examination, he has
stated that only appellant Prakash Behera brought out the
chopper and towel from the bushes and handed over the same to
the police. He has not stated about the sealing of either
gamucha or Katuri after its seizure. He was not shown the seized
gamucha or Katuri by the prosecution for identification in Court.
P.W.35 has stated that the confessional statement of
appellant Prakash Behera was recorded vide Ext.18 and then he
Page 63 of 95
led the police along with witnesses to the place of hiding and
gave recovery of blood stained gamucha along with Katuri from
bamboo clump of Bairagi Nayak. He has further stated that in
M.O.6, he has put his signature on a paper sticker affixed by
police along with the signature of P.W.11 and appellant Prakash
Behera. Similarly, he has further stated that M.O.7 is the blood
stained gamucha in which a paper slip was affixed and he signed
the same and P.W.11 also put his signature. In the cross-
examination, he has stated that the place of recovery is situated
at a distance of 25 feet from the public road which runs from
Pokonda to Mindol and the road nearing the place of recovery is
used by the public.
P.W.41, the I.O. has stated that the statement of
appellant Prakash Behera was recorded under section 27 of the
Evidence Act and he proved the statement as Ext.18. He further
stated that the appellant led the police to the cultivable land of
Bairagi Nayak and from inside bamboo bush, the appellant
produced Katuri (M.O.6) and gamucha (M.O.7) which were
seized by him as per seizure list Ext.19 in presence of witnesses
P.W.11 and P.W.35. He further stated to have affixed the paper
slip on both the articles seized and those were separately
packed, sealed and then kept in his personal custody.
Page 64 of 95
In Ext.19 which is a printed form of property seizure
memo, below column no.13, a space is provided for giving the
specimen of seal, but no specimen seal impression is there.
The Katuri (M.O.6) was produced before the three
doctors i.e. P.W.5, P.W.6 & P.W.12 who conducted post mortem
examination over the dead bodies of three deceased to obtain
their opinion relating to possibility of the injuries sustained by
the deceased persons with such weapon.
P.W.5 has stated that the weapon of offence was
produced before her without seal and in open condition.
However, she stated that the weapon of offence was returned by
her with proper seal. She admits that the specimen seal mark
was not affixed on her report and that she did not remember if
the weapon of offence was sealed with paper or by means of
brass seal. P.W.6 has stated that he could not say whether the
weapon which was produced before him by the police for query
was sealed or open. P.W.12 however stated that the I.O.
produced M.O.6 in a sealed cover and he submitted the query
report. From the evidence of the I.O. (P.W.41), it appears that
the weapon (M.O.6) was produced before P.W.12 first and then
before P.W.6 and lastly before P.W.5.
Page 65 of 95
As already stated, though the evidence of the I.O.
(P.W.41) is that after the seizure, the Katuri (M.O.6) was
separately packed and sealed and then kept in his personal
custody, but when it was produced before the doctors one after
another to obtain the query reports, the seal must have been
opened. If according to P.W.5, who lastly examined the weapon
of offence (M.O.6), it was returned by her with proper seal, then
the forwarding report of the weapon vide Ext.57 would have
reflected the sealed condition of M.O.6, but it has not been
reflected as such. Similarly, the napkin has not been shown to be
in sealed condition in Ext.57. No doubt the report of the biology
division indicates that the Katuri was stained with human blood
and napkin (gamucha) of the accused was also stained with
human blood, but no grouping could be made. However, when
the safe custody of both these items i.e. Katuri (M.O.6) and
Gamucha (M.O.7) before its production in Court for being sent
for chemical examination, is a doubtful feature as the malkhana
register has not been proved, specimen seal impression is not
given in the seizure list and specimen seal was not produced
before the Court at the time of production of seized articles for
verification before sending it to S.F.S.L., it is very difficult to give
any importance to the seizure of Katuri (M.O.6) and Gamucha
(M.O.7) as per seizure list Ext.19.
Page 66 of 95
Seizure of Full Shirt (M.O.1) and Jean Pant (M.O.2) at the
instance of appellant Prakash Behera:
17. The relevant witnesses on the seizure of full shirt
(M.O.1) and jean pant (M.O.2) at the instance of the appellant
Prakash Behera are P.W.15 and the I.O. (P.W.41) and the
relevant seizure list is Ext.21. The said seizure is stated to have
been made on 12.10.2017 from near bamboo bush situated from
the side of Brahmanpada Bidisingh Project Nala.
P.W.15 has stated that the appellants were examined
by the police who disclosed to have kept the wearing apparels
hiding under bamboo bush and the police recorded the
statement and as per the statement, the appellant himself
produced his wearing apparels from the bamboo bush and
handed over the same to police and the seizure list Ext.21 was
prepared. He stated that it was a blue colour jean pant with
sticker (M.O.2) and a cement colour full shirt with blood stain
(M.O.1). In the cross-examination, he has stated that he had no
idea whether the police recorded the statements of the
appellants or not.
P.W.41 has also stated about such seizure at the
instance of appellant Prakash Behera from near bamboo bush.
However, the statement given by the I.O. that after making the
Page 67 of 95
seizure of recovered articles, he kept it in his personal custody
with proper packing and seal is a doubtful feature as the seal
impression is not given in Ext.21 at the appropriate place under
the column no.13.
When full shirt (M.O.1) and jean pant (M.O.2) were
produced in Court as per forwarding report Ext.57, it was not
shown to have in sealed condition. Moreover, as per the biology
division report, in full shirt (M.O.1) which is marked as Ext.P-1,
no blood was found and in jean pant (M.O.2) which is marked as
Ext.P, though human blood was found, but the grouping could
not be detected. Moreover, the DNA test report also does not
indicate that the human blood found in Ext.P matched with DNA
profile of any of the deceased.
Therefore, the seizure of full shirt (M.O.1) and jean
pant (M.O.2) at the instance of the appellant Prakash Behera as
per the seizure list Ext.21 is no way helpful to the prosecution.
DNA Test Report Findings:
18. The learned trial Court has jotted down three
circumstances which relates to DNA test report findings i.e. (i)
blood stain found on the Katuri (M.O.6) is of human origin of
deceased Naba @ Ekalabya Nayak, (ii) blood stain of cut piece
of shirt of deceased Naba @ Ekalabya Nayak matched with blood
Page 68 of 95
stain found on napkin of appellant Prakash Behera @ Babuli, (iii)
blood stain found on cut piece of banian of deceased Biranchi
Nayak matched with blood stain found in cut piece of full pant of
accused Naba Kishore Sethi @ Ranja.
After registration of the F.I.R., P.W.41, the I.O.
started investigation and informed to S.D.P.O., Athamallik and
S.P., Angul over telephone for deputation of scientific team to
the spot. The Scientific Officer (P.W.40), who was working under
DFSL, Dhenkanal visited the three crime scenes on 10.10.2017
and collected materials and produced the same before the I.O.,
who seized it vide seizure lists Exts.29, 30, 31 and 32. The I.O.
also seized some other articles and forwarded the relevant
exhibits to Court on 14.12.2017 for sending the same for
chemical examination and opinion to S.F.S.L., Rasulgarh,
Bhubaneswar. The forwarding report (Ext.57) dated 14.12.2017
would indicate that the weapon of offence i.e., one Katuri,
wearing apparels of accused persons and deceased persons,
exhibits collected by P.W.40 and the nail clippings of the accused
persons which were collected by the Medical officer and seized,
were produced before the Court for sending it to S.F.S.L.,
Rasulgarh, Bhubaneswar.
Page 69 of 95
All total 32 exhibits were forwarded by learned
S.D.J.M., Athamallik on 14.12.2017 to the Director, S.F.S.L.,
Bhubaneswar for necessary examination and opinion. The
forwarding report (Ext.57) indicates that the exhibits mentioned
in serial nos.1 to 15 were seized on 10.10.2017 on production by
the Scientific Officer (P.W.40), the exhibits mentioned in serial
nos.16 to 24 were seized on 11.10.2017 on being produced by
the constables after post mortem examination of the three
deceased and the exhibits mentioned in serial nos.25 to 32 were
seized on 12.10.2017. The forwarding report (Ext.57) does not
indicate that the exhibits mentioned in serial nos.16 to 30 were
in sealed condition when those were produced.
At this stage, it would be apt to reproduce the order
no.9 dated 14.12.2017 of learned S.D.J.M., Athamallik which
reads as follows:-
"The case record is put today as the Inspector P.
Majhi (name mentioned wrongly in place of P.
Lenka), I.I.C. of Kishorenagar P.S. appeared
before Court with prayer to send the exhibits in
Kishorenagar P.S. case no.91 date 10.10.17
under section 302 I.P.C. turned to under
sections 302/363/364/394/201 I.P.C. read with
section 25/27 of Arms Act to the Director,
S.F.S.L., Rasulgarh for chemical examination.
Page 70 of 95
Prayer is allowed. Verified the exhibits with
forwarding report and seizure list. Send the
exhibits to the Director, S.F.S.L., Rasulgarh for
chemical report. Put up on the date fixed."
The order does not indicate that the unsealed
exhibits which were produced, were sealed in Court. It does not
indicate that the learned Magistrate verified the conditions of the
seals given in some exhibits. No seal was produced before the
Magistrate for its comparison with the seals given in some
exhibits. No seal impression is there in the seizure lists Exts.1/2.
4, 19 and 21.
The report (Ext.59) of the S.F.S.L., Rasulgarh,
Bhubaneswar indicates that all the 32 exhibits in sealed
paper/sealed packet were received on 15.12.2017 through
Constable R.R. Bagh (P.W.26). The evidence of P.W.26 is
completely silent that he carried the exhibits to S.F.S.L.
On 14.12.2017 Prativa Majhi was in-charge of
investigation of the case as per the version of P.W.41, but she
has not been examined. If as per the forwarding report (Ext.57),
some of the exhibits (as mentioned in serial nos. 16 to 30) were
produced in Court in unsealed conditions and the order sheet of
the Court does not indicate that those were sealed in Court
rather those were routed through police to reach the S.F.S.L.,
Page 71 of 95
then the duty of the prosecution was to explain as to when and
where those exhibits were sealed and by whom.
If as per the forwarding report (Ext.57), the seizures
were made in between 10.10.2017 to 12.10.2017 then why
those exhibits were forwarded to Court on 14.12.2017 i.e., after
two months. There is no clinching evidence in whose custody
and in what conditions the exhibits were retained before those
were produced in Court. Though the I.O. (P.W.41) has stated
that he kept the recovered articles in his personal custody with
proper packing and seal, but since most of the exhibits were
produced in Court on 14.12.2017 not in packed and sealed
condition, it is difficult to accept the version of the I.O. (P.W.41)
relating to safe custody. The Malkhana register has not been
proved, nor was the Malkhana in-charge examined by the
prosecution which would have at least shown that the exhibits
were kept there safely. The seal impressions were not given on
the seizure lists. The I.O. (P.W.41) has stated that on
25.11.2017, he handed over the charge of investigation to his
successor Prativa Majhi along with all relevant documents and
Mal items, but Prativa Majhi has not been examined to say what
she did after receiving the Mal items and where she kept the
same. These are the glaring lapses on the part of the
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investigation agency which creates doubt that the exhibits were
in safe custody and that there was no chance of tampering with
the same.
It is pertinent to note that DNA test findings in
respect of some of the exhibits, has gone against the appellants
and has also been utilized against them. Therefore, when
reasonable doubt crops up relating to the safe custody of the
exhibits, it is very difficult to give due weight to the DNA test
report.
The following conclusions have been arrived at by
the Scientific Officer as per the DNA test report findings, which
according to the prosecution are very much relevant against the
appellants:-
(i) The DNA profile generated from Exhibit
marked-N (S.E. from Katuri) is of a human male
origin and is matching with the DNA profile
generated from Exhibit-M1 (cut piece from shirt of
deceased Naba @ Ekalabya Nayak). Table III.
(ii) The DNA profile generated from Exhibit
marked-O (cut piece from napkin of accused Babuli
@ Prakash Behera) with dropout at DYS391 locus
(reference: Journal of Forensic Sciences, July 2004,
Vol.49 No.4, Chung et al pp 733-740) is of a human
male origin. At 23 numbers of loci the DNA profile of
Exhibit marked-M1 (cut piece from shirt of deceased
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Naba @ Ekalabya Nayak) is matching with DNA
profile generated from Exhibit marked-O. Table-IV.
(iii) The DNA profile generated from Exhibit
marked-Q (cut piece from full pant of accused Ranja
@ Nand Kishore Sethi) is of a human male origin and
matching with DNA profile of Exhibit-L1 (cut piece
from banian of deceased Biranchi Nayak). Table V.
So far as the DNA profile finding relating to Katuri
and napkin is concerned, since we have already held that it is
very difficult to give any importance to the seizure of Katuri
(M.O.6) and napkin (M.O.7) at the instance of appellant Prakash
Behera and its safe custody and particularly when the forwarding
report (Ext.57) does not indicate in serial nos.25 and 26 that
M.O.6 and M.O.7 were in sealed condition at the time of its
production after two months of its seizure, the DNA profile
finding becomes irrelevant.
Similarly, so far as DNA profile finding relating to full
pant of appellant Nand Kishore Sethi is concerned, since we have
held that the safe custody of the black color full pant (M.O.23)
after its seizure is a doubtful feature and particularly when the
forwarding report (Ext.57) does not indicate in serial no.29 that
M.O.23 was in sealed condition at the time of its production after
two months of its seizure, the DNA profile finding becomes
irrelevant.
Page 74 of 95
Admittedly, the S.F.S.L. report (Ext.59) which
includes DNA and serological and biological report has been
marked as an exhibit during the examination of the I.O.
(P.W.41), who has neither sent the exhibits to Court nor received
such report. The Scientific Officer and A.C.E. undertaking
examination, namely, Suchismeeta Behera has not been
examined to prove such report.
In the case of Karandeep Sharma alias Razia
alias Raju (supra), it is held as follows:-
"39. The first flaw in the prosecution case on the
aspect of DNA profiling is that the expert who
conducted the DNA examination was not
examined in evidence and the DNA report was
merely exhibited in evidence by the
Investigating Officer (P.W.14) who undeniably is
not connected with the report in any manner.
This Court in the case of Rahul Vs. State of
Delhi (supra) while dealing with the issue
concerning evidentiary value of DNA report, has
held that DNA profiling reports cannot be
admitted in evidence ipso facto by virtue of
Section 293 Cr.P.C. and it is necessary for the
prosecution to prove that the techniques of DNA
profiling were reliably applied by the expert. The
relevant excerpts from the said judgment are
reproduced hereinbelow for the sake of ready
reference:-
Page 75 of 95
"36. The learned Amicus Curiae has also
assailed the forensic evidence i.e. the report
regarding the DNA profiling dated 18-4-
2012 (Ext. P-23/1), giving incriminating
findings. She vehemently submitted that
apart from the fact that the collection of the
samples sent for examination itself was
very doubtful, the said forensic evidence
was neither scientifically nor legally proved
and could not have been used as a
circumstance against the appellant-accused.
The Court finds substance in the said
submissions made by the Amicus
Curiae. The DNA evidence is in the
nature of opinion evidence as
envisaged under Section 45 and like
any other opinion evidence, its
probative value varies from case to
case.
38. It is true that P.W.23 Dr B.K.
Mohapatra, Senior Scientific Officer
(Biology) of CFSL, New Delhi had stepped
into the witness box and his report
regarding DNA profiling was exhibited as
Ext. PW 23/A, however mere exhibiting
a document, would not prove its
contents. The record shows that all the
samples relating to the accused and relating
to the deceased were seized by the
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investigating officer on 14-2-2012 and 16-
2-2012; and they were sent to CFSL for
examination on 27-2-2012. During this
period, they remained in the malkhana
of the police station. Under the
circumstances, the possibility of
tampering with the samples collected
also could not be ruled out. Neither the
trial court nor the High Court has
examined the underlying basis of the
findings in the DNA reports nor have
they examined the fact whether the
techniques were reliably applied by the
expert. In the absence of such evidence
on record, all the reports with regard to
the DNA profiling become highly
vulnerable, more particularly when the
collection and sealing of the samples
sent for examination were also not free
from suspicion."
(emphasis supplied)
40. Thus, in the facts and circumstances of the
present case, non-examination of the scientific
expert who carried out the DNA profiling is fatal,
and the DNA report cannot be admitted in
evidence."
In the case of Rahul (supra), it is held as follows:-
"37. In this regard very pertinent observations
made by this Court in Manoj v. State of M.P. :
Page 77 of 95
(2023) 2 SCC 353 deserve to be made. This
Court has in detail dealt with the issue of DNA
profiling methodology and statistical analysis, as
also the collection and preservation of DNA
evidence. The relevant paragraphs read as
under: (SCC paras 151-56)
"151. During the hearing, an article
published by the Central Forensic Science
Laboratory, Kolkata [DNA profiling in Justice
Delivery System, Central Forensic Science
Laboratory, Directorate of Forensic Science,
Kolkata (2007)] was relied upon. The
relevant extracts of the article are
reproduced below:
„Deoxyribonucleic acid (DNA) is
genetic material present in the nuclei
of cells of living organisms. An
average human body is composed of
about 100 trillion of cells. DNA is
present in the nucleus of cell as
double helix, supercoiled to form
chromosomes along with intercalated
proteins. Twenty-three pairs of
chromosomes present in each
nucleated cells and an individual
inherits 23 chromosomes from mother
and 23 from father transmitted
through the ova and sperm
respectively. At the time of each cell
division, chromosomes replicate and
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one set goes to each daughter cell. All
information about internal
organisation, physical characteristics,
and physiological functions of the
body is encoded in DNA molecules in
a language (sequence) of alphabets of
four nucleotides or bases : Adenine
(A), Guanine (G), Thymine (T) and
Cytosine (C) along with sugar-
phosphate backbone. A human
haploid cell contains 3 billion bases
approx. All cells of the body have
exactly same DNA but it varies from
individual to individual in the
sequence of nucleotides. Mitochondrial
DNA (mtDNA) found in large number
of copies in the mitochondria is
circular, double stranded, 16,569 base
pair in length and shows maternal
inheritance. It is particularly useful in
the study of people related through
the maternal line. Also being in large
number of copies than nuclear DNA, it
can be used in the analysis of
degraded samples. Similarly, the Y
chromosome shows paternal
inheritance and is employed to trace
the male lineage and resolve DNA
from males in sexual assault
mixtures.
Page 79 of 95
Only 0.1 % of DNA (about 3 million
bases) differs from one person to
another. Forensic DNA Scientists
analyse only few variable regions to
generate a DNA profile of an
individual to compare with biological
clue materials or control samples.
* * *
DNA Profiling Methodology
DNA profile is generated from the
body fluids, stains, and other
biological specimen recovered from
evidence and the results are
compared with the results obtained
from reference samples. Thus, a link
among victim(s) and/or suspect(s)
with one another or with crime scene
can be established. DNA profiling is a
complex process of analyses of some
highly variable regions of DNA. The
variable areas of DNA are termed
genetic markers. The current genetic
markers of choice for forensic
purposes are Short Tandem Repeats
(STRs). Analysis of a set of 15 STRs
employing Automated DNA Sequencer
gives a DNA profile unique to an
individual (except monozygotic twin).
Similarly, STRs present on Y
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chromosome (Y-STR) can also be
used in sexual assault cases or
determining paternal lineage. In cases
of sexual assaults, Y-STRs are helpful
in detection of male profile even in
the presence of high level of female
portion or in case of azoo11permic or
vasectomised" male. Cases In which
DNA had undergone environmental
stress and biochemical degradation,
min lSTRs can be used for over
routine STR because of shorter
amplicon size.
DNA profiling is a complicated process
and each sequential step involved in
generating a profile can vary
depending on the facilities available in
the laboratory. The analysis
principles, however, remain similar,
which include:
1. isolation, purification & quantitation
of DNA
2. amplification of selected genetic
markers
3. visualising the fragments and
genotyping
4. statistical analysis & interpretation.
In mtDNA analysis, variations in
Hypervariable Region I & II (HVR I &
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II) are detected by sequencing and
comparing results with control
samples:
Statistical Analysis
Atypical DNA case involves
comparison of evidence samples, such
as semen from a rape, and known or
reference samples, such as a blood
sample from a suspect. Generally,
there are three possible outcomes of
profile comparison:
(1) Match: If the DNA profiles
obtained from the two samples are
indistinguishable, they are said to
have matched.
(2) Exclusion: If the comparison of
profiles shows differences, it can only
be explained by the two samples
originating from different sources.
(3) Inconclusive : The data does not
support a conclusion of the three
possible outcomes, only the "match"
between samples needs to be
supported by statistical calculation.
Statistics attempt to provide meaning
to the match. The match statistics are
usually provided as an estimate of the
Random Match Probability (RMP) or in
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other words, the frequency of the
particular DNA profile in a population.
In case of paternity/maternity testing,
exclusion at more than two loci is
considered exclusion. An allowance of
1 or 2 loci possible mutations should
be taken into consideration while
reporting a match. Paternity or
Maternity Indices and Likelihood
Ratios are calculated further to
support the match.
Collection and Preservation of Evidence
If DNA evidence is not properly documented,
collected, packaged, and preserved, it will not
meet the legal and scientific requirements for
admissibility in a court of law. Because
extremely small samples of DNA can be used as
evidence, greater attention to contamination
issues is necessary while locating, collecting,
and preserving DNA evidence can be
contaminated when DNA from another source
gets mixed with DNA relevant to the case. This
can happen when someone sneezes or coughs
over the evidence or touches his/her mouth,
nose, or other part of the face and then touches
area that may contain the DNA to be tested. The
exhibits having biological specimen, which can
establish link among victim(s), suspect(s), scene
of crime for solving the case should be
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identified, preserved, packed and sent for DNA
profiling.‟‟
In a recent decision which was pronounced on
15.07.2025 by the Hon'ble Supreme Court in case of Kattavellai
@ Devakar -Vrs.- State of Tamil Nadu reported in
MANU/SC/0917/2025: 2025 LiveLaw (SC) 703, it has been
held as follows:
"29. The first limb of considering the DNA
evidence is the vagina swabs taken from D-2.
P.W.37 in her chief examination, stated that
once she took the said samples, they were sent
to FSL Madurai, for DNA test, but striking an
entirely different tone in her cross-examination,
she said that having taken these samples she
'might have' handed over the said swabs to the
constable on duty. It is noteworthy to observe
here itself that P.W.41, who was the constable
on duty, makes no such mention of having
received the swabs from P.W.37. P.Ws.52 and
54 both state that upon collection, the samples
remained with P.W.37 at the Government
Hospital. Per contra, P.W.56 states that the
samples were kept at Royappanpatti Police
Station. P.W.42, who is a police carrier, states
that he collected the samples from the
Government Medical College and took them to
the Regional Forensic Science Laboratory,
Madurai, on 29th June, 2011. This means they
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were sent to the FSL after a delay of 41 days,
having been taken on 19th May, 2011. The
prosecution has not been able to explain the
reason as to why this delay took place. We find
force in the argument made on behalf of the
Appellant-convict that the circumstances under
which the samples were sent from FSL, Madurai
to FSL, Chennai, are unclear. P.W.27, who is a
Scientific Officer only states that after his
analysis of the swab, he sent the same to the
DNA wing of the FSL Chennai. No reason is
forthcoming as to why and under whose orders
the same were sent to a different city. The final
DNA report was prepared by P.W.34. He,
however, in his evidence does not mention when
the samples were received by him or his office.
Nor does he depose the conditions in which the
sample was received. In this regard, the
Appellant-convict contended that the swab itself
was received by speed post. We find that to be
an incorrect statement of facts. P.W.34 states
that the report prepared by him was DNA
152/2011. A perusal of the annexure to the DNA
report shows the label given to the document
sent by speed post as matching that of the
report prepared by P.W.34. So, it is clear that
the report was what was sent by speed post, not
the swab itself. That apart, had it actually been
that the swab was sent by speed post, we would
be nothing short of aghast. Time and again, this
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Court has emphasized the importance of
maintaining the sanctity of these samples and,
the investigating authorities actually doing
something so glaringly irresponsible would be an
affront to any and all observations that have
been made by this Court over the years.
30. Having noticed various gaps as above, the
logical question that arises is where were the
swabs?; why were they sent for forensic analysis
belatedly?; were they properly stored?; whether
the Malkhana of the Police Station where they
were kept according to some of the witnesses,
was sufficiently equipped or not; if the same
were kept in the hospital, was it ensured that no
other member of the staff could have had access
to them?; in whose custody were they?; if the
swabs were damaged, who shall be held
responsible for the destruction of vital evidence,
etc. Similar questions arise in connection with
the semen sample taken from the Accused as a
consequence of an order passed by the Judicial
Magistrate, Uthamapalayam, on 13th June, 2011.
P.W.56 states that the said samples were sent
to FSL, Chennai, on 16th June, 2011 but
subsequently returned. It is unclear, yet again,
that between 13th and 16th June 2011 where
such samples were stored; who was in charge
thereof and whether he had kept them in safe
custody?; how and in what condition they were
sent; when and why they were returned -
Page 86 of 95
unfortunately, all these questions have no
answer forthcoming from the record.
31. In Anil v. State of Maharashtra : (2014)
4 SCC 69 this Court observed that DNA profiles
have had a tremendous impact on criminal
investigations. A DNA profile is valid and
reliable, but the same depends on quality
control and procedures in the laboratory. We
may add to this position and say, that quality
control and procedures outside the laboratory
matter equally as much in ensuring that the best
results can be derived from the samples
collected. We record with some sadness that
there are quite a few cases in which DNA
evidence, despite being there, has to be rejected
for the reason that the manner, in which the
samples were handled during and after
collection by the concerned doctor, in transit to
the lab, inside the lab and the results drawn
therefrom, are not in accordance with the best
possible practices which would focus on ensuring
that throughout this process, the samples
remain in pristine, hygienic and biologically
suitable conditions.
32. One such instance where DNA evidence had
to be rejected, fairly recently, was a three-Judge
Bench decision in Manoj -Vrs.- State of M.P. :
(2023) 2 SCC 353. The Appellants in the said
case had been sentenced to death by the 1st
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Additional Sessions Judge, Indore, for the
murder in the course of the robbery of 3 women.
Ultimately, the Court commuted the death
sentence to life imprisonment with a minimum
25 years sentence; while dealing with such
evidence, it made detailed references to a 2007
paper titled DNA Profiling In Justice Delivery
System published by the Central Forensic
Science Laboratory, Kolkata and the previous
judgments of this Court wherein the topic of
DNA has been dealt with, as also the 185th
report of the Law Commission of India. In this
case, DNA was rejected on the ground that
recovery, which was affected, was made from an
open place, and the likelihood of its
contamination cannot be ruled out. It is also
observed that the bloodstains found on the
articles were disintegrated, and the quantity was
insufficient to run any classification tests.
33. Rahul (supra) was a case concerning the
kidnap, rape and murder of a woman, wherein 3
persons were convicted by the Special Fast-
Track Court, Dwarka Courts in Sessions Case
No.91 of 2013. These persons had kidnapped a
woman as she returned from work, proceeded to
do horrible things to her, and then dumped her
lifeless remains in a field, from where it was
discovered four days later. The DNA evidence,
here, was rejected because it remained in the
police Malkhana for two months and in such
Page 88 of 95
time, the possibility of tampering could not be
ruled out. It was also held that neither the Trial
Court nor the High Court had examined the
underlying basis of the findings in the DNA
reports or whether the techniques used had
been reliably applied by the concerned expert.
As such, it was concluded that the DNA profile,
in the absence of such evidence, had become
highly vulnerable when the collection and
sealing of the samples sent for examination was
not free from suspicion.
34. Prakash Nishad -Vrs.- State of
Maharashtra : (2023) 16 SCC 357 was a case
concerning the rape and murder of a 6-year-old
child. Similar to the present case, it was a case
of circumstantial evidence. Based on the
disclosure statement made by the Appellant
therein, the police found certain garments as
also traces of semen of the Appellant on the
vaginal smear of the minor victim, based on
which he was sought to be convicted. DNA
evidence had to be rejected by this Court on the
grounds that there was a delay in sending the
samples to the FSL, which was unexplained. It
was observed that because of the delay, the
concomitant prospect of contamination could not
be ruled out. The need for expediency in sending
samples to the concerned laboratories was
underscored.
Page 89 of 95
35. This case, incidentally, if not unfortunately,
is another one of the like of the above. Despite
the presence of DNA evidence, it has to be
discarded for the reason that proper methods
and procedures were not followed in the
collection, sealing, storage, and employment of
the evidence in the course of the Appellant-
convict's conviction. DNA, as we have observed,
has been held to be largely dependable, even
though this evidence is only of probative value,
subject to the condition that it is properly dealt
with. Over the past decades, many cases have
come to their logical conclusion with the aid of
DNA evidence in many regions across the world.
It is also equally true that many persons
wrongly convicted have finally had justice
served, with them being declared innocent
because of advancements in this technology. It
is unfortunate that, alongside such
advancements, we still have cases where,
despite the evidence being present, it has to be
rejected for the reason that the concerned
persons, either doctors or investigators, have
been careless in the handling of such sensitive
evidence."
The learned trial Court in the impugned judgment
after noting down the findings in the DNA test report jumped to
the conclusion that from the scientific analysis of DNA report, it
is crystal clear that both the appellants have the involvement in
Page 90 of 95
the murder of deceased Biranchi Nayak and Naba @ Ekalabya
Nayak. There is no discussion in the impugned judgment relating
to the proper sealing of the exhibits after its seizure, safe
custody of the exhibits, absence of any explanation from the side
of the prosecution relating to delayed dispatch of the exhibits to
Court and the effect of delay when most of the exhibits were
produced in unsealed condition.
In view of the foregoing discussions, we are of the
view that the DNA test report findings cannot be used against
the appellants.
Sum up:
19. The learned trial Court has held that so far as the
kidnapping of the minor deceased Naba @ Ekalabya Naik is
concerned, from the circumstantial evidence, the prosecution
has proved that the said deceased was kidnapped from the
lawful custody of his parents and subsequently his murder was
committed inside the jungle from where the dead body was
found. After careful analysis of the materials on record, we do
not find either any direct evidence or circumstantial evidence in
that regard. There is no evidence on record like last seen of the
two deceased i.e. Tarani Naik or Naba @ Ekalabya Naik in the
company of any of the appellants or kidnapping of the minor
Page 91 of 95
deceased Naba @ Ekalabya Naik by the appellants. Therefore,
the conviction of the appellants under section 364/34 of I.P.C. is
totally misconceived.
Merely at the instance of the appellants, one Katuri
and some other articles as per seizure lists Exts.1/2, 4, 19 and
21 were stated to have been seized, cannot be a ground to come
to a conclusion that the appellants caused disappearance of
evidence of offence by concealing the same unless it is
established by cogent evidence that those articles have got any
link with the offence committed. The prosecution in this case has
failed to establish such aspect. We have already held that no
importance is to be attached to the seizure of articles at the
instance of the appellants as its safe custody after its seizure
before it reached S.F.S.L. is a doubtful feature, seal impressions
are found missing in relevant seizure lists, the relevant exhibits
were not produced in sealed conditions in Court as per
forwarding report, order sheet of Court does not indicate that
the articles were in sealed condition and that for the reasons
assigned, the DNA test report cannot be used against the
appellants. When the incriminating articles stated to have been
seized at the instance of the appellants cannot be used as
evidence in the case against the appellants for the reasons
Page 92 of 95
assigned, it cannot be said that the appellants have caused
disappearance of evidence merely at their instance those were
recovered. Thus, the conviction of the appellants under section
201/34 of I.P.C. is not sustainable in the eyes of law.
There is also no clinching evidence relating to the
involvement of the appellants in the commission of triple murder
and therefore, the conviction of the appellants under section
302/34 of I.P.C. is liable to be set aside.
Conclusion:
20. In view of the evidence available on record, we are
not in a position to accept that the prosecution has established
its case against the appellants beyond all reasonable doubt. The
reasoning assigned by the learned trial Court in convicting the
appellants seems to be based on conjecture and suspicion which
has got no place in the matter of legal proof of guilt of accused
persons in a criminal trial and we are of the view that the
impugned verdict is nothing but a sheer moral conviction. Thus
we hold that the prosecution has failed to establish the charges
against the appellants beyond all reasonable doubt.
We are conscious that grave and heinous crime has
been committed and the culprits whosoever they may be, have
taken away the lives of three persons including a minor boy aged
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about 7 years and his parents in an extremely brutal manner,
but when there is no satisfactory proof of the guilt of the
appellants and that in view of well settled principle of criminal
jurisprudence, the Court must always remind itself that more
serious the offence, the stricter is the degree of proof and that
higher degree of assurance would be necessary to convict an
accused, we have no other option but to give the benefit of
doubt to the appellants and we are constrained to do so in this
case.
In the result, the criminal appeal is allowed. The
appellants are acquitted of the charges under sections
302/364/201/34 of I.P.C. The appellants, who are in jail custody,
shall be set at liberty forthwith, if their detention is not required
in any other case.
21. Accordingly, the Criminal Appeal is allowed. The
death sentence reference is answered in negative.
Before parting with this case, we would like to put on
record our deep appreciation to Mr. Satya Ranjan Mulia, Mr.
Ramesh Ch. Maharana, learned counsel for the appellants so also
Mr. Pradip Kumar Panda, learned Amicus Curiae for the
preparation and presentation of the case and assisting the Court
in arriving at the decision above mentioned. This Court also
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appreciates the able assistance provided by Mr. Debashis
Tripathy, learned Addl. Govt. Advocate. The hearing fees is
assessed to Rs.10,000/- (rupees ten thousand) in toto which
shall be paid to the learned Amicus Curiae immediately.
The trial Court records along with a copy of the
judgment be sent forthwith to the Court concerned and a copy of
the judgment be communicated to the D.L.S.A., Angul so that
the victim compensation amount of Rs.30,00,000/- (rupees
thirty lakh) which was directed to be paid to the minor daughter
of deceased Biranchi Naik, namely Saina, shall be paid
immediately, if not already paid.
...........................................
S.K. Sahoo, J.
S.S. Mishra, J. I agree.
…………………………………….
S.S. Mishra, J.
Orissa High Court, Cuttack
The 21st July 2025/Pravakar/Sipun/Rajesh
Signature Not Verified
Digitally Signed
Signed by: PRAVAKAR NAYAK
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 21-Jul-2025 12:19:37
Page 95 of 95
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