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SUPREME COURT OF INDIA
DIVISION BENCH
KUNA @ SANJAYA BEHERA — Appellant
Vs.
STATE OF ODISHA — Respondent
( Before : N.V. Ramana and Amitava Roy, JJ. )
Criminal Appeal No. 677 of 2010
Decided on : 17-11-2017
Penal Code, 1860 (IPC) - Section 302, Section 34
Penal Code, 1860—Sections 302/34—Murder—Common intention—Circumstantial evidence—
Motive plays an important part in order to tilt scale—PW1 is solitary eye witness to incident—He is
related both to deceased and accused-appellant—Medical evidence though conforms to manner of
execution of offence, in view of inherent improbabilities and incongruities in his evidence, it is not
safe to base conviction of appellant and co-accused thereon—De hors testimony of PW1 and motive
as alleged by prosecution, there is no other tangible and clinching material on record in support of
charge against appellant and co-accused—Appellant and co-accused are entitled to benefit of doubt
—Appellant acquitted.
Evidence Act, 1872—Section 34—Number of witnesses—Conviction can be based on a testimony of a
single eye witness if he or she passes test of reliability—It is not number of witnesses but quality of
evidence that is important.Evidence Act, 1872—Section 3—Proof of fact—Expression “proved”,
“disproved” and “not proved”, lays down standard of proof, about existence or non-existence of
circumstances from point of view of a prudent man, so much so that while adopting said
requirement as an appropriate concrete standard to measure “proof”, full effect has to be given to
circumstances or conditions of probability or improbability—It is this degree of certainty existence
of which should be arrived at from attendant circumstances before a fact can be said to be proved.
Counsel for Appearing Parties
Dharmendra Kumar Sinha, Advocate, for the Appellant; Shibashish Misra, Advocate, for the Respondent
Cases Referred
Anil Phukhan Vs. State of Assam, (1993) 3 SCC 282
Budha Satya Venkata S. Rao Vs. State of A.P., (1994) Sup 3 SCC 639
Chuhar Singh Vs. State of Haryana, (1976) 1 SCC 879
Gulam Sarbar Vs. State of Bihar, (2014) 3 SCC 401
Lokeman Shah Vs. State of West Bengal, AIR 2001 SC 1760
M. Narsinga Rao Vs. State of A.P., (2001) Crl.L.J. 515
Mahamadkhan Nathekhan Vs. State of Gujarat, (2014) 14 SCC 589
Nagraj Vs. State represented by Inspector of Police, Salem Town, Tamil Nadu, (2015) 4 SCC 739
Niranjan Panja Vs. State of West Bengal, (2010) 6 SCC 525
Ramji Surya Padvi Vs. State of Maharashtra, (1983) 3 SCC 629
State of A.P. Vs. Patnam Anandam, (2005) 9 SCC 237
Vijayee Singh Vs. State of U.P., (1990) 3 SCC 190
JUDGMENT
Amitava Roy, J.—The appellant, successively convicted by both the courts below along with one Pravati
Behera under Section 302 of the Indian Penal Code, 1860 (for Short, hereinafter to be referred to as
"IPC/Code") along with Section 34 of the Code is in appeal seeking remedial intervention.
2. Whereas the Trial Court by the judgment and order dated 26.1.2001, as stated hereinbefore, convicted
the appellant and the co-accused Pravati Behera, the High Court by the verdict impugned, though has
affirmed the conviction of both, had left the co-accused at liberty to move an application for premature
release from the jail and for appropriate orders under Sections 433 and 433-A of the Code of Criminal
Procedure, 1973 (for short, hereinafter to be referred to as "Cr.P.C."). Noticeably, the appellant and co-
accused had been charged along with Section 302 IPC for the offence under Section 203 as well but were
acquitted thereof by the Trial Court. Though an appeal was preferred by the State against such acquittal,
the High Court has affirmed their exoneration as well.
3. We have heard Mr. Krishnan Venugopal, learned senior counsel for the appellant and Mr. Shibashish
Misra for the respondent.
4. The prosecution case unfolds with a written information lodged by Premananda Behra (PW12) with the
police on 20.2.2000, whereby the unnatural death of his brother Santosh Behera by hanging from the roof
of a shed adjacent to his (deceased) house, was reported. In the course of the investigation, following the
registration of said information, Niranjan Behera (PW1) disclosed to Daitari Behera (PW5) that the
appellant along with the co-accused Pravati Behera had in the intervening night of 19/20.2.2000 murdered
the deceased in his house and thereafter had suspended his dead body from the roof of the nearby shed.
PW1 claimed to have witnessed the incident of murder. Following this information, the investigation took a
different turn. The appellant and the co-accused were arrested and eventually, charge-sheet was laid
against them.
5. Notably, on 26.2.2000, Gunahari Behera (PW6) and Makhan Behera (PW8) also came to the police station
and reported that PW1 had disclosed to them as well to have witnessed the appellant and the co-accused
committing murder of Santosh Behera (deceased) in his house and thereafter, hanging the dead body from
the roof of the nearby shed. The investigating officer in the process of investigation, amongst others caused
the inquest of the dead body to be made, prepared a spot map Ex. P-11, effected seizure, amongst others
inter alia of a rope and also got the post-mortem of the dead body done before submitting the charge-sheet
as mentioned hereinabove. The formal FIR was registered on 26.2.2000 under Sections 302/203 read with
Section 34 IPC.
6. At the trial, the accused persons were charged under Sections 302/203/34 IPC. They having denied the
allegations, were made to stand trial. The prosecution examined as many as 16 witnesses, and after
recording the statements of the accused persons under Section 313 Cr.P.C., 1973 and on a consideration of
the materials on record, the Trial Court convicted the appellant and co-accused under Section 302 IPC read
with Section 34 of the Code and sentenced them to undergo imprisonment for life and to pay fine of Rs.
100/-, in default to suffer R.I. for 30 days.
7. In recording the conviction, the Trial Court laid utmost emphasis on the testimony of PW1, who apart
from narrating the incident of murder, also deposed about the extra-marital relationship between the
accused persons, though they were related as nephew and aunt. Reliance was also placed on the evidence of
Musimani Behera (PW3), the mother of the deceased, who, perceived to have hinted at well to this
unacceptable liaison. The Trial Court noted the opinion of Dr. Rupabhanu Mishra (PW11), who conducted
the post-mortem examination that the cause of death of Santosh Behera was asphyxia as a result of
constriction of the neck and not due to hanging by rope. The Trial Court, however discarded the
prosecution case of illicit relationship between the accused persons and the motive of murder stemming
therefrom. It was however of the view that lack of motive notwithstanding, the testimony of PW1, PW5,
PW6 and PW8 taken together proved the charge against the accused persons and, therefore, returned the
finding of guilt against them, qua the offences for which they had been charged.
8. Both the appellant and co-accused preferred separate appeals before the High Court and as hereinbefore
stated, by the decision assailed, their conviction under Section 302/34 IPC and the sentence awarded
thereupon was affirmed. The High Court, in determining so, sustained the prosecution's plea of motive of
murder founded on extra-marital relationship between the accused persons and arrived at the conclusion
drawing sustenance from the evidence of PW1 as well as PW3, the mother of the deceased, who testified to
have rebuked both of them for their deplorable conduct. The High Court, as well believed the version of the
incident, as narrated by PW1 and disclosed to PW5, PW6 and PW8 albeit after a lapse of three days. The
High Court accepted the explanation of PW1 for the delay in such disclosure that the appellant had
threatened him with dire consequences, if he did so.
9. Mr. Krishnan Venugopal, learned senior counsel for the appellant has emphatically urged that as the
testimony of PW1, the sole eye witness, as claimed by the prosecution, is wholly unbelievable, the
conviction of the appellant is palpably illegal and is liable to set-aside. Apart from contending that the FIR
filed after six days of the incident was inexplicably delayed rendering the prosecution case unworthy of any
credit, the learned senior counsel maintained that the High Court has grossly erred in accepting that the
motive behind the murder was the illicit relationship between the accused persons, necessitating the
elimination of the deceased. The learned senior counsel was particularly critical of the unnatural conduct
of PW1, who incomprehensibly remained indifferent and silent though his uncle was murdered in his view
and that the incident, according to him, ranged for about an hour. Further, his unexplained silence about
the gruesome murder by the accused persons for about three days also rendered him wholly untrustworthy,
he urged. Mr. Krishnan argued as well that not only PW1 at the relevant time was admittedly in an
intoxicated state, his presence at the place of occurrence was not free from doubt. The learned senior
counsel underlined that it being in the evidence that there were several houses of the close relatives of the
deceased and PW1 in the locality, the claim of PW1 to be a silent eye witness to the incident, is wholly
unbelievable. The learned senior counsel insisted as well that in absence of any material on record that the
area was sufficiently lighted, it was wholly unacceptable that PW1 could see the incident from his house at
a distance of 15 cubits. In the attendant facts and circumstances, Mr. Venugopal maintained that the
conviction of the appellant on the testimony of a solitary witness, whose version was laden with
inconsistencies, absurdities, and improbabilities, is patently illegal and cannot, in any view of the matter,
be sustained in law. He discarded the evidence of PW5, PW6 and PW8, relied upon by the two courts below,
on the ground that their testimonies were wholly inconsequential being in the nature of "hearsay", they
having derived the knowledge of the incident from PW1, as reported to them by him. Mr. Venugopal has
urged that if the version of PW1 is disbelieved, as it ought to be, in view of the inherent incongruities, the
other materials on record do not unerringly evince the complicity of the accused persons in the offence and
thus, the appellant is liable to be acquitted. He argued as well that the injuries enumerated in the inquest
report and the medical evidence/post-mortem report, also are inconsistent and contradictory in
description, thus rendering the prosecution version highly improbable. The learned counsel emphasised
that the evidence on record by no means convincingly establish the illicit relationship between the accused
persons and that the High Court did fall in error in accepting the same. The following decisions were cited
in endorsement of the arguments advanced.
1. Anil Phukhan v. State of Assam, (1993) 3 SCC 282
2. Ramji Surya Padvi and Another v. State of Maharashtra, (1983) 3 SCC 629
3. Chuhar Singh v. State of Haryana, (1976) 1 SCC 879
4. State of A.P. v. Patnam Anandam, (2005) 9 SCC 237
5. Mahamadkhan Nathekhan v. State of Gujarat, (2014) 14 SCC 589
6. Budha Satya Venkata S. Rao and Others v. State of A.P., 1994 Supp(3) SCC 639
7. Niranjan Panja v. State of West Bengal, (2010) 6 SCC 525
8. Nagraj v. State represented by Inspector of Police, Salem Town, Tamil Nadu, (2015) 4 SCC 739
10. In refutation, the learned counsel for the respondent-state has asserted that the evidence of the sole
eye witness PW1 is coherent, consistent and cogent and is fully complemented by medical evidence and
thus the prosecution having been able to prove the charge beyond all reasonable doubt, the conviction and
sentence of the appellant and his co-accused does not merit interference. Having regard to the vivid
narration of the incident in minute details, as provided by PW1, the courts below were perfectly justified in
relying on his sole testimony, he urged. As the medical evidence, mentioning the cause of death, is wholly
corroborative of the version of PW1, there is no scope to doubt the culpability of the accused persons, he
argued. The learned counsel dismissed the demur of the defence that the evidence of PW1 was vitiated by
contradictions, embellishments and inconsistencies. According to Mr. Misra, the statement on oath of PW1
is amply supported by that of Kumari Nomita Behera (PW2), the daughter of the deceased and PW12, who,
in the next morning, did detect the dead body of the deceased in a hanging posture from the roof of the
adjacent shed, as deposed by PW1. As the testimony of PW1 together with that of PW3, the mother of the
deceased persuasively prove the illicit relationship between the accused persons, the High Court was
justified in accepting the same to be the motive for the offence, in the attendant facts and circumstances of
the case, he insisted. The learned counsel for the respondent urged that as PW1 had been threatened with
death by the appellant, if he dared to disclose the commission of offence, the delay on the part of the
witness (PW1) to confide about the same in PW5, PW6 and PW8 after three days and the filing of the FIR
after six days per se, is not fatal for the prosecution. The decision of this Court in Gulam Sarbar v. State of
Bihar, (2014) 3 SCC 401 was cited to reinforce the contention that when ocular evidence is in conformity
with the medical evidence, conviction based thereon is legal and valid.
11. To appropriately appreciate the competing assertions, it is expedient to evaluate the evidence having a
direct bearing on the offence allegedly committed for the offence involved. PW1, who is the cousin brother
of the appellant and incidentally the nephew of the co-accused Pravati Behera, deposed on oath that there
was a lingering love affair between the accused persons from before the occurrence and that he had seen
them in a compromising position in the house of the deceased, six months' prior to the incident. The
witness stated that he informed about this to the mother of the deceased, who rebuked the accused
persons. He stated that in the night of occurrence at 9.30 p.m., he had gone to witness a video show in the
village, where the children of Parvati Behra, the co-accused were also present. According to him, in the
course of the show, the appellant asked him to accompany him for liquor and though the witness initially
resisted, he eventually left the video show with the appellant. He stated further that they then went to the
house of Baisakhu Behera, where the appellant purchased liquor and consumed the same and forced the
witness as well to drink. The witness stated that they then proceeded towards their respective homes and
when they were nearing their houses, the appellant concealed himself in a lane near the house of the
witness. PW1 stated that at that time, he saw the deceased and Pravati Behera coming out of their house to
ease themselves. On their way back to the house, Pravati Behera entered first and when the deceased was
about to enter, the appellant struck him twice from the back, as a result of which, he (deceased) fell down.
According to the witness, the appellant sat on the chest of the deceased and pressed his neck by his hands
and Pravati Behera covered his mouth with her hands, as a result of which the deceased soon became
suffocated and died. The witness stated that thereafter the accused persons brought a rope, tied it around
the neck of the deceased and suspended the dead body from the roof of the adjacent shed. Thereafter, the
appellant locked Pravati Behera in the house from outside and threatened to kill him, if he disclosed the
offence to anyone, whereafter the witness returned home. PW1 stated that it was three days thereafter that
he narrated the incident to PW5, PW6 and PW8.
12. In cross-examination, the witness in substance stated that his house, that of the deceased, PW12 and
other relatives were located nearby and that the courtyard in between his house and that of the deceased
measured about 15 cubits. The witness conceded that there were about 150 to 200 houses adjacent to his
house, situated at a distance of 20 to 25 cubits. He further stated that at that point of time, he was little
intoxicated, and he was then inside his compound. PW1 deposed as well that though the occurrence took
place for about an hour, he did not raise any alarm asking for help. He admitted that on the next day,
though about 5000 people had gathered, he did not disclose the incident either to them or to the police. He
however sought to explain his conduct by stating that he did not do so as he had been threatened by the
appellant but after three days, he gathered courage and informed PW5, PW6 and PW8 of the incident.
13. PW3, the mother of the deceased deposed that she had rebuked the accused persons on several
occasions on noticing "secret talks' between them. The testimony of PW5 and PW6 in essence is that on
20.2.2000, PW1 disclosed to them the incident and the fact that he had witnessed the same. PW8 stated
that about 5/6 days after the incident, when he asked PW1 about the same, he disclosed to him stating that
the appellant and Pravati Behera had committed murder of Santosh Behera. To all these three witnesses, as
stated by them, PW1 disclosed in sequence the facts, as narrated by him on oath.
14. Dr. Rupabhanu Mishra (PW11), who performed the post-mortem examination on the dead body of the
deceased had apart from mentioning the external injuries by way of abrasions etc. opined that death was
due to asphyxia by pressing of neck and was not due to hanging by rope. PW12, as already alluded to
hereinabove, stated on oath that on 20.2.2000, he had gone to the house of the deceased to hand over the
keys of his Sweet Meat Shop, where the deceased was employed, but was told by his wife from inside the
house that he (deceased) had gone out by locking the door from outside. The witness stated that it was
then 5/5.30 a.m. and when he returned with his torch light, he detected the dead body of Santosh Behera
hanging from the roof of adjacent shed by a rope. He then requested PW5 to write a report which he
thereafter lodged with the police. S.I. Narendra Kumar Sarangi (PW16) is the Investigating Officer, who
enumerated the steps taken by him during the investigation and proved amongst others Ex P-11, the spot
map.
15. The accused persons in response to the questions, laying the incriminating evidence against them
denied the correctness thereof and stood by their plea of innocence.
16. Before recording the final conclusions on the basis of the evidence on record, beneficial it would be to
briefly note the legal propositions enunciated in the authorities cited at the Bar.
17. That conviction can be based on a testimony of a single eye witness if he or she passes the test of
reliability and that it is not the number of witnesses but the quality of evidence that is important, have
been propounded consistently in Anil Phukhan, Ramji Surya, Patnam Anandam and Gulam Sarbar with the
apparent emphasis that evidence must be weighed and not counted, decisive test being whether it has a
ring of truth and it is cogent, credible, trustworthy or otherwise.
18. That in a case where the charge is sought to be proved only on circumstantial evidence, motive plays an
important part in order to tilt the scale was, amongst others underscored in Mohmadkhan Nathekhan.
19. With reference to Section 3 of the Evidence Act, which defines "proved", "disproved" and "not proved",
this Court in Lokeman Shah and another v. State of West Bengal, AIR 2001 SC 1760 recalled its observations
in M. Narsinga Rao v. State of A.P., 2001 Crl.L.J. 515 as hereinbelow:
"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist
or considers its existence so probable that a prudent man ought under the circumstances of a particular
case, to act upon the supposition that it exists, (vide Section 3 of the Evidence Act). What is required is
materials on which the court can reasonably act for reaching the supposition that a certain fact exists.
Proof of the fact depends upon the degree of probability of its having existed. The standard required for
reaching the supposition is that of a prudent man acting on any important matter concerning him."
20. Prior thereto, in Vijayee Singh and others v. State of U.P.,: (1990) 3 SCC 190 this Court dwelling on the
same theme, had recorded the following exposition:
"28. It can be argued that the concept of 'reasonable doubt' is vague in nature and the standard of 'burden of
proof' contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile
both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its
case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to
be borne in mind. The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3
while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of
proof, namely, about the existence or non-existence of the circumstances from the point of view of a
prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man
feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may
not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the
circumstances act on the assumption of its existence. The Act while adopting the requirement of the
prudent man as an appropriate concrete standard by which to measure proof at the same time
contemplates of giving full effect to be given to circumstances or condition of probability or improbability.
It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A
fact is said to be disproved when the court believes that it does not exist or considers its non-existence so
probable in the view of a prudent man and now we come to the third stage where in the view of a prudent
man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable
man, has legal recognition in the field of criminal disputes. It is something different from moral conviction
and it is also different from a suspicion. It is the result of a process of keen examination of the entire
material on record by 'a prudent man'."
21. The quintessence of the enunciation is that the expression "proved", "disproved" and "not proved", lays
down the standard of proof, namely, about the existence or non-existence of the circumstances from the
point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate
concrete standard to measure "proof", full effect has to be given to the circumstances or conditions of
probability or improbability. It has been expounded that it is this degree of certainty, existence of which
should be arrived at from the attendant circumstances, before a fact can be said to be proved.
22. It is on the touchstone of this legal exposition that the evidence in the case in hand, has to be
appreciated. Admittedly, PW1 is the solitary eye witness to the incident. He is related both to the deceased
and the accused-appellant. Whereas the deceased is his uncle, the appellant is his cousin brother. He claims
to have accompanied the appellant from the video show till the place of occurrence. At the relevant time,
he was admittedly intoxicated. The incident, as per the prosecution version, occurred between 1 a.m. to 2
a.m. in the intervening night of 19/20.2.2000 in the house of the deceased which was located about 15
cubits from the compound where the house of PW1 was situated. The spot map Ex. P-11 prepared by the
I.O. (PW16) noticeably does not mention about any source of light in the locality. It does not even indicate
as to whether the area was lighted at the time of incident so as to make the viewing of the incident possible
by PW1 from the place, where he was located. It is intriguing that though PW1 claimed that the duration of
the the incident was about one hour and that the appellant first did assault the deceased from behind twice
on which he (deceased) fell down, whereafter he (appellant) sat on his chest and throttled him and that co-
accused Pravati Behera covered the mouth of deceased to facilitate his suffocation to death, he did not
utter a sound or make a shriek or raise any alarm either to prevent the occurrence or to muster assistance
from the inhabitants in the locality. This is more so as he admitted that there were about 150 to 200
inhabitants, lodging nearby apart from the fact that the houses of his relatives as well of the deceased were
almost in the same campus. His plea that he did not disclose the incident to others immediately as he had
been threatened by the appellant does not explain or justify in any manner whatsoever his inexplicable
silence or indifference during the time of commission of occurrence. In the overall scenario, the plea of the
defence that the evidence of PW1 is highly improbable, absurd and doubtful, cannot be lightly brush aside
more particularly in view of the test of essentiality of the degree of certainty, necessary to accept that the
facts narrated by this witness as proved. To recall, the incident at the first place had been registered as a
case of unnatural death and was after six days of the occurrence converted into one under Sections
302/203/34 IPC against the appellant and the co-accused on the disclosures made by PW1, PW5, PW6 and
PW8. Apart from the fact that testimony of PW5, PW6 and PW8 can by no means be construed to be
substantive in nature, these witnesses having derived the knowledge from PW1, we are inclined to accept
the analysis of the materials on record on the aspect of motive as made by the Trial Court.
23. The testimony of PW1 with regard to the illicit relationship between the accused persons, his revelation
to the mother of the deceased that he and the co-accused were seen in a compromising position in their
house with the door open and the reprimand of the mother (PW3) for the "secret talks" between them
(accused persons) lack in persuasion to conclude that the prosecution had been able to prove such
relationship and therefore, the motive for the murder by them. The medical evidence to the effect that
death had occurred by asphyxia as a result of constriction of the neck and not due to hanging by rope,
though conforms to the manner of execution of the offence, as narrated by PW1, in view of inherent
improbabilities and incongruities in his evidence, we do not consider it safe to base the conviction of the
appellant and the co-accused thereon. Dehors testimony of PW1, and the motive as alleged by the
prosecution, there is no other tangible and clinching material on record in support of the charge against
the appellant and the co-accused. The inference of motive by the High Court drawn from the evidence of
PW1 and PW3, in the overall perspective as discussed hereinabove, is apparently flawed.
24. On a totality of the consideration of all relevant facts and circumstances, we are of the unhesitant
opinion that the evidence of PW1, as a witness of incident of murder, as projected by him is wholly
unacceptable being fraught with improbabilities, doubts and oddities inconceivable with normal human
conduct or behaviour and, thus cannot be acted upon as the basis of conviction. The testimonies of PW3,
PW5, PW6, PW8 and PW11, even if taken on their face value, fall short of the requirement of proof of the
charge beyond all reasonable doubt. The appellant and the co-accused are thus entitled to the benefit of
doubt in the singular facts and circumstances of the case. The contrary view taken by the courts below is
against the weight of the evidence on record and the exposition of law attested by the decisions cited at the
Bar and traversed as hereinabove.
25. In the result, the appeal succeeds and is allowed. As a consequence, the appellant is acquitted and is
ordered to be set at liberty if not required in connection with any other case.
