The judgment establishes the principles of proving a case based on circumstantial evidence and emphasizes the importance of establishing guilt beyond all reasonable doubt.

JUDGMENT

Dr. S. Muralidhar, CJ. - This appeal is directed against a judgment dated 16th April, 2005 passed by the Addl. Sessions Judge, Boudh in S.T. No.9 of 2004 and S.T. No.32 of 2004 (B) D.C. convicting the Appellant for the offence punishable under Section 302 IPC and sentencing him to rigorous imprisonment (RI) for life.

2. By an order dated 28th September, 2015 this Court enlarged the Appellant on bail during pendency of the appeal.

3. The case of the prosecution is that at around 3.30 pm on 23rd November, 2003 in village Champapur, Dist-Boudh inside the house of one Basant Mallick (PW-1), the Appellant cut the throat of the deceased Kalas Mallick. There was an instant death of the deceased. The Appellant is said to have fled away from the spot with the weapon of offence.

4. During investigation, the Investigating Officer (IO) Mrutyunjay Sahoo (PW 9) seized a blood-stained lungi from the bhadi, examined certain other witnesses and held inquest over the dead body of the deceased. Later he sent the dead body of the deceased for post-mortem and seized certain incriminating materials. On completion of investigation, a chargesheet was filed. The Appellant denied his guilt and claimed trial. He claimed that he had made a statement under Section 27 of the Indian Evidence Act under threat and that the knife had been planted on him by the Accused.

5. Eleven witnesses were examined by the prosecution. PW 1 i.e. the informant who claimed to be the husband of the deceased; PW 2 was the seizure witness ; PW 3 was a witness to the inquest and discovery of the weapon of offence at the instance of the Accused and PW 4, Dr. Susanta Kumar Garanaik, conducted the post- mortem.

6. Nandakishore Dhal (PW 7) and Astami Mallik (PW 8), who purportedly were eyewitnesses to the occurrence, turned hostile. PW 10 was the post occurrence witness and PW 11 was the photographer, who on instruction of the IO, took photographs of the scene of crime. No witnesses were examined for the defence.

7. On an analysis of the evidence, the trial Court concluded that the prosecution had proved the case against the Appellant beyond all reasonable doubt and accordingly, convicted him for the offence punishable under Section 302 of IPC and sentenced him in the manner indicated above.

8. This Court has heard the submissions of Mr. R.K. Rout, learned counsel for the Appellant and Mr. J. Katikia, learned Additional Government Advocate for the State (Respondent).

9. Although the case of the prosecution was based on direct evidence, in the form of the testimony of the eye witness PW-7, she turned hostile. Nevertheless, this case could still be proceeded with as one of circumstantial evidence. The settled legal position in that regard is as follows. In Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, the Court noted that the circumstances 'must or should be' established and not 'may be' established. It was stated that:

'19 Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.'

10. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, five principles were laid down to prove a case based on circumstantial evidence:

'153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complet