Kiran Raj

The Orissa High Court Division Bench comprising Justice Bibhu Prasad Routray and Justice Chittaranjan Dash dismissed a criminal leave petition filed by the State of Odisha challenging an order of acquittal. The Court held that the prosecution, relying on circumstantial evidence alone, failed to establish a complete and cogent chain linking the accused to the offence under Sections 364, 376(2)(f), 302 and 34 of the Indian Penal Code. The Bench observed that the last-seen theory lacked corroborative evidence, and that conduct, past allegations, and police dog tracking, in the absence of legally admissible support, could not be treated as conclusive. The Court declined to interfere with the findings of the trial court and dismissed the petition on merits.

The State of Odisha had filed the present petition seeking leave to appeal against the judgment and order dated 7 January 2005 passed by the Adhoc Additional Sessions Judge, F.T.C. No-I, Bhubaneswar in S.T. No. 30/292 of 2003. The trial court had acquitted both respondents of the charges arising out of Lingaraj P.S. Case No. 76/2003.

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The case stemmed from an incident on the night of 1 May 2003, during the pratistha ceremony of a newly constructed Shiva temple in Gangeswarpur Sasan. Children from the village were playing near the temple when the deceased minor girl failed to return home. A search was conducted throughout the night, and the next morning her body was found in a dried pond amid Amari bushes, bearing visible injuries on her face, neck, and private parts.

On registration of the FIR, P.W.22, the investigating officer, conducted an inquest and requisitioned a police dog and a scientific officer. The dog was given a scent and allegedly tracked a route from the crime scene to the complainant’s house, passing the cabin of Respondent No.1. The I.O. seized items including bloodstained leaves and the deceased’s clothing. Respondent No.1 was also alleged to have committed previous offences of sexual misconduct and maintained an illicit relationship in the village. Respondent No.2 was described as a close associate of Respondent No.1 and was reportedly seen with him on the night of the incident, consuming intoxicants near the riverbank.

Following the post-mortem and forensic queries, both accused were arrested and their clothes seized for examination. A charge sheet was submitted on 16 September 2003 against both accused. The prosecution examined 22 witnesses during trial. The trial court acquitted both accused on grounds of insufficient evidence, prompting the State to file the current petition.

The Court began by noting that the case was based entirely on circumstantial evidence. It referred to the five guiding principles laid down in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, and other precedents including Hanumant v. State of Madhya Pradesh and Shivaji Sahabrao Babode v. State of Maharashtra, affirming that conviction based on circumstantial evidence requires the establishment of a complete and unbroken chain that excludes every other hypothesis.

One of the core circumstances relied upon by the prosecution was the last-seen theory. Reference was made to Satpal v. State of Haryana, (2018) 6 SCC 610, where it was held that such theory must be supported by other circumstances including proximity in time. In the present case, the Court observed that the key witness, P.W.2, later turned hostile and admitted under cross-examination that due to darkness he could not see clearly and eventually went home. The time gap between the alleged last sighting and the discovery of the body was substantial. The Court stated that the evidence failed to establish that the deceased was last seen in the company of the respondents in close temporal proximity to her death.

The prosecution next pointed to the behaviour of Respondent No.1 during the search for the missing child. It was alleged that he had failed to assist and made remarks such as “Tu kan amba khojuchu?”, suggesting indifference. The Court found that while the remark may appear inappropriate, there was no direct link to the offence. It recorded: “Mere non-participation in the search for a missing person does not automatically lead to the inference of guilt unless it is coupled with other incriminating circumstances forming a complete chain of evidence.”

The Court then evaluated the past conduct of Respondent No.1, particularly allegations made by P.W.8 about an incident that allegedly took place three years prior. P.W.8 claimed that Respondent No.1 had raped her in a half-built temple. However, no formal complaint had ever been lodged, and no corroborative evidence or supporting witness was produced. The Court held: “Past conduct or bad character cannot be used as substantive evidence of guilt in a separate crime unless it is part of a larger chain of circumstances that leads to the inescapable conclusion of the accused’s guilt.”

Turning to the dog tracking evidence, the Court acknowledged that the police dog had allegedly traced a scent from the crime scene to the complainant’s house and then to Respondent No.1’s shop and a nearby tubewell. However, the Court noted several shortcomings. Citing Abdul Rajak Murtaja Dafedar v. State of Maharashtra, AIR 1970 SC 283, the Court observed: “The dog is a mere ‘tracking instrument’ rather than a witness, with the handler reporting the dog’s behaviour.” It further stated: “The prosecution did not present evidence of the dog’s training, skill, or past performance to establish its reliability… The police dog evidence, in the instant case, is unreliable in the absence of corroboration.”

The investigation was also found lacking in forensic support. Although clothing and materials were seized from the crime scene and the respondents, the chemical examination report (Ext.13) did not detect any incriminating trace. The Court recorded: “There is no evidence of the presence of blood, semen, or any other incriminating material on the Respondents’ clothing or at the locations identified during the investigation.”

In evaluating all the circumstances together, the Court concluded: “The circumstances presented are neither cogent individually nor do they form an unbroken chain pointing solely to the guilt of Respondent No.1. There is no direct evidence linking him to the crime, nor has the prosecution successfully established a motive.”

Regarding Respondent No.2, the Court observed that his mere association with Respondent No.1 and alleged gestures were insufficient to establish criminal liability. It stated: “No independent evidence links Respondent No.2 to the crime, nor has the prosecution demonstrated any active role played by him.”

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After considering the evidence and arguments, the Court upheld the trial court’s acquittal order. It stated:

“The prosecution has failed to establish a cogent and unbroken chain of circumstances linking the Respondents to the crime, under Sections 364, 376(2)(f), 302, and 34 of the IPC beyond reasonable doubt.”

It further observed:

“The judgment of the learned Adhoc Addl. Sessions Judge, F.T.C. No-I, dated 07.01.2005, acquitting the Respondents does not warrant interference and is liable to be upheld.”

The Court accordingly ordered:

“The Criminal Leave Petition is dismissed on merit upon question of admission.”

Advocates Representing the Parties

For the Petitioners: Mr. S. B. Mohanty, Additional Government Advocate
For the Respondents: Ms. A. Mishra, Advocate, Mr. P. Jena, Advocate

Case Title: State of Odisha v. Pratap Kr. Das & Anr.
Neutral Citation: 2025:ORIHC:1746
Case Number: CRLLP No. 53 of 2006
Bench: Justice Bibhu Prasad Routray, Justice Chittaranjan Dash

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