Orissa HC Acquits Murder Convict After 11 of 15 Prosecution Witnesses Turn Hostile, Contradictions Undermine Sole Eyewitness

The Orissa High Court set aside a 2003 life-sentence conviction under Section 302 IPC, finding the prosecution case riddled with reasonable doubt after key witnesses resiled and ocular evidence contradicted itself.

A Division Bench of the Orissa High Court on 23 June 2026 acquitted Babu Das of murder, setting aside his conviction and life sentence imposed by the Additional Sessions Judge (Fast Track Court), Chatrapur on 31 October 2003. The bench, comprising Justice Manash Ranjan Pathak and Justice Sashikanta Mishra, allowed the criminal appeal filed under Section 374(2) of the Code of Criminal Procedure after finding that 11 of the 15 prosecution witnesses had turned hostile, the two remaining ocular witnesses contradicted each other on a material point, and the trial court had impermissibly shifted the burden of proof to the defence. The conviction under Section 302 IPC and the sentence of life imprisonment, along with a fine of Rs. 500/-, were quashed in their entirety.

The Killing of Natabara Gouda and the Case Against Babu Das

The prosecution alleged that on 28 May 2002 at around 6:00 P.M., the deceased Natabara Gouda — a resident of village Saru known for practising jhada phunka (a form of faith healing) — was returning to his village on a bicycle with PW-11 Bijaya Behera after treating the latter's ailing daughter in village Punarakhandi. Near Majhi Sahi Chhaka of village Saru, the accused Babu Das intercepted them. Suspecting that the deceased had practised witchcraft against him and his brother, the accused allegedly struck the deceased with a lathi.

PW-11 stated that he fled the spot out of fear, leaving behind his bicycle and the deceased, and then informed PW-12 — the son of the deceased — about the assault. PW-12 claimed he came to the spot and found the accused dragging and assaulting his father towards Bauri Sahi. The deceased subsequently fell near the backyard of the house of one Ashok Das and died of his injuries.

PW-12 lodged the FIR, on the basis of which P.S. Case No. 59(14) of 2002 was registered under Sections 302, 294, 341 and 323 IPC. During investigation, the accused was arrested and, while in police custody, gave a statement leading to the discovery of a lathi said to be the weapon of offence. A charge-sheet was filed solely for the offence under Section 302 IPC. The accused denied the charge entirely and pleaded alibi, claiming he was in his in-laws' village on the day of the occurrence.

Trial Court's Findings and the Grounds of Appeal

The trial court convicted Babu Das after examining 15 prosecution witnesses and 21 documents, along with six material objects. It found PW-11's account of the interception credible and PW-12's testimony natural and trustworthy, noting that PW-12 had reached the spot immediately after being informed and had seen the accused dragging and assaulting the deceased. Medical evidence regarding the nature of injuries was treated as corroboration. The alibi plea was rejected for want of convincing evidence.

Before the High Court, Mr. B.R. Mohanty, appearing as amicus curiae for the appellant, raised five specific grounds: PW-11 had not supported the prosecution case; the conviction rested on the solitary evidence of PW-12, an interested and related witness; the discovery of the lathi was doubtful because seizure witnesses had not supported the prosecution; the chemical examination report did not show blood of the deceased on the seized lathi; and the scribe of the FIR had not been examined.

Ms. Suvalaxmi Devi, Additional Standing Counsel for the State, countered that the testimony of related witnesses cannot be discarded solely on the ground of relationship if it is otherwise credible. She argued that PW-12's evidence was corroborated by medical evidence, that the discovery of the weapon at the accused's instance remained a relevant incriminating circumstance even if seizure witnesses turned hostile, and that non-detection of blood on the lathi and non-examination of the FIR scribe were not fatal to the prosecution.

How the Bench Analysed the Ocular Evidence

Justice Sashikanta Mishra, writing the judgment (with Justice Manash Ranjan Pathak concurring), began with a stark finding: 11 of the 15 prosecution witnesses — PWs-1 to 11 — had turned hostile, rendering their evidence of no value to the prosecution.

The bench examined PW-11's position with care. Before the Investigating Officer and in a statement recorded under Section 164 of the Code of Criminal Procedure before a Magistrate, PW-11 had named the accused as the assailant. Before the court, he changed his version. The bench found he was “hiding the truth” and could not be treated as a reliable witness. What PW-11 did confirm, however, was that after the occurrence he went to the house of the deceased and informed PW-12, and that when he returned to the spot with PW-12, the bicycle was lying on the ground and the deceased was missing.

This last detail became the pivot of the bench's reasoning. PW-12 claimed he reached the spot and found the accused taking the deceased towards Bauri Sahi while assaulting him with a lathi. Yet PW-11's account placed the deceased as already missing when both of them arrived at the spot. The two versions were directly contradictory on whether the deceased and the accused were even present at the location when PW-12 arrived. The bench held that this apparent contradiction raised considerable doubt about the veracity of both witnesses, neither of whom could be treated as reliable.

PW-12 also claimed he saw his father lying dead near the backyard of the house of Ashok Das in Bauri Sahi. Ashok Das was never examined by the prosecution. The bench treated this as a further gap in the evidence.

Medical Evidence, Weapon Recovery, and the Last-Seen Theory

The autopsy surgeon, PW-13, found nine injuries on the body of the deceased, including multiple parallel bruises across the chest, back, and limbs, a compound fracture of the upper end of the right ulna with a communicating lacerated wound, and abrasions on both legs. PW-13 opined that injury No. 2 — five parallel bruises on the back over the right scapular area — along with the corresponding internal injury, was sufficient to cause death in the ordinary course of nature and was caused by successive blows from a hard and blunt object. The defence did not dispute the homicidal nature of death.

The bench accepted that the medical evidence established a homicidal death consistent with lathi blows. However, it held that medical evidence alone cannot establish the authorship of the crime, and since the ocular evidence had failed, the medical findings could not fill the gap.

On the weapon recovery, the bench noted that the seizure witnesses had not supported the prosecution. In the absence of corroboration from independent sources, the disclosure statement and the consequent recovery of the lathi could not be relied upon.

The last-seen theory pressed by the prosecution also failed. The contradiction between PW-11 and PW-12 on whether the accused and the deceased were present at the spot when they arrived meant there was no reliable evidence of anyone having seen the accused assaulting the deceased and taking him towards Bauri Sahi. The only fact that emerged from the evidence was the discovery of the dead body in the backyard of Ashok Das's house.

Trial Court's Error in Shifting the Burden

The bench identified a further legal infirmity in the trial court's approach. After reviewing the impugned judgment, it found that the trial court had “shifted the burden at times to the defence,” which the bench held “cannot be countenanced in law.” The trial court had also failed to take note of the vital gaps in evidence and the apparent contradictions between the two key witnesses.

The bench concluded that the prosecution case was not free from reasonable doubt and that the benefit of that doubt must go to the accused. The impugned judgment and order of conviction and sentence dated 31 October 2003 was held to be not sustainable in law.

Outcome

CRLA No. 316 of 2003 was allowed. The conviction under Section 302 IPC and the sentence of life imprisonment with a fine of Rs. 500/- imposed by the Additional Sessions Judge (Fast Track Court), Chatrapur were set aside and quashed. The accused appellant was noted to be on bail; his bail bond was directed to be discharged if not required in any other case. The judgment was pronounced on 23 June 2026.