KUNA@ SANJAYA BEHERA versus THE STATE OF ODISHA
[2017] 11 S.C.R. 179, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[2017] l l S.C.R. 179 
KUNA@ SANJAYA BEHERA 
v. 
THE STATE OF ODISHA 
(Criminal Appeal No. 677 of20 IO) 
NOVEMBER 17. 2017 
[N. V. RA.MANA AND AMITAVA ROY, JJ. J 
Penal Code, 1860 - ss.302, 203 rlw. s.34 - Alleged extra-
marital relationship between appellant-accused and the co-accused 
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- Dead body of husband of co-accused found hanging from the 
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roof of a shed adjacent to deceased's house - PWJ (deceased'.~ 
nephew) was the sole eye-witness - Trial court convicted the 
appellant and co-accused uls.302 !PC rlw s.34, however, discarded 
the prosecution case of illicit relationship between accused persons 
and the same being the motive of murder - High Court affirmed the 
conviction, accepting the prosecutions plea of motive of murder D 
founded on extra-marital relationship between accused persons -
On appeal, held: Testimony of PW/ with regard to illicit relationship 
between the accused persons lacks in persuasion - Evidence of 
PW/ is unacceptable being fraught with improbabilities, doubts and 
oddities inconceivable with normed human conduct and, tlms cannot 
be the basis of conviction - In the present case, the incident at the 
fir.st place was registered as a case of wmatural death and ajier six 
days of the occurrence it was converted into one 11/s. 3021203134, 
on aie disclosures made by PWJ, PW5, PW6 and PW8 - Testimony 
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of PW5, PW6 and PW8 cannot be construed as substantive in nature, 
these witnesses having derived the knowledge from PWI -
Prosecution has failed to prove JI licit relationship between appellant 
and co-accused and therefore, t/1e motive for the murder by them -
Dehors the testimony of PW/ and the alleged motive, there is no 
other tangible and clinching material 011 record in support of.the 
charge against the appellant and the co-accused - Contrary view 
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taken by the Courts below is againsr the evidence on record -
Inference of motive drawn by the High Court is flawed - Appellant 
is entitled to benefit of doubt and is acquitted. 
Evidence Act. 1872 - s.3 - Fact -''proved", disproved" and 
"not proved""- Standard of proof" required for - Discussed. 
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[2017] ll S.C.R. 
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Evidence- Of sole eye-witness - Held: Conviction can be 
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based on the testimony of a single eye willless if he or she passes 
the rest of reliability - It is not the number of witnesses but the 
quality of evidence that is important. 
Allowing the appeal, the Court 
HELD: I.I Conviction can be based on a testimony of a 
single eye witness if he or she passes the test of reliability and it 
is not the number of witnesses but the quality of evidence that is 
important. 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.(Paras 17, 18](190-D-F) 
Mahamadkhan Nathekhan v. State of Gujarat {2014) 
14 SCC 589: (2014) 7 SCR 777 - relied on. 
1.2 The expression "proved", "disproved" and "not 
proved", lays down the standard of proof, about the existence or 
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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 "prool'', full effect 
has to be given to the circumstances or wnditions of probability 
or improbability. It is this degree of certainty, existence of which 
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should be arrived at from the attendant circumstances, before a 
fact can be said to be proved. (Para 2111192-B-C) 
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2.1 PWI is related both to the deceased and the accused-
appellant. Whereas the deceased was his uncle, the appellant is 
his
cousin brother. He claimed 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 la.m. to 2a.m. in the 
intervening night in the house of the deceased which was located 
about 15 cubits from the compound where the house of PWl was 
situated. The spot map prepared by the l.O. docs not mention 
about any source of light in the locality. It docs not even indicate 
as to whether the area was lighted at the time of the incident so 
as to make the viewing of the incident possible by PWl from the 
place, where he was locatt•d. Though PWl claimed that the
KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA 
181 
duration of the incident was about one hour, he did not utter a 
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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 was 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 
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the same campus. His pica that he did not disclose the incident 
to others immediately as he was 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. Further, the incident at the first place was registered 
as a case of unnatural death and was after six days of the 
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occurrence converted into one under Sections 302/203/34 IPC 
against the appellant and the co-accused on the disclosures made 
by PWl, PW5, PW6 and PW8. Apart from the fact that the 
testimony of PWS, PW6 and PW8 can by no means be construed 
to be substantive in nature, these witnesses having derived the D 
knowledge from PW 1, the analysis of the materials on record on 
the aspect of motive as made by the Trial Court is accepted. [Para 
22)(192-D-H; 193-A-C] 
2.2 The testimony of PWl with regard to the illicit 
relationship between the 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. 
[Para 23)(193-D] 
3. t 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 
exc·cution of the offence, as narrated by PWl, however in view of 
inherent 
improbabilities and incongruities in his evidence, it is 
not safe to base the conviction of the appellant and the co-accused 
thereon. Dehors testimony of PWl, 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 PWl and PW3, in the overall perspective, 
is apparently flawed. (Para 23][193-E-G] 
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3.2 On 11 totality of the consideration of all relevant facts 
and circumstances, it is opined that the evidence of PWI, as a 
witness of incident of murder, 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 appellant and the co-accused 
arc thus entitled to the benefit of doubt in lhe facts and 
circumstances of the case. [Para 24](193-H; 194-A] 
Anil Phukhan v. Sia1e of Assam (1993) 3 SCC 282 : 
[1993] 2 SCR 389; Ramji Surya Padvi and Ano/her v. 
Staie of Maharaslura (1983) 3 SCC 629 : (1983] 3 
SCR 268; Stale of A.P. v. Patnam Anandam (2005) 9 
SCC 237; Gu/am Sarbar v. State ofBihar (2014) 3 SCC 
401 : [2013] 12 SCR 1: Lakeman Shah and another v. 
Stale of Wes/ Bengal AIR 2001 SC 1760 : 12001] 2 
SCR 1095; Vijayee Singh and others v. Stale of U.P. 
(1990) 3 SCC 190 : (1990] 2 SCR 573 - relied on. 
A1. Narsinga Rao v. Slate of A.P. 2001 Crl.L.J. 515 -
approved. 
Chuhar Singh v. State of Hwyana (1976) l SCC 879; 
Budha Sa()Y1 Venkata S. Rao and Others v. Slate ofA.P. 
(1994) Suppl. 3 SCC 639; Niranjan Punja v. State of 
West Bengal (2010) 6 SCC 525 : 12010] 7 SCR 113; 
Nagraj v. State represented by Inspector of Police. Salem 
Town. Tamil Nadu (2015) 4 SCC 739 : 12015] 3 SCR 
450 - referred to. 
Case Law Reference 
(1976) 1 sec 879 
referred to 
Para 9
(1994) Suppl. 3 sec 639 
referred to 
Para 9 
(2010] 7 SCR 113 
referred to 
Para 9 
[2015] 3 SCR 450 
referred to 
Para 9 
[1993] 2 SCR 389 
relied on 
Para 17
.KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA 
183 
[1983] 3 SCR 268 
relied on 
Para 17 
c2005) 9 sec 237 
relied on 
Para 17 
[2013) 12 SCR 1 
relied on 
Para 17 
[20141 7 SCR 777 
relied on 
Para 18 
[2001) 2 SCR 1095 
relied on 
Para 19 
2001 Crl.L.J. 515 
approved 
Para 19 
[1990] 2 SCR 573 
relied on 
Para 20 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
677 of2010. 
From the Judgment and Order dated 07.11.2007 of the Hig.h Court 
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of Orissa in Criminal Appeal No. 129 of200 I. 
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Krishnan Venugopal, Sr. Adv., Shivcndra Singh, Ms. Dcepanshi 
Jshar, Dharmi:ndra Kumar Sinha, Advs. for the Appellant. 
Shibashish Misra. Ms. Sylona Mohapatra, Advs. for the 
Respondents. 
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The Judgment of the Court was delivered by 
AMITAVA ROY, J. I. The appellant, successively convicted 
by both the courts below along with one Pravati Bchera under Section 
302 of the Indian Penal Code, 1860 (for Short, hereinafter to be referred 
to as "lPC/Codc") along with Section 34 of the Code is in appeal seeking 
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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 
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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 
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appellant and co-accused had been charged along with Section 302 !PC 
for the offence under Section 203 as well but were acquitted thereof 
by the Trial Com1. 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, lcarned senior counsel 
for the appe!lant and Mr. Shibashish Misra for the respondent. 
4. The pro~ecution case mtfold~ with a written information lodged 
by Premananda Bchra (PWl2) 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 (PW I) disclosed to Daitari Bchcra (PW5) that the 
appellant along with the co-accused Pravati Bchcra had in the intervening 
night of 19/20.2.2000 mtu-dered the deceased in his house and thereafter 
had suspended his dead body from the roof of the nearby shed. PWl 
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 PW I 
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 ofa 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 !PC. 
6. At the trial, the accused persons were charged under Sections 
302/203/34 JPC. 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. and on a consideration of the materials on record, the Trial Court 
convicted the appellant and co-accused under Section 302 !PC read
KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA 
185 
[AMITAVA ROY. J.] 
with Section 34 of the Code and sentenced them to undergo imprisonment 
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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 PW!, 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 ofMusimani 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 
(PW!!), 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 PW!, 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 !PC 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 PW! 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 PW! and disclosed to PW5, PW6 and 
PW8 albeit after a lapse of three days. The High Court accepted the 
explanation of PW I for the delay in such disclosure that the appellant 
had threatened him with dire consequences, ifhe did so. 
9. Mr. Krishnan Venugopal, learned senior counsel for the appellant 
has emphatically urged that as the testimony of PW I, 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 
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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 unnatw11l conduct of PW 1, 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 untrustw011hy, 
he urged. Mr. Krishnan argued as well that not only PW I 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 PW 1 in the locality. the claim 
of PW I 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 PW I 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 PW I, as reported 
to them by him. Mr. Vcnugopal has urged that if the version of PW! 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.
KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA 
187 
[AMITAVA ROY, J.] 
I. Anil Phukhan vs. Stttte of Assttm' 
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2. Ra11rji Surya Padvi and Another vs. State of .Maltarttshtra' 
3. C/111hul ~fhg/1 vs. State of Haryana3 
4. State of A.P. l's. Patnt1111 Anandam• 
5 . .Mahamttdkhan Natltekhan vs. State of G1rjarat' 
6. Budha Sutya Venkata S. Rao and Others vs. Stale of A.P.6 
7. Niranjan Panja vs. State of West .Bengal' 
8. Nt1grcrj vs. State represented by Inspector of Police, Salem 
Town, Tamil Nadu' 
IO. In refutation. the learned counsel for the respondent-state has 
asserted that the evidence of the sole eye witness PW 1 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 PW!, 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 PWI, 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 PW I was vitiated 
by contradictions. embellishments and inconsistencies. According to Mr. 
Misra, the statement on oath of PW! is amply supported by that of
Kumari Nomi ta Behera (PW2), the daughter of the deceased and PW 12, 
who, in the next morning, did detect the dead body of the deceased in a 
hanging posture from the roofofthe adjacent shed, as deposed by PWI. 
As the testimony of PW I together with that of PW3, the mother of the 
deceased persuasively prove the illicit relationship between the accused 
'\1993) 3 sec 282 
'\1983) 3 sec 629 
'(1976) 1sec879 
• (2005) 9 sec 231 
'\2014) 14 sec 589 
'1994 Supp(3) sec 639 
1 (2010) 6 sec 525 
• (20 J 5J 4 sec 739 
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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 
PW I had been threatened with death by the appellant. if he dared to • 
disclose the commission ofoffence, the delay on the part of the witnes~ 
(PW!) to cont:ide about the same in PWS, 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 Gu/am Sarbar vs. State of 
Bilwr' 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. PW I, who is the cousin 
brother of the appellant and incidentally the nephew of the co-accused 
Pruvati 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 h1>mes and when they 
were nearing their houses, the appellant concealed himself in a lane near 
the house of the witness. PW! 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 Bchera 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 Bchera covered hismouth 
'(2014)3SCC401
KUNA @ SANJAYA BEHERA v. THE STATE OF ODISHA 
[AMITAVA ROY, J.] 
with her hands, as a result of which the deceased soon became suffocated 
and died. The witness siated that thereafter the accused persons brought 
a rope, tied it around the neck of the deceased and suspended the dead 
body from the roofofthe 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. PW I 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, PWl2 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. PW l 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 motherof 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, PW! disclosed to them the incident and the fact that he had 
witnessed the same. PW8 stated that about 5/6 days atlcr the incident, 
when he asked PW I 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, PW I disclosed 
in sequence the facts, as narrated by him on oath. 
14. Dr. Rupabhanu Mishra (PW!!), who performed the post-
mo11em 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. PW 12, 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 
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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 
515.30 a.m. and when he returned with his torch light, he detected the 
dead body ofSantosh Behera hanging from the roofofadjacent shed by 
a rope. He then requested PW5 to write a report which he thereafter 
lodged with the police. S.I. Narendra Kumar Sarangi (PW 16) 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 P/111khan1, Ramji Surya', 
Patna111 Ananda111' and G11la111 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 llfoh11111dkha11 
Natlreklia115 
19. With reference to Section 3 of the Evidence Act, which defines 
"proved", "disproved" and "not proved", this Court in Lokema11 Shalt 
a11d a11otlrer vs. State of West Be11gat1• recalled its observations in 
M. Narsillga Rao vs. State of A.P., 2001 Crl.LJ. 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 
" AIR 200 I SC 1760
KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA 
191 
[AMITAVA ROY, J.] 
that it exists, (vide Section 3 of the Evidence Act). What is required 
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is materials on which the court can reasonably act for reaching 
the supposition that a certain fact exists. Proofofthe 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 VijayeeSi11glr <md others vs. State of U.P.'', 
this Court dwelling on the same theme, had recorded the following 
exposition: 
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"28. It can be argued that the concept of 'reasonable doubt' is 
vague in nature and the standard of'burdcn of proof' contemplated c 
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 D 
man. Section 3 while explaining the meaning of the words "proved", 
"disproved" and "not proved" lays down the standard of proot: 
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 
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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 
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proof at the same time contemplates of giving foll 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 docs not exist or considers its non-
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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 
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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 examinat10n 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 requirem~nt, as an appropriate concrete standard to measure "proof', 
full effect has to be given to the circwnstances 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 circwnstances, 
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. PW I 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 I 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 PW! was situated. The spot map Ex. 
P-11 prepared by the 1.0. (PW 16) noticeably docs not mention about 
any source oflight in the locality. It docs 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 PWl from the place, where he was located. It 
is intriguing that though PW I 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 
Behcra 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
KUNA@ SANJAYA BEHERA v. THE STATE OF ODISHA 
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[AMITAVA ROY, J.] 
had been threatened by the appellant does not explain or justify in any 
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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 PW I 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 
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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 PW!, PWS, PW6 andPW8. Apart from the fact that testimony 
of PWS, PW6 and PW8 can by no means be construed to be substantive 
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in nature, these witnesses having derived the knowle\!ge from PW 1, we 
are inclined to accept the analysis of t11e materials on record on the 
aspect of motive as made by the Trial Court. 
23. The testimony of PW! with regard to the illicit relationship 
between the accused persons, his revelation to the mother of the deceased 
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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 PW!, in view of 
inherent improbabilities anc1 incongruities in his evidence, we do not 
consider it safe to base the conviction of the appellant and the co-accused 
thereon. De hors testimony of PW I, 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 PW I 
and PW3, in the overall perspective as discussed hercinabove, is 
apparently flawed. 
24. On a totality of the consideration of all relevant facts and 
circumstances, we arc of the unhesitant opinion that the evidence of 
PWI, 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 
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be acted upon as the basis of conviction. The testimonies of PW3, PW5, 
PW6, PW8 and PW I 1, even if taken on their face value, fall sho1t 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 cowts 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. 
Divya Pandey 
Appeal allowed.