Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment

Judgment:

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			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
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			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
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		'decidedon' => '1995-12-22',
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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A. Pasayat, J.

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1996CriLJ1905',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
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2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.

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			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
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			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
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Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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3. Prosecution version shorn of unnecessary details is as follows :-

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
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On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.

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			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
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			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
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			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
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		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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4. The accused persons took the plea of false implication.

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			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
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			'decidedon' => '1995-12-22',
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			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
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Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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		'deposition' => 'Appeal allowed',
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
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		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
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		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.

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			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
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			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-

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			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
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			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
		'observations' => null,
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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(2) the facts so established should be consistent

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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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;

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1996CriLJ1905',
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	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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(3) the circumstances, should be of a conclusive nature and tendency;

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
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			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
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		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
		'observations' => null,
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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(4) they should exclude every possible hypothesis except the one to be proved; and

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1996CriLJ1905',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
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			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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		'pubs' => '1996CriLJ1905',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.

Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Context                                         echo $this->Adsense->display('responsive_rect'); 

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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
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	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1996CriLJ1905',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.

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	'title_for_layout' => 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
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		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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$content = array(
	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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P. Ray, J.

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			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
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			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
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			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Md Sher Bahadur Khan and anr Vs State - Citation 535775 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
)
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11. I agree.

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		'Judgement' => array(
			'id' => '535775',
			'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
			'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
			'appellant' => 'Md. Sher Bahadur Khan and anr.',
			'authreffered' => '',
			'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
			'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
			'caseanalysis' => null,
			'casesref' => 'Mukhi v. State of Orissa;',
			'citingcases' => '',
			'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
			'counseldef' => 'Sangram Das, Addl. Standing Counsel',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1995-12-22',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A. Pasayat and P. Ray, JJ.',
			'judgement' => '<p style="text-align: justify;">A. Pasayat, J.</p><p style="text-align: justify;">1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p style="text-align: justify;">2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p style="text-align: justify;">Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p style="text-align: justify;">3. Prosecution version shorn of unnecessary details is as follows :-</p><p style="text-align: justify;">On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p style="text-align: justify;">4. The accused persons took the plea of false implication.</p><p style="text-align: justify;">5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p style="text-align: justify;">6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p style="text-align: justify;">7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p style="text-align: justify;">Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p style="text-align: justify;">8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p style="text-align: justify;">(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p style="text-align: justify;">(2) the facts so established should be consistent</p><p style="text-align: justify;">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;</p><p style="text-align: justify;">(3) the circumstances, should be of a conclusive nature and tendency;</p><p style="text-align: justify;">(4) they should exclude every possible hypothesis except the one to be proved; and</p><p style="text-align: justify;">(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p style="text-align: justify;">'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p style="text-align: justify;">This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p style="text-align: justify;">9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p style="text-align: justify;">10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p style="text-align: justify;">P. Ray, J.</p><p style="text-align: justify;">11. I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
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			'pubs' => '1996CriLJ1905',
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	'Judgement' => array(
		'id' => '535775',
		'acts' => 'Indian Explosives Act, 1884 - Sections 5(3); <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 109, 120B and 302',
		'appealno' => 'J.C.A No. 67 and C.A. No 43 of 1995',
		'appellant' => 'Md. Sher Bahadur Khan and anr.',
		'authreffered' => '',
		'casename' => 'Md. Sher Bahadur Khan and anr. Vs. State',
		'casenote' => ' - LABOUR & SERVICES 
Pay Scale:[Tarun Chatterjee & R.M. Lodha,JJ] Fixation - Orissa Service Code (1939), Rule 74(b)  Promotion - Government servant, by virtue of Rule 74(b), gets higher pay than what he was getting immediately before his promotion - Circular Dated 19.3.1983 modifying earlier Circular Dated 18.6.1982 resulting in  reduction of pay of employee on promotion  Held, It is not legal. Statutory Rules cannot be altered or amended by such Executive orders or Circulars or Instructions nor can they replace Statutory Rules.
 -  Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. The prosecution has squarely failed to establish the accusations beyond reasonable doubt.',
		'caseanalysis' => null,
		'casesref' => 'Mukhi v. State of Orissa;',
		'citingcases' => '',
		'counselplain' => 'S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra,  Advs.',
		'counseldef' => 'Sangram Das, Addl. Standing Counsel',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1995-12-22',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A. Pasayat and P. Ray, JJ.',
		'judgement' => '<p>A. Pasayat, J.</p><p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.</p><p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.</p><p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').</p><p>3. Prosecution version shorn of unnecessary details is as follows :-</p><p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.</p><p>4. The accused persons took the plea of false implication.</p><p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.</p><p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.</p><p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.</p><p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.</p><p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-</p><p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;</p><p>(2) the facts so established should be consistent</p><p>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;</p><p>(3) the circumstances, should be of a conclusive nature and tendency;</p><p>(4) they should exclude every possible hypothesis except the one to be proved; and</p><p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-</p><p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'</p><p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.</p><p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.</p><p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.</p><p>P. Ray, J.</p><p>11. I agree.<p></p><p>',
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	(int) 0 => '<p>A. Pasayat, J.',
	(int) 1 => '<p>1. These two appeals are interlinked as Criminal Appeal No. 43 of 1995, is by Ajmer Khan and Md. Slier Bahadur Khan (hereinafter referred to as 'the accused' by name) while Jail Criminal Appeal No. 67 of 1995, is by accused Mr. Sher Bahadur Khan. This judgment shall govern both the appeals.',
	(int) 2 => '<p>2. Challenge in these two appeals is to legality of judgment and order dated 16-12-1994, passed by learned Additional Sessions Judge, Jeypore in Sessions Case No. 3 of 1993, (S. C. No. 365 of 1992, of Sessions Judge, Jeypore). Each of the accused was found guilty for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, iPC), and sentenced to undergo imprisonment for life.',
	(int) 3 => '<p>Nine persons including the accused-appellants faced trial for commission of offences punishable under Sections 302/120B/109, read with Section 34, IPC, and Section 5(2)(b) of the Indian Explosives Act, 1884, (in short, 'the Explosives Act').',
	(int) 4 => '<p>3. Prosecution version shorn of unnecessary details is as follows :-',
	(int) 5 => '<p>On 3/4-7-1992, while one S. Appa Rao (hereinafter referred to as 'the deceased') was asleep in his official quarters situated near Motu Police Station, the nine accused persons came to Motu being armed with deadly weapons and explosives. Finding window of the bed room of the deceased open, Raheem Khan dealt a severe blow by spear on the belly of the deceased through the open window which caused his instantaneous death. At the time of murder two crackers, were exploded at a short distance from quarters of the deceased. The aforesaid Raheem Khan sustained bleeding injuries due to explosion of crackers. The ghastly act was consequential to previous discontent of opinion between the deceased and the accused persons in connection with murder of one Srinivasa Rao in respect of which Motu P. S. Case No. 6 of 1992, was instituted on 18-3-1992, and in that case Masum Khan, Hasan Khan, Janal Khan and one Karam Bhima were arrested for which they bore grudge against the deceased. Subsequently on 9-5-1992, Raheem Khan, accused Sher Bahadur Khan and Peer Khan, who were nephews of Masum Khan were arrested in connection with Motu P.S. Case No. 11 of 1992, and remained for five days in Malkangiri Sub-Jail. During these five days a conspiracy was hatched by Masum Khan, Hasan Khan, Jamal Khan, Raheem Khan, accused Sher Bahadur Khan and Peer Khan to do away with the life of the deceased. After released from jail, Raheem Khan, accused Sher Bahadur Khan and Peer Krran publicly declared the intention to take away the life of the deceased, and accordingly they conspired with some oftheirotherrelatives namely, Miesan Khan, Rahman Khan, Kala Khan, Ibrahim Khan, Ajmer Khan, Sayed Latif, and others. There was unanimity of view to do away with life of the deceased. During 3/ 4-7-1992, pursuant to the common design, Raheem Khan, accused Sher Bahadur Khan, accused Ajmer Khan, Salbam Pichi, Mauz Khan, Miasan Khan, Rahaman Khan and Fathe Khan came to Motu being armed with deadly weapons, and caused death of the deceased as described above. At the time of murder, pamphlets were thrown where 'people's party' were written in red ink to, drew red-herrings. After commission of offences, the culprits fled away. On the next day morning, the deceased was found lying dead in his bed-room in a pool of blood. Investigation was undertaken during which a scientific team was deputed from the District Forensic Science Laboratory, Koreput, Services of a Police Dog, were also availed. The Police Dog led to the house of Raheem Khan where some red ink, a pamphlet similar to those thrown at the spot of crime, a bloodstained check lungi, a pair of bloodstained shoes and and a bloodstained spear were seized. Accused Sher Bahadur Khan gave recovery of an electric bulb which was removed by him from the verandah of official quarters of the deceased, and kept in a hole of that verandah at the time of occurrcnce. Chance finger prints appearing on the electric bulb were developed and photos thereof were taken. Ten specimen finger impressions of some accused persons were taken and on comparison and after necessary scientific investigation, the Finger Print Expert opined that two of the chance prints tallied with two finger prints of accused Sher Bahadur Khan. Accused Ajmer Khan while in custody gave recovery of an unexploded cracker from near a culvert on Malkangiri-motu road. Same was, seized by the Investigating Officer. Charge-sheet was submitted and all the persons implicated were tried.',
	(int) 6 => '<p>4. The accused persons took the plea of false implication.',
	(int) 7 => '<p>5. In Sessions Case No. 3 of 1993, nine accused persons as aforesaid were tried while in Sessions Case No. 78 of 1993, one Salbam Pici was tried. Both the cases were taken up together and common judgment was delivered in respect of both the cases. The learned trial Judge found the two accusedappellants guilty, but directed acquittal of others, and sentenced the two accused appellants as aforesaid.',
	(int) 8 => '<p>6. The prosecution in order to substantiate its accusations examined 19 witnesses. It is to be noted here that all the witnesses who were pressed into service to prove conspiracy resiled from statements made during investigation, and did not point out any accusing finger at the accused persons. As there was no eye-witness to the alleged occurrence, learned (rial Judge, relied on the circumstances highlighted above, that is, recovery of electric bulb and cracker, and fastened the guilt on the accused-appellants.',
	(int) 9 => '<p>7. In support of the appeals learned counsel for the appellants submitted that the so-called materials on which reliance has been placed to find the accused-appellants guilty by no stretch of imagination are sufficient to fasten culpability on them.',
	(int) 10 => '<p>Mr. Sangram Das, learned counsel for State on the other hand submitted that the circumstances clearly establish guilt of the accused, and they have been rightly found guilty.',
	(int) 11 => '<p>8. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the Apex Court in Sharad v. State of Maharashtra, : 1984CriLJ1738 . They read as follows :-',
	(int) 12 => '<p>(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established;',
	(int) 13 => '<p>(2) the facts so established should be consistent',
	(int) 14 => '<p>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;',
	(int) 15 => '<p>(3) the circumstances, should be of a conclusive nature and tendency;',
	(int) 16 => '<p>(4) they should exclude every possible hypothesis except the one to be proved; and',
	(int) 17 => '<p>(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is.to be adopted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baron Alderson stated the following to the jury in Reg v. Hodge, (1838) 2 Law 227 :-',
	(int) 18 => '<p>'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its prevous theories and necessary to render them complete.'',
	(int) 19 => '<p>This was referred to in Shankarlal v. State of Maharashtra, : 1981CriLJ325 , and in Jaharlal Das v. State of Orissa, : 1991CriLJ1809 . Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.',
	(int) 20 => '<p>9. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to Rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence. Such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis, suggested by the accused, however extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforce the conclusion of guilt, and if the combined effect of all these facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive. This position was elaborated by us in Kali Nayak alias Mukhi v. State of Orissa, (1995) 9 OCR 264.',
	(int) 21 => '<p>10. In the aforesaid background, it is to be seen how far the circumstances pressed into service by the prosecution to establish guilt of the accused prove the accusations. The bulb for which the search was acceptedly conducted by the investigating agency and the scientific team right from 4-7-1992, was allegedly found on 9-7-1992. It has been accepted by the members of the scientific team, i. e. P. W. 17 and 18 that the bulb was visible from outside in the hole, it is baffling that such a visible object could not be noticed by the investigating agency and the scientific team. Therefore, the circumstance of alleged recovery of electric bulb cannot be a factor to fasten guilt on accused Md. Shcr Bahadur Khan. But worse is the case of accused Ajmer Khan. Circumstance highlighted was that he gave recovery of an unexploded cracker near a culvert. Even if that is accepted to be a fact, that by itself does not establish any link between the concerned accused and the alleged culpable acts. The prosecution has squarely failed to establish the accusations beyond reasonable doubt. The inevitable conclusion is that the accused persons are entitled to an order of acquittal. Both the appeals are allowed. The order of conviction and sentence is set aside, and the accused-appellants are directed to be set at liberty forthwith, unless they are required to be in custody in connection with any other case.',
	(int) 22 => '<p>P. Ray, J.',
	(int) 23 => '<p>11. I agree.<p>',
	(int) 24 => '<p>'
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Subject	Criminal
Court	Orissa High Court
Decided On	Dec-22-1995
Case Number	J.C.A No. 67 and C.A. No 43 of 1995
Judge	A. Pasayat and P. Ray, JJ.
Reported in	1996CriLJ1905
Acts	Indian Explosives Act, 1884 - Sections 5(3); Indian Penal Code (IPC), 1860 - Sections 34, 109, 120B and 302
Appellant	Md. Sher Bahadur Khan and anr.
Respondent	State
Appellant Advocate	S.N. Sharma, ;M. Mishra, ;U.C. Patnaik, ;P.K. Das and ;B. Misra, Advs.
Respondent Advocate	Sangram Das, Addl. Standing Counsel
Disposition	Appeal allowed
Cases Referred	Mukhi v. State of Orissa

Md. Sher Bahadur Khan and anr. Vs. State - Court Judgment