“Conviction can be based on a testimony of a single eye witness if he or she passes

the test of reliability and that it is not the number of witnesses but the quality of
evidence”.

KUNA @ SANJAYA BEHERA V/S THE STATE OF ODISHA.

Case name: KUNA @ SANJAYA BEHERA V/S THE STATE

OF ODISHA.

Case number: CRIMINAL APPEAL NO. 677 OF 2010

Court: The Supreme Court of India

Bench: Hon'ble Justice N.V. Ramana

Hon'ble Justice Amitava Roy

Decided on: November 17, 2017

Relevant Section 34 , 203 , 302 Indian Penal Code 1860

Act/Sections: Sections 433 , 433A Code of Criminal Procedure
(CrPC)

 BRIEF FACTS AND PROCEDURAL HISTORY:

1. A complaint was lodged by Premananda Behera with police on February 20, 2000
defining about the unnatural death of his brother Santosh Behera by hanging from the
roof of a shed adjacent to his house.
2. Niranjan Behera disclosed to Daitari Behera that the appellant along with the co
accused Pravati Behera murdered Santosh Behera in the Intervening night of February
19 / 20 of 2000 in his own house and thereafter had suspended his dead body from the
roof of the nearby shade. Niranjan Behera claimed that he had witnessed the incident of
murder.
3. On February 26, 2000 Gunahari Behera and Makhan Behera came to the police station
and reported that Niranjan Behera had disclosed to them as well to have witnessed the
appellant and the co-accused committee murder of Santosh Behera the deceased in his
house and there after hanging his body from the roof of the nearby shade.
4. The investigating officer in the process of investigation inquest the dead body , prepare a
spot map , effected seizure , amongst others inter-alia of aero and also got the
postmortem of the dead body done before submitting the charge sheet.
5. Dr. Rupabhanu Mishra conducted the postmortem examination of the deceased
Santosh Behera and stated that the cause of death of the deceased was asphyxia as a result
of constriction of the neck and not due to hanging by rope.
6. Niranjan Behera , was threatened to death by appellant , if he dared to disclose the
commission of offence. After 3 days the witness Niranjan Behera communicated the
incident to Daitari Behera, Gunahari Behera, and Makhan Behera . And FIR was filed
after 6 days.
7. The witness stated that in the night of occurrence of murder. About 9:30 pm he had gone
to witness the video show in the village where the children of the co-accused were also
present. The appellant asked the witness to accompany him for liquor but initially he
resisted. Later he left the video show with the appellant and stated that they went to the
house of Baisakhu Behera where the appellant purchased liquor and consume the same
and forced the witness as well to drink and later they proceeded towards their respective
homes.
8. The witness stated that the appellant concealed himself in a lane near his house. Niranjan
Behera stated at that time he saw the deceased and Pravati Behera to come out of their
house on their way back to house Pravati Behera entered first and when the deceased was
about to enter the appellant struck him twice from the back as a result of which he fell
down and then the appellant set on the chest of the deceased and pressed his neck by his
hands and Pravati Behera covered his mouth as a result of which is suffocated and died
and thereafter the accused persons brought a rope tied around the neck of the deceased
and suspended the dead body from the roof of the adjacent shade.
9. The procedural history is :
 a. In the trial accused persons were charged under Section 302 / 203 / 34 IPC .
Prosecution examined as many as 16 witnesses after recording statements of the
accused persons under Section 313 CrPC and on a consideration of the materials
and record the trial court convinced the appellant and the co accused under
Section 302 IPC with Section 34 IPC and sentenced them to undergo
imprisonment for life and to pay fine of ₹ 100 /- in default to suffer rigorous
imprisonment for 30 days.
b. The TRIAL COURT laid utmost emphasis on the testimony of Niranjan Behera
who narrated the incidence of murder and also the post about the extra marital
relationship between the accused persons.
c. Reliance was also placed on the evidence of Musimani Behera the mother of the
deceased who perceived to have hinted at well to this unacceptable liaison. And
the trial court also noted the opinion of Dr. Roopbhanu Mishra .
d. Trial court discarded the prosecution case of illicit relationship as the motive of
murder. The testimony of Niranjan Behera , Daitari Behera , Gunahari Behera ,
Makhan Behera was taken into consideration to prove that charge against the
accused persons.
e. The appellant and co accused preferred separate appeals before the High Court
stating that their conviction under Section 302 / 34 IPC and the sentence awarded
their upon was affirmed.
f. The High Court after taking necessary facts into consideration has affirmed the
conviction of both and had left the co-accused at liberty to move an application
for premature release from jail under 433 and 433A of CrPC .

 ISSUE BEFORE THE COURT:

1. Whether Sanjay Behera ( Appellant ) and Pravati Behera are to be charged for murder under
302/32 of IPC ?
2. Whether Niranjan Behera 's claim to have witnessed the incident of murder to be accepted
by the court ?
 3. Is the illicit relationship or to be defined as extra marital affair the main motive of murder ?
4. Whether reliance on the testimony of Niranjan Behera, Daitari Behera, Gunahari Behera,
Makhan Behera is to be placed by the court ?

 RATIO OF THE COURT:

1. The Court is of the opinion that before recording the final conclusions on the basis of
evidence on record it would be beneficial to briefly note the legal propositions initiated in
the authority cited at the Bar . And stated that the conviction can be based on a testimony
of a single eye witness if he or she passes the test of reliability and that is not the number
of the witnesses but the quality of evidence propounded in Anil Phukhan , Ramji
Surya, with apparent emphasis that evidence must be weighed and not counted .
2. The Court is of the opinion that in a case where the charge is so to be proved only on
circumstantial evidence motive plays an important part in order to till the case as in
Mohmadkhan Nathekhan.
3. Under Section 3 of the Evidence Act the expression of proved disproved and not proved
lays down the standard of proof namely about the existence or non existence of the
circumstances from the point of view of a prudent man so much so that while adopting
the said requirement as an appropriate concrete standard to measure proof full effect has
to be given to the circumstances or conditions of probability or improbability.
4. The court stated that the evidence in this case has to be appreciated as Niranjan Behera is
the solitary eye witness to the incident. As a matter of fact the witness is related to both
the deceased and the accused appellant where the deceased is his uncle and appellant is
his cousin brother .
5. Court noticed that at the time of the incidence of murder he was intoxicated. And as per
the facts the spot map prepared by the investigating officer does not mention any source
of light in the locality where the murder took place indicating as to whether the area was
lighted at the time of incident to make the viewing of the incidence possible by Niranjan
Behera from the place where he was located.
 6. Further it was also noticed that if the co-accused Pravati Behera cover the mouth of the
deceased to facilitate his suffocation to death then he did not raise any alarm either to
prevent the occurrence or to master assistance from the inhabitants in the locality of about
150 to 300 people.
7. Testimony of Niranjan Behera with regard to illicit relationship between the accused
persons and his relation to the mother of the deceased that he and the CO accused was
seen in a compromising position in their house with the door open and the statement of
the mother of the deceased legs in persuasion to conclude that this was the main motive
for murder.
8. Court stated that all relevant facts and circumstances as stated by Niranjan Behera as a
witness of incident of murder projected by him is wholly unacceptable being fraught with
improbabilities , doubts and oddities inconceivable with normal human conduct or
behaviour and dust cannot be acted upon as the basis of conviction.
9. The testimonies of Musimani Behera, Daitari Behera, Gunahari Behera, Makhan Behera
and Rupabhanu Mishra even if taken on their face value fall short of the requirement of
proof of the charge beyond all reasonable doubt.

 DECISION HELD BY COURT:

1. The appellant and the co-accused are entitled to the benefit of doubt in the singular facts
and circumstances of the case.
2. The present appeal succeeds and is therefore allowed.
3. The appellant is acquitted and is ordered to be set at liberty if not required in connection
with any other case.