Section 30 Evidence Act | Confession of Co-Accused Cannot Substitute Legal Proof: Orissa High Court

“Suspicion, howsoever strong, should not be allowed to take the place of proof”— In a seminal ruling the High Court of Orissa, comprising Justice S.K. Sahoo and Justice Chittaranjan Dash, delivered a split verdict in a brutal rape and murder case, acquitting one appellant due to lack of corroborative evidence while upholding the life imprisonment of the prime accused based on an unbroken chain of circumstantial evidence.

Harrowing Discovery on Rakhi Purnima

The case dates back to August 22, 2002, a day meant for celebration. The deceased had left her home in Banspani Coal Hutting to tie a Rakhi to her god-brother in Kamarjoda. She never returned. The following morning, her body was discovered in a desolate area inside ‘putus’ bushes below the embankment ridges. The scene was gruesome: the victim was found in a half-naked state with severe injuries to her head and face, and her belongings scattered nearby.

The prosecution’s case rested entirely on circumstantial evidence, as there were no eye-witnesses to the crime. The trial court had convicted two men, Kathu Karua and Ramesh Apat, under Sections 376(2)(g) (Gang Rape), 302 (Murder), and 201 (Disappearance of Evidence) read with Section 34 of the IPC, sentencing them to life imprisonment. A third accused was acquitted by the trial court.

The Web of Circumstantial Evidence

Appearing for the appellants, Senior Advocate Mr. Debi Prasad Dhal argued that the conviction was based on weak extra-judicial confessions and the testimony of hostile witnesses. He contended that in the absence of direct evidence, the chain of circumstances was far from complete. Conversely, Additional Standing Counsel Mr. Aurovinda Mohanty submitted that the presence of the accused at the spot and forensic evidence forged an ironclad case.

The High Court meticulously applied the "Panchsheel" principles regarding circumstantial evidence laid down by the Supreme Court in Sharad Birdhichand Sarda. The Bench found that regarding the first appellant, Kathu Karua, the prosecution had successfully established a complete chain of events.

“The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt.”

The Hostile Witness Dilemma

A pivotal moment in the trial involved the testimony of P.W.9, a witness who was declared hostile by the prosecution. Despite turning hostile, he admitted during cross-examination that he had seen the appellant Kathu Karua standing naked inside the bushes where the deceased’s body was later found. He also testified to hearing shrieks coming from the bushes.

The Court reiterated the settled legal proposition that the evidence of a hostile witness is not to be washed off the record entirely. The Bench accepted the portion of P.W.9's testimony that corroborated the prosecution's theory, noting that his credit had not been completely shaken regarding the presence of the prime accused at the crime scene. Furthermore, forensic analysis revealed that human blood of Group ‘A’—matching the deceased—was found on the underwear seized from Kathu Karua.

Confession of Co-Accused

The Court took a divergent view regarding the second appellant, Ramesh Apat. The only evidence linking him to the crime was the extra-judicial confession made by the co-accused, Kathu Karua, and a statement by P.W.9 that he saw Ramesh chasing goats on the embankment, not in the bushes.

The Bench delved into Section 30 of the Indian Evidence Act, relying on the Supreme Court’s judgment in Hari Charan Kurmi v. State of Bihar. The Court held that a confession of a co-accused cannot be treated as substantive evidence. It can only be used to lend assurance to a conclusion of guilt already formed by other independent evidence.

“The Court must start with other evidence adduced by the prosecution and after forming its opinion with regard to the guilt... can turn to the confession in order to get assurance.”

Since there was no independent evidence corroborating Ramesh Apat’s involvement other than the co-accused's statement, the Court held that his conviction could not be sustained. The mere presence on the embankment, a public path, was insufficient to incriminate him.

The High Court dismissed the appeal of Kathu Karua. Although the charge of "gang rape" under Section 376(2)(g) and common intention under Section 34 could not stand due to the acquittal of the other accused, the Court convicted him simpliciter under Sections 376, 302, and 201 of the IPC. The Court reasoned that the circumstantial evidence—specifically his presence in a naked state at the crime scene and the forensic link—pointed unerringly to his individual guilt. He was directed to surrender within two weeks to serve the remainder of his sentence.

In contrast, the appeal of Ramesh Apat was allowed, and he was acquitted of all charges, with the Court emphasizing that moral conviction cannot substitute legal proof.

Date of Decision: 23.12.2025