The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK JCRLA No.07 of 2014 An appeal from the judgment and order dated 24/27.09.2012 passed by the Additional Sessions Judge (FTC-I), Bhadrak in Sessions Trial No.49/49 of 2011. --------------------- Surendra Prasad Das @ Bapi ....... Appellant -Versus- State of Odisha ....... Respondent For Appellant: - Ms. Sasmita Nanda Advocate For Respondent: - Mr. JateswarNayak Addl. Govt. Advocate --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MISS JUSTICE SAVITRI RATHO --------------------------------------------------------------------------------------- -------------------------------- Date of Hearing and Judgment: 29.01.2025 --------------------------------------------------------------------------------------- -------------------------------- By the Bench: The appellant Surendra Prasad Das @ Bapi faced trial in the Court of learned Additional Sessions Judge (FTC-I), JCRLA No.07 of 2014 Page 1 of 27 Bhadrak in Sessions Trial No.49/49 of 2011 for offence punishable under section 302 of the Indian Penal Code (hereafter „I.P.C.‟) on the accusation that on 21.11.2010 at village Gacha Adia at 4.00 p.m. in the afternoon, he committed murder of his wife Sradhanjali Patra (hereafter “the deceased”). The learned trial Court vide impugned judgment and order dated 24/27.09.2012, found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- (Rupees one thousand), in default, to undergo R.I. for three months. Prosecution Case: 2. P.W.10 Pradipta @ Amulya Kumar Patra, the elder brother of the deceased, is the informant in this case and he lodged the F.I.R. on 21.11.2010 before the Officer-in-Charge of Bansada Police Station in which he stated that the deceased married to the appellant in the year 2010 in the month of Asadha as per the Hindu Rites and Customs. At the time of marriage, as per the demand of the bride groom side, cash of Rs.50,000/-, gold chain, ring and other household articles were given. However, after the marriage, the parents-in-law, sister-in-law and brother-in-law so also the appellant started torturing the JCRLA No.07 of 2014 Page 2 of 27 deceased demanding more dowry of Rs.50,000/-. In that connection, the deceased had communicated to her family members over phone and the informant had also discussions with the in-laws‟ family members of the deceased over the issue and had also assured to fulfill the demand of dowry after the harvesting of the paddy crops. On 21.11.2010 at about 4.00 p.m., the informant received phone call from the outsiders and accordingly proceeded to the village of the appellant and in the house of the appellant, he found the deceased was lying dead in bleeding condition. He suspected that the in-laws family members i.e. mother-in-law, husband (appellant), sister-in-law, brother-in-law, uncle-in-law and younger brother of the father- in-law might have killed the deceased by assaulting her repeatedly with crowbar. No ornament was found on the body of the deceased, who was lying on the cot.
Legal Reasoning
post-mortem examination report (Ext.1), we are of the view that the learned trial Court is quite justified in holding that the deceased met with a homicidal death. JCRLA No.07 of 2014 Page 13 of 27 Circumstantial evidence on record against appellant: 9. The entire case of the prosecution is based on circumstantial evidence. The principles concerning circumstantial evidence are fairly settled and are generally referred as the "Panchsheel" principles and the locus classicus on the issue is Sharad Birdhichand Sarda -Vrs.- State of Maharashtra reported in (1984) 4 Supreme Court Cases 116. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete. It must also be established that the chain of circumstances is consistent with the only conclusion of guilt. The margin of error in a case based on circumstantial evidence is minimal. For, the chain of circumstantial evidence is essentially meant to enable the Court in drawing an inference. The task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution. (Ref: Kalinga -Vrs.- State of Karnataka : (2024) 4 Supreme Court Cases 735). In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to JCRLA No.07 of 2014 Page 14 of 27 draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. (Ref: Raj Kumar Singh -Vrs.- State of Rajasthan : (2013) 5 Supreme Court Cases 722). Absence of motive: In the case in hand, the prosecution has failed to establish any motive on the part of the appellant to kill the deceased. So far as the relevancy of motive in a case based on circumstantial evidence, the weight of authorities is on principles that if motive is proved, that would supply another link in the chain of circumstantial evidence, but absence of motive cannot be a ground to reject the prosecution case, though such an absence of motive is a factor that weighs in favour of the accused. (Ref: Prem Singh -Vrs.- State of NCT of Delhi : (2023) 3 Supreme Court Cases 372). P.W.7 has stated that occurrence took place five to six months of the marriage. The two witnesses on which main JCRLA No.07 of 2014 Page 15 of 27 reliance has been placed by the learned trial Court are P.W.9 and P.W.10. P.W.9, the uncle of the deceased has not only stated about the demand of dowry but also stated that after 20 to 25 days of marriage, the deceased informed him over telephone about the torture made by her parent-in-laws and sister-in-law both physically and mentally, demanding dowry cash of Rs.50,000/-. He further stated about the assurance given to the family members of the appellant to fulfill the demand selling the paddy after harvesting. According to P.W.9, Khaja Nayak was the mediator from both the sides. The said witness is a charge sheet witness, but the prosecution has declined to examine him. P.W.10, the informant in this case is the elder brother of the deceased, who has stated that police had given them 54 items after seizure and accordingly, the zimanama was signed and whatever they had received from the police as per zimanama, those articles were given to the deceased out of love and affection. The statement naturally rules out that there was any demand at the time of marriage or any article was given to the deceased on account of such demand. The charge-sheet was also not submitted under sections 498-A, 304-B of I.P.C. and section 4 of the Dowry Prohibition Act even though the case was registered under such offences. P.W.10 has stated that the JCRLA No.07 of 2014 Page 16 of 27 appellant along with the deceased had been to their house once after marriage and at that time, the appellant and the deceased were living happily. Thus, absence of motive is a factor that weighs in favour of the appellant. Statement of mother of appellant before witnesses: P.W.9 has stated that on the date of occurrence, after getting information over phone, when he along with others reached at the house of the appellant, they found the deceased was lying on a cot in a pool of blood and she was dead and she had sustained injury on her head and there was profuse bleeding from her head. The mother of the appellant was sitting by the side of the deceased and she told that the appellant assaulted on the head of the deceased by means of crowbar as a result of which, she died. Almost identical evidence has been adduced by P.W.10. Evidence of P.W.10 indicates that after the mother of the appellant told him, that the appellant assaulted the deceased by means of crowbar, for which the death took place, he lodged the F.I.R. at Bansada police station. P.W.9 also stated that after hearing about the assault made by the appellant to the deceased from the mother of the appellant, he asked P.W.10 to lodge the JCRLA No.07 of 2014 Page 17 of 27 F.I.R. at the police station. However, in the F.I.R., there is no mention regarding the mother of the appellant giving any such information that the appellant had assaulted to the deceased by means of crowbar, rather in the F.I.R., it is mentioned that the mother-in-law, husband (appellant), sister-in-law, brother-in- law, uncle-in-law and father-in-law‟s younger brother conjointly assaulted the deceased by means of crowbar, for which the death took place. At this stage, the decision relied upon by the learned counsel for the appellant in the case of Ram Kumar Pandey (supra) is very relevant for consideration. In the said case, it has been held as follows:- “9. No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. we think that omissions of such important facts, affecting the probabilities of the case, are relevant under JCRLA No.07 of 2014 Page 18 of 27 Section 11 of the Evidence Act in judging the veracity of the prosecution case.” If the informant (P.W.10) had got the important information prior to the lodging of F.I.R. from the mother of the appellant that the appellant killed the deceased by assaulting her with a crowbar on her head, then such aspect would not have found missing in the F.I.R. It has been confronted to P.W.10 and proved through the Investigating officer (P.W.12) that in the 161 of Cr.P.C. statement also, P.W.10 has not stated any such thing regarding the information given by the mother of the appellant that the appellant assaulted the deceased by means of crowbar. On the other hand, in the F.I.R., P.W.10 suspected that the in- laws family members of the deceased i.e. mother-in-law, husband (appellant), sister-in-law, brother-in-law, uncle-in-law and younger brother of the father-in-law might have killed the deceased by assaulting her repeatedly with the crowbar. P.W.7 though stated that the mother of the appellant told him about the appellant killing the deceased, but he has admitted not to have stated the same before the police. Section 11 of the Evidence Act makes irrelevant facts relevant if they are inconsistent with any fact in issue or relevant facts and if by themselves or in connection with other facts, they JCRLA No.07 of 2014 Page 19 of 27 make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The admissibility of a particular evidence under section 11 in each case must depend on how near is the connection of the facts sought to be proved with facts in issue, to what degree do they render facts in issue, probable or improbable, when taken with other facts in the case and to what extent would be admission of the evidence be inconsistent with principle enunciated elsewhere in the Act. One fact is said to be inconsistent with the other when it cannot co- exist with the other. Absence of mentioning an important aspect in the F.I.R. which is also not there in the 161 Cr.P.C. statement and deposed to for the first time in Court during trial, is very difficult to be accepted. Mother of the appellant was also a charge sheet witness. It appears from the trial Court record that she was summoned to give evidence, but she was declined by the prosecution. No reason has been assigned in the memo as to why the witness was declined to be examined. In absence of her evidence, the evidence given by P.W.9 and P.W.10 that they heard from the mother of the appellant that the appellant assaulted the deceased by means of a crowbar becomes a JCRLA No.07 of 2014 Page 20 of 27 hearsay evidence and it is not admissible in view of section 60 of the Evidence Act. In case of State of Maharastra -Vrs.- Kamal Ahmed reported in reported in (2013) 55 Orissa Criminal Reports (SC) 139, it is held as follows: "A perusal of Section 60 of Evidence Act leaves no room for any doubt that oral evidence in respect of a fact, must be of a primary nature. It would be evidence of a primary nature, if it satisfies the state of facts described as "direct" in Section 60. Illustrative instances of direct/primary evidence, are expressed in Section 60 itself. When it pertains to a fact which can be seen, it must be the statement of the person who has himself seen it; if when it refers to a fact which can be perceived, it must be the statement of the person who has perceived it; & when it pertains to an opinion (or the basis on which that opinion has been arrived at), it must be the statement of the person who has himself arrived at such opinion. Stated differently, oral evidence cannot be hearsay, for that would be indirect/secondary evidence of the fact in issue (or the relevant fact)". It is borne out of the record that so far as P.Ws. 7, 9 & 10 are concerned, they were intimated about the murder by JCRLA No.07 of 2014 Page 21 of 27 the mother of the appellant. They had no first hand information regarding the crime and hence their depositions can be bracketed only as hearsay evidences relating to actual murder. What is most piquant aspect is that the mother of the appellant was not examined in the trial to state how she came to know about the murder of the deceased. The logical inescapable conclusion is that whatever P.Ws. 7, 9 and 10 have testified before the Court, firstly has not been established beyond all reasonable doubt and most significantly are all hearsay and inadmissible in evidence. No credibility can be attached to such depositions. In absence of evidence of mother of the appellant, the prosecution version that the appellant assaulted to the deceased by a crowbar lies within the realm of totally inadmissible evidence of hearsay of the worst kind and no reliance can be placed on such evidence to hold appellant guilty of the crime. 10. The learned trial Court has held that appellant and the deceased were last seen together and the appellant has not offered any plausible explanation about the cause of death of the deceased and that the appellant has not discharged his burden as per section 106 of the Evidence Act. It is not a case where only the appellant was staying with the deceased in the house in JCRLA No.07 of 2014 Page 22 of 27 question. It appears from the evidence on record that the parents-in-law, the brother-in-law, sister-in-law and others were also staying in the house in question and allegations were also levelled against them at the first instance in the first information report, but they are not the accused in the case. The provisions of section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the Evidence Act. In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him, however this section does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis JCRLA No.07 of 2014 Page 23 of 27 compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. In the factual scenario, when the other inmates of the house have been excluded from the charge sheet and no cogent evidence has come by way of circumstantial evidence in this case against the appellant, it is very difficult to accept that the circumstances do form a complete chain and it lead only to the irresistible conclusion that the appellant alone is the perpetrator of the crime in question. Seizure of crowbar at the instance of appellant: 11. A crowbar was seized at the instance of the appellant as appears from the evidence of P.W.12 and the doctor has also stated that the injury noticed on the person of the deceased is possible by the crowbar. The crowbar was not produced during trial. Though the crowbar was sent for chemical analysis, but the chemical examination report has also not been produced. Therefore, the seizure of the crowbar and the opinion given by the doctor (P.W.1), in absence of any other evidence is not sufficient to hold the appellant guilty under the offence charged. Therefore, we are of the view that the prosecution has miserably JCRLA No.07 of 2014 Page 24 of 27 failed to establish the charge under section 302 of the Indian Penal Code against the appellant. Conclusion: 12. In the result, the JCRLA is allowed. The impugned judgment and order of conviction and sentence is set aside and the appellant is acquitted of the charge under sections 302 I.P.C. The appellant is in jail custody since the date of his arrest. He shall be released forthwith, if his detention is not required in any other case. 13. The investigation of this case is not up to the mark and the conduct of the Public Prosecutor in declining material witnesses without assigning any reason in the memo is also not appreciated. If a vital witness is a charge sheet witness and is summoned, then ordinarily, it is expected that the prosecution shall examine such witness. If after testing the witness, the prosecution thinks it proper to decline the witness then reason has to be assigned in the memo as to why the witness has been declined, so that the trial Court as well as the appellate Court would be in a position to know why a material witness has been declined. A Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are JCRLA No.07 of 2014 Page 25 of 27 brought before the Court in order for the determination of truth and justice for all the parties including the victims. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. In a serious case of this nature, when so many exhibits were sent for chemical examination, it was the utmost duty of the Investigating Officer to obtain the C.E. report while filing the charge sheet, and if the same has not been done while filing the charge sheet, the learned Public Prosecutor so also the learned trial Court should also take effective steps in ensuring that the C.E. report is produced from the concerned Forensic Science Laboratory. Recently the Hon‟ble Supreme Court in the case of Mahabir and others -Vrs.- State of Haryana reported in 2025 LiveLaw (SC) 121 has held that the Public Prosecutor must be a person of high merit, fair and objective, because upon him depends to a large extent the administration of justice. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts of the case. 14. Before parting with the case, we would like to put on record our appreciation for Ms. Sasmita Nanda, the learned JCRLA No.07 of 2014 Page 26 of 27 Amicus Curiae for rendering her valuable help and assistance towards arriving at the decision, above mentioned. The learned Amicus Curiae shall be entitled to her professional fees which is fixed at Rs.7,500/-(rupees seven thousand five hundred only). This Court also appreciates the valuable help and assistance provided by Mr. Jateswar Nayak, learned Additional Government Advocate. .............................. S.K. Sahoo, J. .............................. Savitri Ratho, J. Orissa High Court, Cuttack The 29th January 2025/Narayan/Sukanta Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Reason: Authentication Location: Orissa High Court, Cuttack Date: 30-Jan-2025 19:11:50 JCRLA No.07 of 2014 Page 27 of 27
Arguments
On the basis of such written report of P.W.10, Smt. Sarojini Singh (P.W.12), O.I.C. of Bansada Police Station registered, Bansada P.S. Case No. 195 of 2010 under sections 498-A, 302, 304-B read with section 34 of the I.P.C. and section 4 of the Dowry Prohibition Act against the appellant and his family members and she herself took up investigation of the case. She examined the witnesses, visited the spot, prepared the JCRLA No.07 of 2014 Page 3 of 27 spot map (Ext.8), conducted the inquest over the dead body of the deceased and prepared the inquest report vide Ext.5. On 22.11.2010, she arrested the appellant and on the disclosure statement made by the appellant and at his instance, one crowbar was seized from the pond as per the seizure list Ext.3/2. The dowry articles were seized from the house of the appellant as per the seizure list Ext.10 and it was left in the Zima of the informant (P.W.10) as per the Zimanama (Ext.7). The I.O. also seized the blood stained earth, sample earth from the spot and prepared the seizure list (Ext.11). He also seized one printed lungi, one red colour napkin and white colour baniyan of the appellant as per the seizure list (Ext.12) and on 23.11.2010, she seized one violet colour saree and red colour saya of the deceased after the post-mortem examination as per the seizure list Ext.13. On 18.03.2011, the blood stained earth, sample earth and other seized articles were sent to R.F.S.L., Balasore for chemical examination through Court. The I.O. received the post- mortem report and on completion of investigation, she submitted charge sheet under section 302 of the Indian Penal Code against the appellant on 21.03.2011. JCRLA No.07 of 2014 Page 4 of 27 Framing of Charges: 3. Upon submission of the charge sheet, the case was committed to the Court of Session, where the learned trial Court framed charge against the appellant as aforesaid and as the appellant pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to establish his guilt. Prosecution Witnesses, Exhibits and Material Objects: 4. In order to prove its case, the prosecution examined twelve witnesses in total. P.W.1 Dr. Goura Chandra Jena was the Surgery Specialist, District Headquarters Hospital, Bhadrak, who conducted the post mortem examination over the dead body of the deceased on police requisition and proved his report vide Ext.1. He also proved the opinion report vide Ext.2 which was prepared after examining the iron rod (crowbar) produced by the I.O. P.W.2 Nagendra Mahallik is a witness to the seizure as per seizure list marked as Ext.3. He did not support the prosecution case for which he was declared hostile by the prosecution. JCRLA No.07 of 2014 Page 5 of 27 P.W.3 Gopal Chandra Das is a witness to the seizure as per seizure list marked as Ext.4. P.W.4 Babaji Mahallik did not support the prosecution case. P.W.5 Madan Mahalik and P.W.6 Kalandi Mohalik did not support the prosecution case for which they were declared hostile by the prosecution. P.W.7 Nanda Kishore Mohallik stated that on the date of occurrence, when he reached the spot, he found the mother of the appellant was weeping and found the deceased was lying on a cot in a pool of blood and the blood was oozing out from the head of the deceased and the mother of the appellant told that the appellant had killed the deceased. He is a witness to the inquest over the dead body of the deceased and proved the inquest report marked as Ext.5. P.W.8 Sadhu Charan Mahalik has stated that he heard that the appellant assaulted his wife by means of a crow bar to her head and the deceased died due to assault. He is a witness to the inquest over the dead body of the deceased and proved the inquest report marked as Ext.5. JCRLA No.07 of 2014 Page 6 of 27 P.W.9 Dibakar Patra is the uncle of the deceased. He stated that on 21.11.2010 at about 4.00 p.m., he got information over phone from a villager of the appellant that the deceased was killed by the appellant and when he himself, P.W.10 and other five to six villagers proceeded to the house of the appellant, they found the deceased was lying on a cot in a pool of blood and she was dead and also found that the deceased had sustained injury on her head and there was profuse bleeding from her head. He further stated that when he asked the mother of the appellant, she told them that the appellant assaulted to the head of the deceased by means of a crow bar, as a result she died. P.W.10 Pradipta @ Amulya Kumar Patra is the informant and brother of the deceased. He supported the prosecution case. P.W.11 Pikua Panda is the priest of the marriage between the appellant and the deceased and stated that after the marriage, the deceased went to her in-laws house. P.W.12 Smt. Sarojini Singh was the Officer in-charge of Bansada police station, who is the Investigating Officer of the case. JCRLA No.07 of 2014 Page 7 of 27 The prosecution exhibited fourteen documents. Ext.1 is the post mortem report, Ext.2 is the doctor report, Exts.3/2, 10, 11, 12 and 13 are the seizure lists, Ext.4/2 is the disclosure statement of the appellant, Ext.5 is the inquest report, Ext.6 is the F.I.R., Ext.7 is the zimanama, Ext.8 is the spot map, Ext.9is the arrest memo of the appellant and Ext.14 is the forwarding letter. Defence Plea: 5. The defence plea of the appellant was one of denial. Findings of the Trial Court: 6. The learned trial Court after assessing the oral as well as documentary evidence on record came to the conclusion on the basis of the evidence of the doctor (P.W.1) coupled with post mortem report (Ext.1) and inquest report (Ext.5) that the deceased met with a homicidal death. Learned trial Court came to hold that, that it is a case based on circumstantial evidence and relying on the evidence of P.W.2, P.W.5, P.W.9 and P.W.10, it was held that there was sufficient evidence to show that the appellant and the deceased were last seen together and the appellant has not offered any plausible explanation about the cause of death of the deceased. Learned trial Court also placed reliance leading to discovery of the crowbar at the instance of JCRLA No.07 of 2014 Page 8 of 27 the appellant and further held that since the appellant has not discharged his burden as per section 106 of the Evidence Act, there is a complete chain of circumstantial evidence leading to the only inference of the guilt of the appellant and therefore, held the appellant guilty under section 302 of the Indian Penal Code. Submissions of the Parties: 7. Ms. Sasmita Nanda, learned Amicus Curiae appearing for the appellant argued that from the very inception of the case, the prosecution has tried to make out a case of dowry demand, torture to the deceased in connection with demand of dowry and also assault to the deceased by all her in-laws family members including the appellant by crowbar, for which the case was registered under sections 498-A, 302, 304-B read with section 34 of the I.P.C. and section 4 of the Dowry Prohibition Act. However, during course of investigation, it was found that there were no material to support the accusations under sections 498- A, 304-B, 34 of the I.P.C. and section 4 of the Dowry Prohibition Act and also the accusation against the co-accused persons who were named in the F.I.R. and that is the reason for which while submitting the charge sheet, the I.O. deleted the names of the co-accused persons so also the offences under sections 498-A, JCRLA No.07 of 2014 Page 9 of 27 304-B read with section 34 of the I.P.C. and section 4 of the Dowry Prohibition Act and charge sheeted the appellant only under section 302 of the I.P.C. Learned counsel further argued that the prosecution case is based on circumstantial evidence and the circumstances are not clinching and not been firmly established and important witnesses have been withheld by the prosecution, even though they are charge sheet witnesses and evidence further reveals that the deceased and the appellant were living happily after the marriage and for the first time in Court, the case has been presented that it was on account of the crowbar blow given by the appellant to the deceased, she died. Learned counsel further argued that there are materials on record to show that whatever articles were given at the time of marriage were not dowry articles, but it was given out of love and affection to the deceased and since the so-called statement of the mother of the appellant implicating the appellant in the assault of the deceased is not there in the first information report and not there in the 161 of Cr.P.C. statement of the informant and mother of the appellant being a charge sheet witness was declined by the prosecution, the evidence of witnesses that they heard about the assault made by the appellant to the deceased by a crowbar from the mother of the JCRLA No.07 of 2014 Page 10 of 27 appellant becomes a hearsay evidence and not admissible and as such no reliance can be placed on the same and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. She placed reliance in the case of Ram Kumar Pandey -Vrs.- The State of Madhya Pradesh reported in A.I.R. 1975 S.C. 1026. Mr. Jateswar Nayak, learned Additional Government Advocate on the other supported the impugned judgment and submitted that the death of the deceased has been proved to be homicidal, in view of the evidence adduced by P.W.1 and the post mortem report. Since the appellant was the husband of the deceased and he was in the company of the deceased in his house, he was required to discharge his burden as to under what circumstances, the deceased met with homicidal death in view of the provision under section 106 of the Evidence Act, but the appellant has failed to discharge such burden. The learned Counsel further argued that the evidence of P.W.9 and P.W.10 are very relevant as they have stated that when they visited the house of the appellant getting the news of death of the deceased, they found the deceased was lying on a cot and the mother of the appellant disclosed before them that it was the appellant who dealt crowbar blow to the deceased, resulting in JCRLA No.07 of 2014 Page 11 of 27 her death and therefore, the learned trial Court has rightly placed reliance on the evidence of these two witnesses. It is further argued that the manner in which the death has taken place and the evidence on record, there is nothing to interfere with the impugned judgment and therefore, the Jail Criminal Appeal should be dismissed. Whether the deceased met with homicidal death: 8. Adverting the contentions raised by the learned Counsel for the respective parties, let us first discuss whether the prosecution has proved the death of the deceased to be homicidal. On this aspect, apart from the inquest report (Ext.5), the evidence of P.W.1, Dr. Goura Chandra Jena is very relevant. He was Surgery Specialist attached to Chandbali C.H.C. and on 23.11.2010 on police requisition, he conducted postmortem examination over the dead body of the deceased and noticed as follows:- EXTERNAL INJURY: Body was stout, fair complexion, rigor mortis absent, livor mortis on back, body swollen, large blisters formed all over body, replication of skin at places, eyes are closed, conjunctiva pale, cornea hazy, pupils JCRLA No.07 of 2014 Page 12 of 27 diluted, mouth partially opened, tongue swollen and protruded, fecal incontinence, nails were intact, hair easily plucked, ligature was absent. (i) lacerated wound on left pina with averted margin; (ii) lacerated wound over left occipital scalp 10 cm x 5 cm with everted margins; (iii) compound fracture of left occipital bone under injury no.(ii) with evisceration of brain matter. INTERNAL INJURY: (i) compound fracture of left parietal occipital bone 10 cm x antero-posteriorly with laceration and evisceration of brain matter. (ii) hematoma under scalp extending from left occipital region to parietal region. Nothing has been brought out in the cross- examination of P.W.1 to discard his evidence. Therefore, on the basis of the inquest report (Ext.5), the evidence of P.W.1, the