Misc. Case No. 196 of 2013 · The High Court
Case Details
AFR THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.83 of 2013 From the Judgment and order of conviction and sentence dated 06.02.2013 passed by the Adhoc Addl. Sessions Judge, Fast Track Court, Khurda in S.T. Case No.12/142 of 2012/2010. Krushna Chandra Baral @ Barad and others ……. Appellants -Versus- State of Orissa ……. Respondent ______________________________________________________________ For the Appellants : Mr. Biplab P.B. Bahali, Advocate Mr. S.K. Patnaik, Advocate For the Respondent : Mr. J. Katikia, Addl. Government Advocate ______________________________________________________________ CORAM: THE HONOURABLE SHRI JUSTICE S. TALAPATRA THE HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 28th July, 2023 S. Talapatra, J. This is an appeal by the convicts (hereinafter referred to as the appellants) challenging the judgment and order of conviction and sentence dated 06.02.2013 delivered in S.T. Case No.12/142 of 2012/2010 by the Adhoc Addl. Sessions Judge, Fast Track Court, Khurda. 2 2. At the outset, it would be apposite to note that out of the four appellants, the appellants No.1, 2 & 4 are on bail by virtue of the order dated 30.07.2013 delivered in Misc. Case No.196 of 2013 arising from this appeal. 3. The repeated attempts of the appellant No.3 for obtaining bail or interim bail did not succeed and hence, he is in the jail and serving out the sentence, subject to the outcome of this appeal. 4. By the said judgment, the trial judge has convicted the appellants for committing the offence punishable under Sections-302/201/34 of the IPC. But they were acquitted from the charges as framed under Section- 498-A/304-B/406/34 of the IPC and under Section-4 of the Dowry Prohibition Act. 5. One accused namely Susama Martha was acquitted from all the charges. At the time of returning the said finding of conviction, the trial judge has observed that there is no evidentiary material to support the charges under Sections-498-A/304-B/406/34 of IPC and Section-4 of the D.P. Act. 6. Pursuant to the said conviction, the appellants have been sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs.500/- (Rupees five hundred) with default, imprisonment for CRLA No.83 of 2013 Page 2 of 33 3 committing the offence punishable under Section-302 of the IPC and Rigorous Imprisonment for one year under Section-201 of the IPC. It has been declared that the sentences are to run concurrently. 7. Briefly stated the prosecution case is that one Sasmita Mangaraj, sister of Sunil Kumar Mangaraj (P.W.1) and Susil Kumar Mangaraj, (P.W.2) was married to Susant Baral, the appellant No.3. Their marriage was solemnized on 06.07.2008. The appellant No.1, Krishna Chandra Baral and the appellant No.4, Sobha Baral are the parents of the appellant No.3 whereas the appellant No.2, Santosh Baral is the brother of the appellant No.3. The accused, Susama Martha is the minor sister of the appellant No.3.Within four months of their marriage, serious difference cropped up between the deceased (Sasmita Mangaraj) and her husband, the parents-in-law, married sister-in-law and brother-in- law. 8. The appellant No.3, the husband of the deceased started torturing the deceased for realizing unlawful demand of dowry. On 19.05.2009, the appellant No.3 informed Sunil Kumar Mangaraj (P.W.1) that Sasmita had been admitted in the District Headquarters Hospital, Khurda due to her illness. Getting that information, P.W.1 and his relatives reached the said hospital. To their dismay, they found Sasmita CRLA No.83 of 2013 Page 3 of 33 4 was lying dead and froth was coming out from her mouth. P.W.1 suspected that the accused persons (the appellants and Susama Martha) murdered the deceased by administering poison, as the demand of the accused persons could not be fulfilled. P.W.1 submitted a report (Ext.1) to the IIC, Khurda Police Station at 7.30 P.M. on 19.05.2009. Based on the said report, Khurda P.S. Case No.152 of 2009 was registered and taken up for investigation. 9. Gobinda Chandra Behera (P.W.6) after examining some witnesses held inquest on the dead body of the deceased in presence of the witnesses namely Ellora Samal (P.W.5), the Executive Magistrate and Prakash Chandra Mangaraj (P.W.3). After the inquest report (Ext.5) was drawn, the dead body of Sasmita (referred to as the deceased) was transported to the D.H.H., Khurda for post-mortem examination. Dr. Sanjukta Mohanty (P.W.4), the Assistant Surgeon at D.H.H., Khurda carried out the post mortem examination on 20.05.2009. P.W.4 basing on the chemical examination report (Ext.12) and having noticed the ante-mortem injury on the dead body of the deceased gave her final opinion that the death of the deceased was due to asphyxia caused by heavy pressure inflicted over anterior surface of neck which had caused damage to underlying muscle and vessels of the neck with swelling but CRLA No.83 of 2013 Page 4 of 33 5 without any mark, as it has been estimated that heavy pressure was exerted on the deceased by padded material. The said opinion is reflected in the final opinion report of P.W.4 (Ext.7). 10. After completion of the investigation and having found a prima facie case, the Investigating Officer submitted the charge-sheet under Sections-498-A/304-B/302/406/201/34 of the IPC and under Section-4 of the Dowry Prohibition Act against the five accused persons. 11. The charge-sheet was submitted in the court of the S.D.J.M., Khurda, who had taken the cognizance of the offences shortly after filing of the charge-sheet and committed the case records to the court of the Addl. Sessions Judge, Khurda. 12. In due course, the charge was framed under Sections-498-A/304- B/302/406/201/34 of the IPC and under Section-4 of the D.P. Act. But the appellants and the acquitted accused persons abjured the charge by denying its content and claimed to be tried in accordance with law. 13. In order to substantiate the charge as many as six witnesses were examined by the prosecution including the informant (P.W.1) and the post-mortem doctor (P.W.4). 14. The prosecution had introduced seven documentary evidence including the inquest report (Ext.5), post-mortem examination report CRLA No.83 of 2013 Page 5 of 33 6 (Ext.6), the final opinion report of P.W.4 (Ext.7) and the chemical examination report (Ext.12). 15. In order to rebut the prosecution evidence, the accused persons (the appellants and the acquitted accused) adduced five witnesses including two doctors namely Prof. Dr. Krishna Kumar Mohanty (D.W.4) and Dr. Satyaban Nayak (D.W.5). 16. The defence has introduced six documentary evidence (Ext.A to Ext.H) including various prescriptions (Exts.A, B, C, D & G). Even the Outdoor Registers of the D.H.H., Khurda (Exts.F & H) were admitted in the evidence. 17. After the prosecution evidence was recorded, the appellants and the acquitted accused persons were separately examined under Section- 313(1)(b) of the Cr.P.C. in order to have their response to the incriminating materials which surfaced in the evidence recorded during the trial. All the accused persons including the appellants reiterated their innocence and stated that the evidence has been falsified to implicate the appellants and the acquitted accused persons in the case. 18. On assumption that the death of Sasmita Mangaraj was un- natural, it was considered to be a homicide committed by the appellants and the acquitted accused persons. Afterwards, to rebut the prosecution CRLA No.83 of 2013 Page 6 of 33 7 evidence, the evidence as afore-stated was led by the appellants and the acquitted accused persons. 19. Having appreciated the evidence and the oral arguments advanced for the accused persons in particular and for the State, the trial judge returned the finding of conviction in the manner as noted above. 20. It is apparent that there is no direct evidence against the appellants. There is no ocular evidence against the appellant No.3 that he caused the murder of Sasmita (the deceased) by pushing pillow or padded materials on her mouth. 21. The finding as returned by the trial judge is in response to the following questions, as framed by him: (i) Whether the accused persons subjected the deceased with cruelty by wilful conduct and also harassed her with a view to coerce her and her parents to meet their unlawful demand of more dowry in furtherance of their common intention ? (ii) Whether the deceased met her death within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by the accused persons in connection with demand of additional dowry in furtherance of their common intention ? (iii) Whether the accused persons being entrusted with certain property, like cash of Rs.2,00,000/-, gold ornaments weighing 20 bharis, Godrej, T.V., Freeze, Washing Machine and other household articles, etc. and committed criminal breach of trust by the dowry articles to wit CRLA No.83 of 2013 Page 7 of 33 8 misappropriating the same, in furtherance of their common intention ? (iv) Whether the accused persons in furtherance of their common intention, committed murder of the deceased by inflicting heavy pressure on the neck of the deceased by padded materials which had caused damage to the underlying muscles or vessels of the neck ? (v) Whether the accused persons after murdering the deceased, brought her to the D.H.H., Khurda and created some evidence to show that the deceased died due to asthma while undergoing treatment in D.H.H., Khurda, with intention to screen themselves from legal punishment for murder, in furtherance of their common intention ? (vi) Whether the accused persons demanded a cash of Rs.2,00,000/-, 20 bharis of gold ornaments, Godrej, Freeze etc. before the marriage and additional cash of Rs.50,000/- after the marriage of the deceased with Susanta ? 22. We have already referred the crux of the finding of the trial judge wherefrom it is discernible that the questions No.1, 2, 3 & 6 were answered in the negative by the trial judge. However, the questions No.4 & 5 were decided against the appellants, but not against other accused persons, who had been acquitted under Section-235(1) of the Cr.P.C. for lack of evidence.
Legal Reasoning
23. By means of this appeal, the appellants have challenged the finding of conviction for being based on surmise, assumption and unsolicited presumption. CRLA No.83 of 2013 Page 8 of 33 9
Legal Reasoning
24. Mr. Biplab P.B. Bahali, learned counsel appearing for the appellants has submitted that the trial judge has unceremoniously discarded the evidence of D.W.4, Prof. Dr. Kishore Chandra Mohanty and D.W.5, Dr. Satyaban Nayak, who deposed in the trial quite categorically that the deceased was suffering from asthma and she was being treated by them for that illness. Even the evidence of D.W.1, Nilamani Baral, a cousin of the appellant No.3 who transported the deceased in his Auto-Rickshaw to the D.H.H., Khurda on 19.05.2009 as the deceased was seen seriously unwell for her heart disease. D.W.1 has testified that the deceased had been suffering from heart disease. According to Mr. Bahali, learned counsel for the appellants, the evidence of D.W.2, Manoj Kumar Satrusalya and D.W.3, Purna Chandra Baral, the co-villagers have not been considered in the perspective of this case. D.W.3 has deposed that the deceased was leading a happy married life in her matrimonial home till she breathed her last. 25. Mr. Bahali, learned counsel has further contended that the entire prosecution case is based on the opinion of P.W.4. According to him, P.W.4 was not a competent witness to state that heavy pressure was put on the neck of the deceased by padded materials. CRLA No.83 of 2013 Page 9 of 33 10 26. It has been further contended that this part is entirely based on assumption without any foundation of evidence. Even the post-mortem doctor had no occasion to consider that aspect that the deceased was suffering from asthma or not. 27. Having referred to para-7 of the impugned judgment, Mr. Bahali, learned counsel has submitted that the elements as catalogued therein cannot lead to a definite inference that there had been heavy pressure on the neck which caused asphyxia. 28. P.W.4 in the cross-examination has admitted that asphyxia can be possible by any disease. It can also be caused by broncho-spasm as well as by chocking of trachea by food materials and swelling can also be possible by coming in contact with the railings of the auto-rickshaw when a person is transported by an auto-rickshaw. 29. Mr. Bahali, learned counsel has thereafter, submitted that the trial judge has not considered the said opinion and did record his own opinion which is not supported by any expert-opinion. 30. According to the trial judge, absence of over-expanded lungs rules out natural death due to asthma. In support of his contention, Mr. Bahali, learned counsel has relied on the decisions which were referred to, by the trial judge. In Pratap Mishra vs. State of Orissa: AIR 1977 CRLA No.83 of 2013 Page 10 of 33 11 SC 1307, the apex court held that the doctor’s evidence is more reliable than that of the extracts from the medical books. The doctor’s attention had to be drawn to the particular passage of the books before the defence goes on to rely upon them. In absence of any opinion from the expert on the comments of the text book, the Court cannot draw any inference based on the comments on text book. 31. In Md. Zahid vs. State of Tamil Nadu: AIR 1999 SC 2416, the doctor conducting post mortem examination had stated that the cause of death was asphyxia and cerebral anoxia, cumulative with other injuries. Those statements were cross-checked by the defence on the basis of the authoritative text books and suggested that the doctor had wrongly inferred the cause of death. The doctor’s attention was drawn to those texts, as the doctor could not reasonably explain the conclusion drawn on the cause of death, the Court held that sufficient weightage should be given to the evidence who conducted the post-mortem examination, as compared to the statements found in the text books. But giving weightage does not ipso-facto mean that each and every statement made by the medical witness should be accepted on its face value, if it is found to be fraught with contradiction. CRLA No.83 of 2013 Page 11 of 33 12 32. Another decision has been relied on in order to buttress the contention of the appellants. In Mayor Pranabhai Shah vs. State of Gujarat: A.I.R. 1983 SC 66, it has been observed by the apex court that a doctor is like any other witness and his evidence is to be read just like any other witness. He is not a witness of truth. Where a doctor has deposed in the Court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth. 33. Mr. Bahali, learned counsel has submitted that the appreciation of the doctor’s testimony was totally erroneous, as the doctor’s opinion as expressed during the cross-examination has been discarded on wrong premises and without following the procedure as enunciated by the apex court. At no point of time, the doctor was confronted with the text book which was relied on by the trial judge. 34. In this context, we are persuaded to take note the observation of the trial judge, where he has observed as follows: “The defence did not do so. Thirdly, presence of laceration on muscles and blood vessels in neck, compression of cartilage of neck, post-mortem lividity on back, thigh, hand and back side, rigor mortis on leg, and abrasion on breast is suggestive as well as indicative of the fact that heavy pressure was inflicted on the anterior surface of the neck with padded materials which had caused suffocation/smothering resulting the deceased.” the death of CRLA No.83 of 2013 Page 12 of 33 13 35. In this context, it has been indicated that the witnesses from the family of the deceased denied the fact that the deceased was suffering from asthma at any point of time. These observations are really surprising in as much as two doctors came as the defence witnesses and clearly stated that they had been treating the deceased for asthma. Even the defence witnesses such as, D.Ws. 1, 2 & 3 were not properly appreciated, as they were related to the appellant No.3. 36. The trial judge has given reason why he has discarded the evidence of D.Ws. 4 & 5, the doctors who treated the deceased on some occasions. It has been observed by the trial judge as follows: “D.W.5 has admitted when confronted that Ext.G relates to the patient Sasmita Pradhan but could not explain how Baral was replaced to the place of Pradhan. Over and above, D.W.5 has admitted that he had prescribed in all the prescriptions for treatment of the pregnant lady and also prescribed medicine for asthma in Ext.D. His statement for prescribing Deriphyling of single strength is preposterous when he could not say its different strength in as much as when he was not sure of the chest pain was related to asthma. Therefore, it is as clear as noon day that insertion of Deriphyling for treatment for asthma is a manipulation of D.W.5 and hence, his testimony to that extent is not accepted.” It has been further observed by the trial judge as follows: “D.W.4 at para-5 of his deposition has admitted Ext.B and Ext.C are in two different pad stamps. He has further stated that despite acuteness of asthma of the CRLA No.83 of 2013 Page 13 of 33 14 deceased as on the date of his examination, he has not admitted her in his nursing home rather suggested to consult a Cardiologist. He is running a private nursing home. As per the guidelines of the Government, under (Control and the Orissa Clinical Establishments Regulation) Act 1991 & Rules 1994, documents are required to be maintained about incoming and outgoing of the patients. No such Registers are filed. The facts and circumstances speak a volume about the credibility of Exts.B & C which D.W.4 issued without any pathological test report as suggested by him. Therefore, Exts. B & C are obtained to suit the line of the defence and as we know money like water washes away everything.” 37. Mr. Bahali, learned counsel in order to further nourish his submission has relied on a recent decision of this Court in Jayram Sahoo vs. State of Odisha (Judgment dated 31.03.2022 delivered in CRA No.20 of 2000) where this Court has observed that … “since the prosecution has failed to prove the motive of the crime in a case based on circumstantial evidence, it will have a serious impact in the chain of the circumstances, as the prosecution is under obligation to prove the circumstance as relied upon in a conclusive manner without leaving any space for any other hypothesis except the hypothesis of guilt. In that case, this Court had interfered with the judgment for not proving the motive behind the crime.” CRLA No.83 of 2013 Page 14 of 33 15 38. Reliance has been placed on a decision of the apex court in Anwar Ali vs. State of Himachal Pradesh: (2020) 10 SCC 166. It has been held in Anwar Ali (supra) inter alia as follows: is clear and unambiguous and “The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because, even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of the eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.” 39. The apex court in Nandu Singh vs. State of Madhya Pradesh (Judgment dated 25.02.2022 delivered in Criminal Appeal No.285 of 2022) has observed that in a case based on circumstantial evidence, motive assumes great significance. It is not as if the motive alone becomes the crucial link in the case to be established by the prosecution and in its absence, the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused. CRLA No.83 of 2013 Page 15 of 33 16 40. In State of U.P. vs. Kishanpal: (2008) 16 SCC 73, the apex court had occasion to observe as follows: is clear and unambiguous and “The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its in a case where direct evidence of importance eyewitnesses is available, because, even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of the eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.” 41. The same law has been restated in Pannayar vs. State of Tamil Nadu: (2009) 9 SCC 152 where the apex court has held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. 42. In another decision, in Shivaji Chintappa Patil vs. State of Maharashtra: (2021) 5 SCC 626, the apex court having referred to Anwar Ali (supra) observed as under: “Though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances.” CRLA No.83 of 2013 Page 16 of 33 17 43. Mr. J. Katikia, learned Addl. Government Advocate appearing for
Decision
the State has submitted that the impugned judgment is a well-reasoned judgment. The trial judge has appreciated the evidence and has drawn the inference on appreciation of every piece of the evidence that the appellants have committed the murder of Sasmita (the deceased). But he has fairly admitted that as the appellants have been acquitted from the charges under Sections-498-A/304-B/406 of the IPC and Section-4 of the D.P. Act, the statements relating to harassment for realising unlawful demand cannot have any relevance, but for the purpose of showing any material in support of the remaining charges, those may be still relevant. He has fairly admitted that the State has not challenged the order of acquittal and hence, the order of acquittal has reached its finality. 44. According to Mr. Katikia, learned Addl. Government Advocate, in the cross-examination, P.W.1 has categorically stated that he saw that white froth was coming out from the mouth and nose of the deceased. 45. P.W.2 has corroborated that he had also seen that froth was coming out from the mouth and nostril of the deceased and the said feature have been recorded in the inquest report. CRLA No.83 of 2013 Page 17 of 33 18 46. P.W.3, Prakash Chandra Mangaraj, has stated in the cross- examination that he was not examined by the Police in the case and he was not aware of the cause of death of the deceased (See para-11 of the cross-examination) P.W.3 did not speak a single word in respect of frothing. However, Mr. Katikia, learned Addl. Government Advocate has placed heavy reliance on the testimony of P.W.4, Prof. Dr. Sanjukta Mohanty, who had conducted the post mortem examination on the dead body of the deceased in the D.H.H., Khurda. 47. Mr. Katikia, learned Addl. Government Advocate has referred to the following part of the deposition of D.W.4: “Slim built, froth from nose and mouth, eye closed, mouth closed, conjugtiva congested, Cyanosis of lips and nails dilated and fixed pupil face neck congested, swelling of neck with subcutaneous blood clot, tear of sternomastoid, laceration of muscle and blood vessels in neck, compression of cartilage of neck, post-mortem lividity on back and thigh, hand and back side, rigormotis present in leg, absent in arms, abrasion on left breast, pale frothy lungs, heart partially filled with blood, lever, kidney normal, splin is congested, gravid uterus with 20 to 24 foetus, inside uterus, stomach contained 500 ml. food, with chemical smell, brain is congested without any injury or fracture. Initially, the opinion on cause of death was kept pending waiting for the chemical analysis report from the State Forensic Laboratory, Rasulgarh, Bhubaneswar.” CRLA No.83 of 2013 Page 18 of 33 19 48. After the chemical examination report was received from the Investigating Officer on 12.09.2009, P.W.4 gave the final opinion. She has stated quite categorically that in her opinion, the death was due to asphyxia caused by heavy pressure inflicted over anterior surface of the neck. The pressure inflicted was as such, that it has caused damage to underlying muscle/vessels of the neck which area was found with swelling without any mark of injury as padded materials were used exert pressure. 49. At this juncture, though it has not been referred by Mr. Katikia, learned Addl. Government Advocate appearing for the State, we may read the alternative opinion that has been given by P.W.4 in her cross- examination. She has testified as follows: “Asphyxia can be possible by any disease, throttling of neck or pressure on the neck. Asphyxia can also be possible by bronchospasm, in as much as possible by chocking of Trachea by food material. I had not marked any ecchymosis of the limbs vessels during Post Mortem examination. Swelling can be possible by coming in contact with railings of the auto rickshaw while carrying a person on auto rickshaw. I have not mentioned the size of swelling as not existing at the time of my examination on the swelling injury. We have not dissected the trachea.” 50. Mr. Katikia, learned Addl. Government Advocate has stated that the said opinion is based on the knowledge only. CRLA No.83 of 2013 Page 19 of 33 20 51. P.W.5, Debdas Giri was present at the time of the inquest and he had signed the inquest report (Ext.5). 52. P.W.6, Gobindra Chandra Behera was working as S.I. of Police at Khurda Town Police Station and he was entrusted with the investigation of the case. He has narrated briefly how he had conducted the inquest in presence of the witnesses and sent the dead body for the post-mortem examination to the D.H.H., Khurda. He had sealed some materials which were in the wearing of the deceased by preparing the seizure list. The other part of the deposition is not very material. We should re- appreciate the cross-examination of the Investigating Officer. He has clearly admitted that he did not ascertain whether the victim was transported to the hospital alive or not. He has also not examined the doctors who were on duty at the relevant point of time, when the deceased was brought to the hospital. He has admitted that on 30.08.2009, he had seized one photocopy of a prescription being produced by Krupasindhu Martha, the husband of Susama Martha (the co-accused). The said prescription relates to the deceased, Sasmita Baral. 53. P.W.6, the Investigating Officer has admitted that he has not ascertained how the deceased was transported to the hospital and what Page 20 of 33 CRLA No.83 of 2013 21 kind of vehicle was used. P.W.6 has asserted that all the family members including the informant had stated that the appellant and the acquitted accused persons administered poison to the deceased and thereby caused the death. But the chemical examination report received by him did not reveal that the death of the deceased was due to poison. The investigating officer has denied that during the investigation, he was aware that the deceased was suffering from asthma. 54. Mr. Katikia, learned Addl. Government Advocate has candidly admitted that since the death of the deceased took place within seven years of her marriage and there was allegation of harassment for dowry or unlawful demand soon before her death, the prosecution did not take any care to prove the motive independently and as such, none of the witnesses had specifically stated about the motive. Mr. Katikia, learned counsel has submitted that the opinion of P.W.4 has clearly established that by creating heavy pressure on the neck, internal injuries were caused and the death took place as consequence thereof. 55. We have carefully examined the post-mortem examination report to find out the nature of the ante-mortem injuries. What has been described in the post mortem examination regarding injury or about the state of the deceased has been vouched by P.W.4 in the trial. At the Page 21 of 33 CRLA No.83 of 2013 22 instance of Mr. Katikia, learned Addl. Government Advocate appearing for the State, we have re-appreciated that part of the deposition as made by P.W.4. 56. We find that the victim was carrying feutus of 20-24 weeks only. External injuries as noted by P.W.4 are as follows: (i) Laceration of blood vessels on neck and (ii) Compression of cartilage of neck. 57. It has also been noted that the red patch or abrasion on the left breast was found during the post-mortem examination. But no visible injury was there. Even there was no mark of ligature. 58. We have cautiously scrutinized the testimonies of the witnesses and the documentary evidence. The trial judge has categorically observed that there is no evidence relating to unlawful demand or harassment for dowry. Consequently, the appellants and the accused who have been acquitted from the charge and the other accused persons have been acquitted from the charges under Sections-498-A/406/304-B & Section- 4 of the D.P. Act. 59. No motive could be found from the evidence relating to the unlawful demand, harassment or torture for realization of the dowry etc. CRLA No.83 of 2013 Page 22 of 33 23 Those evidence have been totally disbelieved by the trial judge. As stated, the State has filed no appeal questioning the finding of acquittal. As such, we are persuaded to come to an inference that there is no evidence of motive. There is no direct evidence as regards the assault or applying padded material to pressurize on the neck causing asphyxia. 60. Hence, it has been rightly contended by Mr. Bahali, learned counsel that except the opinion of P.W.4, there is no material which even remotely indicates to the involvement of the appellants including the appellant No.3 in the alleged offence. What is pertinent here to mention that there is no specific finding about the role of the appellants. 61. On the contrary, it is available on the evidence that the appellant No.3 and D.W.1 brought the victim to the hospital for treatment. D.W.1 has categorically stated that by his auto rickshaw, the appellants had shifted the victim (Sasmita Baral) to the D.H.H., Khurda for her treatment. He did not vacillate during the cross-examination. Moreover, the Investigating Officer did not direct his investigation to ascertain by which vehicle, the victim was brought to the hospital by the appellants. 62. D.W.2 has also stated about the seizure of the medical prescription. D.W.3, Sri Purna Chandra Baral, a co-villager has stated CRLA No.83 of 2013 Page 23 of 33 24 that he was examined by the Police. But he was not produced in the trial by the prosecution. He had stated to the Police, according to his version, that the deceased was enjoying happy matrimonial life from the date of marriage until her death. 63. D.W.4, Prof. Dr. Krishna Kumar Mohanty has clearly stated that on 08.07.2008, he had examined Sasmita Baral for broncial asthma. She had dyspnoea with palpitation. She had cough, nausea, anorexia and pedal- oedeman. He prepared the prescription for Sasmita Baral. The patient [the deceased] was advised to come for check up after one week. She was also advised for pathological investigation. It may be noted that she had palpitation which P.W.4 diagnosed as reflection of eschemic heart disease. He has suggested by the prosecution that the asphyxia can be caused by asthma. He has also denied the suggestion that he had never treated Sasmita (the deceased) on 08.07.2008 or 10.07.2008. 64. D.W.5, Dr. Satyaban Nayak has corroborated that the victim was suffering from asthma. Dr. Satyaban Nayak, (D.W.5) has categorically stated that he had examined Sasmita for her pregnancy. He has further stated that “as she was previously taking medicine for asthma, I suggested her to continue with the medicine.” Ext.G was his prescription. CRLA No.83 of 2013 Page 24 of 33 25 65. Having appreciated the evidence on record, three pertinent questions emerge for our consideration. Those are: (I) Whether the opinion of P.W.4 is a substantive evidence to convict the appellants ? (II) Whether in absence of any evidence regarding motive, the conviction in the case is sustainable ? (III) Whether the trial judge has committed error by substituting the alternative opinion of P.W.4 by his own opinion on the basis of the text book ? 66. While visiting the statement of P.W.4, we have found that the opinion that she has expressed is based on certain elements such as, laceration of muscles, blood deposits in the vessels in the neck and compression of cartilage of the neck. But there was no inquiry whether those injuries were ante-mortem or post-mortem. Even if those injuries were ante-mortem on the basis of those elements, can inference be drawn for asphyxia ? P.W.4 herself was confused and that is the reason why she has given a different opinion in the cross-examination. In the cross-examination, she has stated that asphyxia can also be possible by broncospasm. She has testified that swelling can be possible for coming in contact with the railings of the auto-rickshaw while a person is carried in an auto-rickshaw. She has candidly stated that she has not CRLA No.83 of 2013 Page 25 of 33 26 mentioned the size of swelling “as not existing at the time of my examination of the swelling injury”. 67. Therefore, the nature of swelling comes under doubt and moreover, she has not dissected the trachea. In absence of dissection of trachea, how the inference can be drawn regarding asphyxia by creating pressure on the neck by heavy padded materials, as suggested. 68. In the examination-in-chief, she has stated that the pressure inflicted was as such that it had caused damage to underlying muscle/ vessel on the neck with swelling without any mark of injury. This opinion stands contrary to the opinion that has been expressed in para-5 of the cross-examination, as reproduced by us, that at the time of examination, swelling did not exist. 69. The trial judge has not straightway accepted the opinion of P.W.4. Rather, he has discarded the alternative opinion by observing that in the case of asphyxial death due to asthma lungs will appear over- expanded. By pressing on the chest, resuscitation can be done by sending air. CRLA No.83 of 2013 Page 26 of 33 27 70. According to the trial judge, in the case in hand, both the lungs were not over-expanded. This finding according to us is without any basis. The trial judge has in this context, noted as follows: “Secondly, in common medico-legal practice, the unnatural death resulting from lack of oxygen of common occurrence, which are traditionally classified as asphyxial deaths are (I) hanging; (II) strangulation; (III) suffocation; (IV) drowning and (V) traumatic asphyxia i.e. due to compression of chest. Suffocation is the purest form of asphyxial death. On the other hand, the important causes for sudden natural death related to the respiratory system are (i) pulmonary thromboemboli, (ii) Asthma, (iii) Pneumonea, (iv) epiglottitis, (v) Pneumothorax, (vi) haemophysis and (vii) aspiration. 71. The trial judge has acceded that the defence case was categorical that the death of the deceased was due to prolonged suffering from asthma. The observation as made by the trial judge is on the basis of Lyon’s Medical Jurisprudence and Toxicology, 11th Edition, 2012, Chapter LII, Page-817 & Chapter- LIX, Page-955. 72. The trial judge did not take any confirmation from P.W.4 regarding the comments as available in the said text book by exercise of his power under Section-165 of the Evidence Act. Nor had there been disclosure to the accused persons that he will be taking assistance from the text book. The manner in which has been made by the trial judge reliance on the text book is totally unacceptable. CRLA No.83 of 2013 Page 27 of 33 28 73. Hence, we are to appreciate the evidence of P.W.4 without track with the observations of the trial judge. According to us, the post- mortem doctor did not consider whether the appellant was at all suffering from any disease which can cause asphyxia. There was no inquiry to ascertain whether the deceased suffered asphyxia from asthma. 74. On the other hand, what we find that D.Ws.4 & 5 have come forward to state in the trial that the victim was suffering from asthma since long and she was under their treatment. As such, the element of asthma contributing to asphyxia cannot be totally ruled out and we hold that the defence has probalised that aspect and hence, the appellants are entitled to benefit of doubt. 75. The trial judge has cast certain aspersions on D.Ws. 4 & 5 without any basis or foundation. His observations are totally uncalled for. The court can always discard any evidence. Without having evaluated materials on records appropriately, no aspersion on the integrity of the witnesses should be made. On the contrary, the suggestions made to D.Ws. 4 & 5 were squarely denied by them. CRLA No.83 of 2013 Page 28 of 33 29 76. In Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey & others (Judgment dated 26.07.2022 delivered in S.L.P. (Criminal) No.4599 of 2021), the apex court has observed as follows: “It is the trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the “cardio respiratory failure”, the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the “cardio respiratory failure” had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the prosecution as one of its witnesses. Whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after recording of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem report of the doctor in his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor’s statement in Court is alone the substantive evidence. The post mortem report can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert CRLA No.83 of 2013 Page 29 of 33 30 may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court.” [Emphasis added] 77. Another observation as returned by the trial judge and as referred by us, is also unsustainable in law. The trial judge has observed that it was upto the defence to question P.W.4 as to the veracity of her opinion. This statement has been made without reading the entire evidence of P.W.4. 78. In the cross-examination, carried out by the appellants, P.W.4 had given her alternative opinion. Thus, the alternative opinion clearly supports the case of the defence. As such, we hold that on the basis of the post-mortem examination report, and the testimony of P.W.4 in the trial, the trial judge ought not have returned the judgment of conviction. 79. There is no direct evidence in the case in hand. As nobody has seen any incidence of assault, the entire case is based on the circumstantial evidence. But except P.W.4’s testimony, there is no other evidence forming the chain towards a hypothesis of guilt against the appellants. There is no indication also how the projected assault was committed by the appellants. The evidence as laid by the prosecution is CRLA No.83 of 2013 Page 30 of 33 31 concerned mostly with the cruelty for unlawful demand, criminal breach of trust, harassment on demand of dowry etc. Those have been discarded by the trial judge very categorically. Thus, there is no evidence whatsoever against the appellants indicating their involvement in the crime. In the cases of this nature, motive plays an important role. 80. In Pannayar (supra), the apex court has categorically held that absence of motive in a case of circumstantial evidence weighs in favour of the accused and as such, on that ground also, the impugned judgment is liable to be interfered with. 81. The trial judge has definitely committed an error by accepting the selective comments of the text book for arriving at an inference about the cause of death, that to, without taking the opinion of P.W.4. P.W.4 has stated about the two possibilities as regards asphyxia which has been regarded as the cause of death. 82. It is well settled principle of law that, if two views are possible, the benefit shall always go in favour of the accused. It will be apposite to refer a passage from Sharad Bidhichand Sarda vs. State of Maharashtra: (1984) 4 SCC 116. It has been held in Sharad Bidhichand Sarda (supra) as follows: CRLA No.83 of 2013 Page 31 of 33 32 “We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. Another golden thread which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of to be established by is sought circumstantial evidence.” the accused 83. Therefore, the benefit of ambivalence of P.W.4 will go in favour of the appellants. The cumulative result of those observations as made by us above is that the appellants are entitled to get the benefit of doubt which we extend without hesitation. As consequence thereof, the impugned judgment and order of conviction and sentence dated 06.02.2013, as challenged in this appeal, are set-aside. 84. As the appellants No.1, 2 & 4 are on bail, we discharge their sureties from their respective obligations. But so far as the appellant No.3-Susanta Baral @ Barad is concerned, he shall be released forthwith, if not warranted in any other case. 85. In the result, the appeal stands allowed. CRLA No.83 of 2013 Page 32 of 33 33 86. The Registry is directed to send a copy of this judgment to the Adhoc Addl. Sessions Judge, Fast Track Court, Khurda or the Addl. Sessions Judge, Khurda forthwith. 87. Urgent certified copy be granted as per rules. Savitri Ratho, J. I agree (S. Talapatra) Judge (Savitri Ratho) Judge Orissa High Court, Cuttack. The 28thJuly, 2023/Subhasis Mohanty, P.A. Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. I/C Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 06-Aug-2023 10:55:02 CRLA No.83 of 2013 Page 33 of 33