The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.1124 of 2024 (An appeal U/S.374 of the Code of Criminal Procedure, 1973 against the judgment passed by Shri R.K. Das, Addl. Sessions Judge, Athagarh in S.T. Case No.54 of 2021/C.I.S. Case No. 54 of 2021 arising out of Tigiria P.S. Case No.92 of 2020 of the Court of J.M.F.C., Tigiria). Nisamani Sahoo …. Appellant State of Odisha …. Respondent -versus- For Appellants : Mr. S.K. Dash, Advocate : Mr. M.K. Mohanty, Addl. PP For Respondent CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:07.03.2025 G. Satapathy, J. 1. The appellant by way of this criminal appeal seeks to assail the impugned judgment dated 28.10.2024 passed by the learned Addl. Sessions Judge, Athagarh in ST Case No. 54 of CRLA No.1124 of 2024 Page 1 of 26 2021 convicting the appellant for commission of offence punishable U/S. 304 Part-II of the IPC and sentencing her to undergo Rigorous Imprisonment (RI) for five years and to pay a fine of Rs.20,000/- in default whereof, to undergo further RI for a period of six months with the benefit of set off of the pre-trial detention against the substantive sentence. 2. The prosecution case in brief is that one Kabita Sahoo (hereinafter referred to as “the deceased”) had married to one Sunanda Sahoo in the year 2017, but at the time of marriage, Rs.40,000/-, a gold chain and a gold ring were presented to the bride with assurance to give the rest part of demanded dowry of Rs.1,00,000/-. After the marriage, the deceased was subjected to cruelty and ill-treatment by the present appellant, who is the mother-in-law of the deceased, father- in-law-Dibakar Sahoo and husband Sunanda Sahoo CRLA No.1124 of 2024 Page 2 of 26 for demand of rest part of the dowry. However, the deceased conceived and gave birth to male twins, but the babies died soon after their birth and later on, she delivered a girl child and thereafter, the torture and cruelty to the deceased increased for giving birth to a female child. Accordingly, on 09.07.2010 the deceased had informed over phone to her family members that her in-laws had assaulted her without providing meals, but on 11.07.2020 at about 5 PM, one boy namely Omm informed about the death of the deceased to her family. On this news, the brother, mother and father of the deceased went to the in-laws house of the deceased and found them to have committed the murder of the deceased by assaulting her brutally. 2.1. On this incident on 12th July, 2020, the
Legal Reasoning
mother of the deceased-cum-PW9 lodged an FIR under Ext.5 before the OIC, Tigiria-cum-PW.7, who CRLA No.1124 of 2024 Page 3 of 26 registered Tigiria PS Case No.92 of 2020 for commission of offence punishable U/Ss. 498-A/304- B/302/34 of the IPC r/w. Section 4 of the DP Act and took up the investigation of the case, which eventually resulted in submission of charge sheet against the present appellant, her husband and son for the aforesaid offences. 2.2. Finding sufficient materials, the learned J.M.F.C., Tigiria took cognizance of the offences U/Ss. 498-A/304-B/302/34 of the IPC r/w. Section 4 of the DP Act, but the case against the present appellant was split up. However, the trial against the husband and son of the appellant commenced earlier in ST Case No.07 of 2021 in which the learned Addl. Sessions Judge, Athagarh finding no evidence acquitted them, but subsequently, the present appellant faced the trial in the said Court by pleading not guilty to the charge in ST Case No.54 of 2021. In substantiation to the charge in this CRLA No.1124 of 2024 Page 4 of 26 case, the prosecution examined altogether 17 witnesses and proved 13 documents under Exts.1 to 13 as against no evidence whatsoever by the defence. The plea of the appellant in the course of trial was denial simplicitor and false implication. 3. After analyzing the evidence on record upon hearing the parties, the learned trial Court by the impugned judgment while acquitting her for commission of offence punishable U/Ss.498-A/ 304-B/302/34 of the IPC and Section 4 of the DP Act convicted the appellant for offence punishable U/S.304 Part-II of the IPC and sentenced her to the punishment indicated in the first paragraph. 4. In assailing the impugned judgment,
Legal Reasoning
Mr. Saroj Kumar Dash, learned counsel for the appellant while strongly criticizing the appreciation of evidence by the learned trial Court submits that the appellant has been convicted for the offence without any material or evidence, rather the CRLA No.1124 of 2024 Page 5 of 26 learned trial Court was absolutely swayed away by surmise and conjecture to convict the appellant against whom no legally admissible evidence is available. It is further submitted by Mr. Dash that only by relying upon the postmortem report in which the cause of the deceased has been described as homicidal in nature, the learned trial Court has convicted the appellant and such conviction being a moral conviction, cannot sustain in the eye of law. Accordingly, Mr. Dash prays to allow the appeal by acquitting the appellant of the charge. 4.1. On the contrary, Mr. M.K. Mohanty, learned Addl. Public Prosecutor, however, making a feeble attempt to counter the submission as advanced for the appellant, submits that the learned trial Court has rightly convicted the appellant, but he, however, fairly admits that co- accused husband and father-in-law of the deceased CRLA No.1124 of 2024 Page 6 of 26 have been acquitted on similar evidence in the split up trial. Mr. Mohanty, however, prays to dismiss the appeal. 5. After having considered the rival submission upon perusal of record, there appears no dispute about co-accused husband and father- in-law of the deceased have been acquitted of the charge in the trial in ST Case No.07 of 2021, but the present appellant having convicted for offence U/S. 304-II of the IPC in a separate trial, this Court is required to reappreciate the evidence on record
Decision
to find out as to whether the impugned judgment is sustainable in the eye of law or not. It is, however, not in dispute that the prosecution case is entirely based on circumstantial evidence inasmuch as nobody has seen the occurrence, but fact remains that the autopsy conducting doctor while being examined as PW.2 has opined that the cause of death of the deceased is homicidal in nature and CRLA No.1124 of 2024 Page 7 of 26 the injuries found on the deceased were ante- mortem in nature. It is also not in dispute that PW.2 has found four injuries on the person of the deceased. PW.2 in his testimony has also made it clear that injury No.ii and iii may be possible due to compression of jugular vein which can cause immediate asphyxia and multiple nail mark on the area and forcible trauma over the occipital area against a hard surface may lead to immediate shock and haemorrhage leading to death. The evidence of the Doctor has never been challenged by the defence and only suggestion has been given to him that the abrasion on the person of the deceased may be possible by fall on hard and rough surface. True it is that merely on the opinion of the Doctor as to the cause of death of the deceased to be homicidal in nature would not be sufficient to prove the charge of murder against a person, unless it is objectively established by the CRLA No.1124 of 2024 Page 8 of 26 prosecution through legally admissible evidence that it is only the person who has been charged for murder has committed the offence. 6. Once it is considered that the prosecution has established the homicidal death of the deceased, the next point falls for consideration is who is responsible for such death of the deceased to prove the charge of murder against such person. In this case, PW.1 in his testimony has stated that the police conducted inquest over the dead body in his presence and during inquest, he noticed froth on the mouth of the deceased and there was black spot on the left and right side of her(deceased) neck so also black spot on the forehead and right hand of the deceased. PW.4 is the SI of Police, who has stated in his testimony that on 11.07.2020, he was working as SI of Police at Tigiria Police Station and on that day, the IIC registered U.D. Case No. 01 of 2020 on the incident of hanging of the CRLA No.1124 of 2024 Page 9 of 26 deceased and directed him to enquire the matter. In the course of enquiry, the case turned to a cognizable case and P.S. Case No.92 of 2020 was registered and he handed over the inquest record to the IO. This Court has, however, the privilege to go through the evidence of other materials witnesses such as PWs. 3, 5 to 8, 10 to 16, but their evidence is hardly helpful to the prosecution case to prove the charge against the appellant inasmuch as most of them has become hostile and testimony of rest of the witnesses does not throw any light on the incident. 7. In the above situation, only two witnesses are left for the prosecution to establish the charge of murder and out of the two witnesses, PW.9-cum-informant is mother of the deceased and PW.17 is the IO. However, surprisingly PW.9 has not supported the prosecution case and she was declared hostile. The testimony of PW.9 only CRLA No.1124 of 2024 Page 10 of 26 transpires that after marriage while her daughter was in her in-laws house, she died on 11.07.2020 within three years of her marriage and on the relevant day, she got a telephone call from his son- in-law Sunanda that the health condition of the deceased is serious and they are taking her to the hospital for treatment. Immediately, they(family members of the deceased) went to Athagarh hospital and found the deceased lying dead and on suspicion, she(PW9) lodged the FIR under Ext.5. The prosecution has tried its level best to bring some evidence by declaring the informant hostile and cross-examining her, but such effort remained in vain. However, the informant in cross- examination by the defence has admitted that to her information, the deceased was leading happy marital life with her husband and in-laws and there was no quarrel between them relating to any demand of dowry. During her lifetime, the deceased CRLA No.1124 of 2024 Page 11 of 26 had never alleged ill-treatment on her by the appellant and other family members. It is her further admission in the cross-examination that neither the husband of the deceased nor anybody from the side of bride-groom had demanded any dowry in the marriage either before or after the marriage and on the relevant day, the deceased was suffering from illness and while undergoing treatment, she died, but out of anger, she lodged the FIR and later on, she came to know the real fact. This being the evidence of the prime witness, the prosecution is only left with the evidence of PW.17-cum-IO, who is the post-occurrence witness and had completed the formality of the investigation. Further, the evidence of PW.17 hardly be useful to prove the complicity of the appellant. In this sequence of events and on going through the evidence, the learned trial Court of course has found no evidence against the appellant, but being CRLA No.1124 of 2024 Page 12 of 26 swayed away emotionally has recorded the conviction against the appellant which is very much evident from the observation of the learned trial Court at paragraph-9 & 10 of the judgment which reads as under:- “9. From the above, it is clear that no evidence regarding the manner of death is appearing from the occurrence witnesses including the family members so also seizure witnesses. There is absence of eye witness and occurrence. In its absence, the case is to be proved through circumstantial evidence xx xx xx xx xx.” it definitely establishes 10. From the evidence adduced so far, first of all it is not disputed that the deceased is the daughter-in-law of the accused and she was staying in her house at the time of occurrence. Although all the witnesses, the relatives of the deceased have deposed that the deceased was staying at their house happily without any ill feeling for which the motive of the accused persons are not appearing, but still the deceased was living with the accused person just prior to her death. The above fact was never disputed by any of the parties. Hence the accused is to answer under what circumstances she died at their house. The accused is under obligation to satisfy how she(deceased) died. Although the prosecution witnesses have deposed that she died due to prolonged illness, but this fact has not been substantiated with any evidence or facts. Nothing was shown that CRLA No.1124 of 2024 Page 13 of 26 by any of the parties in which disease the deceased was suffering from prior to her death. Further if at all the deceased was suffering from illness, but case record is fact. No totally silent regarding such medical report is there if the deceased died due to any illness nor any treatment papers were produced by any of the parties. The witnesses never clarified which disease she was suffering from and where she was being treated to establish their version. Further, although no allegation of any dowry demand or any cruelty to the deceased is appearing from any of the prosecution witnesses, but still the FIR story and the inquest reveals allegations of dowry demand and torture. Further the IO has also seized the dowry articles in this case. Although seizure witnesses have not supported the factum of seizure, but the seizure can be proved the evidence of the IO alone and non support of the independent seizure witness is not always fatal. Further, for the sake of argument, the prosecution occurrence witnesses are believed on the deceased was staying happily in her in- laws family who was suffering from illness, hence it is not understood why the family members of the deceased lodged the FIR against the accused persons. Not only the FIR was lodged, but also they supported the factum of cruelty and torture and dowry death of the deceased during the entire investigation. Further, in that case, if at all, the deceased was suffering from illness and was admitted at hospital, then why the doctor registered an MLC case and UD case was imitated. The medial officer has not falsely reported about the death. the oral evidences of face value through that its CRLA No.1124 of 2024 Page 14 of 26 Hence, the plea of illness taken by the occurrence witnesses not appears to be genuine and in suspicious circumstance and in absence of any oral evidence, the cause of death will be appraised as per the medical opinion. ” the deceased died (Since some sentences in the above observation does not convey any proper meaning, the observation of the trial Court in exact verbatim has been reproduced.) 8. The above observation of the learned trial Court only reflects the immature understanding of the learned trial Court with regard to the fundamental principle of criminal law that in a criminal case, the prosecution is obliged to prove the guilt of the accused beyond all reasonable doubt to secure the conviction of the accused charged with the crime, but the learned trial Court from the aforesaid observation is understood to have placed the burden on the witnesses and the accused persons to substantiate their plea by closing its eye to the duty of the prosecution to prove the charge in a criminal case. This Court fails CRLA No.1124 of 2024 Page 15 of 26 to understand as to what the witnesses have stated favouring the accused needs to be proved by the said witnesses by producing document and how such theory is relevant. True it is that, if the witnesses are not deposing truth, the learned trial Court could have ignored their evidence, but it cannot shift the burden to the accused and the witnesses or place the reverse burden to prove that the appellant is not guilty of the charge of murder which is the fundamental mistake the learned trial Court has committed while appreciating the evidence and convicting the appellant. 9. Be that as it may, the observation of the learned trial Court as stated in the preceding paragraph itself appears to be a theory that the learned trial Court is hinting about the burden of proof to be placed upon the accused-appellant U/S.106 of the Indian Evidence Act, but law is equally well settled that the provision of Section CRLA No.1124 of 2024 Page 16 of 26 106 of the Indian Evidence Act is never meant to relieve the burden of the prosecution to prove the charge against the accused, but it would come in aid to the prosecution to prove a charge against the accused persons, once it discharges its duty by proving the foundational facts. On this issue, this Court reminds itself to the decision in Shambhu Nath Mehra vs. State of Ajmer; (1956) SCR 199(1956 SCC Online SC 27) which in itself is a locus classicus and in fact has stood the test of time. The relevant part of the said decision reads as under: “Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists.” 9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Indian Evidence Act is certainly not intended to relief it up that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be CRLA No.1124 of 2024 Page 17 of 26 at or for are any that pre-eminently rate impossible, the disproportionately difficult, prosecution to establish the fact which are “especially” within the knowledge of the accused and which he could prove without difficulty for inconvenience. The world “especially” stresses that it means or facts exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and Privy Council has twice refused to construe this Section, as reproduced in certain other acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he tried. These cases are Attygalle Vrs. Emperor (AIR 1936 PC 169) and Senevirtne Vrs. R(1936) 3 All ER 36, 49. 10. It is, therefore, very clear that Section 106 of the Indian Evidence Act will be applied to those cases where the prosecution has succeeded in establishing the foundational facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the CRLA No.1124 of 2024 Page 18 of 26 special knowledge of the accused, but when the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference. In the present case, while examining the evidence on record on the backdrop of the provision of 106 of Indian Evidence Act, it is well established that the present appellant being the mother-in-law was not only staying with the deceased, but also the other family members are also staying with the deceased which is very evident from the co-accused father-in-law and husband facing trial. Further, neither the testimony of the prosecution witness disclosed nor any material was placed on record to show that the deceased was neither having any antagonistic relationship with the appellant nor the appellant was the only person residing in the house and therefore, Section 106 of the Indian Evidence Act has no application in this case. CRLA No.1124 of 2024 Page 19 of 26 11. Viewing the impugned judgment of conviction of the appellant solely on Medical evidence, it is to be reminded here that Post Mortem report is not the conclusive proof of the cause of death since neither it is substantive piece of evidence nor is it exclusive proof of cause of death of the deceased inasmuch as it is an opinion of an expert and can be considered as “opinion evidence”, but it has got definite impact while deciding a case in which the cause of death is a question of fact and the PM report can be used for corroboration while deciding the cause of death and, therefore, the medical evidence is corroborative in nature. It is, however, clarified that it is highly unsafe to base conviction solely on the basis of expert opinion without substantial corroboration. This type evidence being given by expert involves human error and accepting such evidence wholly without corroboration to convict a CRLA No.1124 of 2024 Page 20 of 26 person, who has a fundamental right not to be convicted for criminal charge without the same being established in the standard of beyond all reasonable doubt, would only lead to absurdity and miscarriage of justice. In the present, the only evidence survives for consideration is the opinion of doctor as to cause of death of the deceased, which according to the Doctor-PW 2 is “homicidal in nature”, but a careful glance of entire testimony of the PW-2 would reveal a possibility of cause of death of the deceased to be “homicidal in nature” which is an opinion and, therefore, basing conviction on sole testimony of autopsy conducting Doctor giving opinion as to cause of death of the deceased to be homicidal in nature without any further evidence disclosing the complicity of the accused would give rise to miscarriage of justice. Thus, the present appellant could not have been CRLA No.1124 of 2024 Page 21 of 26 convicted solely on the testimony of the Doctor without further evidence. 12. It is also not understood as to how the learned trial Court has found the appellant guilty of the offence U/S.304 Part-II of the IPC without any discussion, inasmuch as the learned trial Court in paragraph-17 of the impugned judgment has held as under:- (In order to avoid confusion, the observation in exact verbatim is reproduced) “17. Case record reveals, the deceased died under suspicious circumstances to which no witness have seen no any evidence regarding how and in what manner she was killed. Hence the intention of the accused cannot be gather the above circumstance. considering Hence only on the basis of presumption under law, it is to be gathered that the accused only caused the death of the deceased without anything more. Here culpable homicide is proved as the death is homicidal, but whether this culpability homicide amounts to murder or not is nowhere established by the prosecution. The prosecution has not established under what circumstance and in which manner the accused caused the death of the deceased. No where it appears that the CRLA No.1124 of 2024 Page 22 of 26 or any provocation accused assaulted the deceased with his full knowledge and intention with due deliberations. Whether there was grave or sudden other extenuating circumstances or her conduct falls under any of the exception U/S. 300 of the IPC cannot be ruled out. Although the death by the accused is proved, but the manner is not proved. In such circumstance, the manner of death which is the determining factor to ascertain if the conduct falls under culpable homicide or murder is missing. Hence there is suspicion regarding manner of death and two views are possible. Hence, in such a case, the accused is entitled for lenient view due to doubt in the evidence regarding the manner of death. Hence, as per law, in case the than one offence category and there is doubt which offence is committed, then the accused is entitled for the lesser offence. Hence, the accused will be held liable for the offence of culpable homicide U/S.299 which is a lesser offence than the offence of murder U/S. 302 of the IPC. Hence, the above act of the accused falls under the category of culpable homicide U/S.299 of the IPC which is punishable U/S. 304 of the IPC xxx xx xx xxx xx xx.” falls under more The aforesaid observation of the learned trial Court in fact brings out a third case which is the imagination of the learned trial Court because no evidence is available on record to CRLA No.1124 of 2024 Page 23 of 26 suggest anything about commission of crime by the appellant. The above discussion by the learned trial Court clearly demonstrates a case where no prudent Sessions Judge can ever convict a person on suspicion ignoring the principle of law that suspicion howsoever strong cannot take the place of proof. In the aforesaid situation, the observation offered by the learned trial Court is unacceptable and convicting a person without any evidence in fact is an assault to the fundamental right to liberty of a person as guaranteed under Article 21 of the Constitution of India. 13. From the discussions made hereinabove together with the reappreciation of evidence, this Court does not find any iota of evidence to hold the appellant guilty of any offence, but ignoring the principle of law and without appreciating the evidence on record in proper prospective, the learned trial Court has proceeded to convict the CRLA No.1124 of 2024 Page 24 of 26 appellant only on the basis of emotion and personal biases. However, it is the fundamental principle of law that a person cannot be convicted for any offence without the charge being proved against him in the standard of proof beyond all reasonable doubt. The necessary conclusion of the discussion made hereinabove is the failure of the prosecution to prove the guilt of the appellant beyond all reasonable doubt for any offence and therefore, the impugned judgment of conviction and sentence of the appellant being unsustainable in the eye of law are hereby set aside. 14. In the result, the criminal appeal stands allowed, but no order as to costs. Ergo the impugned judgment of conviction and order of sentence dated 28.10.2024 passed by the learned Addl. Sessions Judge, Athagarh in ST Case No. 54 of 2021 are hereby set aside. The appellant is hereby acquitted of the charge and she being in jail CRLA No.1124 of 2024 Page 25 of 26 custody be set at liberty if her detention is not otherwise required in any other case. Since the appellant is in jail custody, warrant of release on appeal in Form No.(M)78 of GR & CO, (Criminal) Vol-II be immediately sent to the Officer- in-charge of the concerned jail through e-mail or any other faster communication mode in view of the Rule 155 of the GR & CO,(Criminal) Vol-I. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 7th day of March, 2025/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 10-Mar-2025 14:32:57 CRLA No.1124 of 2024 Page 26 of 26