Orissa High Court
Nisamani Sahoo vs State Of Odisha on 7 March, 2025
Author: G. Satapathy
Bench: G. Satapathy
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
-versus-
State of Odisha .... Respondent
For Appellants : Mr. S.K. Dash, Advocate
For : Mr. M.K. Mohanty, Addl. PP
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
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,
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
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.”
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 it definitely establishes that 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
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
totally silent regarding such fact. No
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 through 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 oral evidences of the
prosecution occurrence witnesses are
believed on its face value that 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.
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 the deceased died in
suspicious circumstance and in absence of
any oral evidence, the cause of death will
be appraised as per the medical opinion. ”
(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 statedfavouring 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 torelieve 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
impossible, or at any rate
disproportionately difficult, for the
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
facts that are pre-eminently or
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 Doctorwithout 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
considering the above circumstance.
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
accused assaulted the deceased with his
full knowledge and intention with due
deliberations. Whether there was grave or
sudden provocation or any 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
offence falls under more than one
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.”
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