Kishanlal Vs State

GH
ORISS

IN THE HIGH COURT OF ORISSA, CUTTACK

CRA No, 272 of 1998

An appeal from the judgment and order dated 25.08.1998 passed by the Addl. Sessions Judge, Rairangpur in Sessions Trial Case No.8/53 of 1998.

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Kisanlal Sahu Appellant -Versus State of Odisha Respondent For Appellant: Mr. Debi Prasad Dhalasamanta Advocate For Respondent: Mr. Jateswar Nayak Addl, Govt. Advocate

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PRESENT:

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THE HONOURABLE MR. JUSTICE S. K. SAHOO

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AND

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THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing and Judgment: 22.07.2024 S N.20s

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By the Bench: The Appellant, Kisanlal Sahu, faced trial in the Court of

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the learned Additional Sessions Judge, Rairangpur in Sessions Trial Case No.8/53 of 1998, for the offence punishable under section 302 of the Indian Penal Code (hereinafter referred to as the I.P.C."), on

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the accusation that in the intervening night of 30/31.08.1997 at Bahalda, he committed murder of Nirmala Sahu, the wife of Lakhanlal Sahu (P.W.3) of village/P.S.-Bahalda in the district of Mayurbhanj.

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The learned trial Court, vide judgment and order dated 25.08.1998, found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for life.

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Prosecution Case :

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The prosecution case, in short, as per the first information report (Ext.4) lodged by P.W.3, Lakhanlal Sahu, before the Officer InCharge of Bahalda police station, namely, Prasanta Kumar Bisoi (P.W.10) on 31.08.1997, in short, is that on 30.08.1997, he along with his wife (deceased) and children after taking their dinner, went to sleep. At about 1:30 a.m., P.W.3 woke up from the sleep and found that the deceased was not there on her bed. He sent his elder daughter Madhumita Sahu (P.W.4) to see whether the deceased had gone to attend the call of nature. P.W.4 returned and informed P.W.3 that the deceased had indeed gone to attend the call of nature. After some time, when the deceased did not return, P.W.3 himself went and found the deceased washing her hands and feet after attending to the call of nature. The deceased told P.W.3 that she had to take bath after water comes in the tap and thereafter, she would come

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CRA No.272 of 1998 Page 2 of 18

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home and asked P.W.3 to go back to sleep. Accordingly, P.W.3 returned and slept. At about 3:30 a.m. to 4:00 a.m. when P.W.3 heard the sound of water coming from the tap, he came out and found the deceased lying near the Tulasi Chaura, unresponsive to his call. On going closer, he found that she was lying dead in a pool of blood. P.W.4 also came there and tried to wake up her mother, but she did not respond. Thereafter, P.W.3 called his elder brother, Madanlal Sahu (P.W.6), and other co-villagers.

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It is further stated in the first information report that the appellant was the elder brother of the informant (P.W.3) and there was land dispute between them, for which cases were also pending in the Court of law. It is further stated that in the year 1997, the appellant had broken the finger of P.W.3 over some dispute, which was later amicably settled between the parties. Thereafter, there was also a dispute between them regarding the issues of water connection and toilet and the appellant had threatened to commit murder of someone in the family over partition of property. Believing that the appellant and his wife were involved in the commission of murder of the deceased by assaulting her with some sharp cutting weapon, the first information report was lodged.

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On the basis of such written report, P.W.10 registered Bahalda P.S. Case No.45 dated 31.08.1997 under section 302 of the I.P.C. against unknown persons.

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After registration of the case, P.W.10 himself took up investigation, visited the spot, prepared the spot map (Ext.9), examined the informant and witnesses, conducted inquest over the dead body and prepared the inquest report (Ext.5), sent the dead body for post-mortem examination, seized blood stained earth and sample earth and blood-stained blue half pant and white half shirt (school uniform of the son of the deceased) vide seizure list (Ext.8) and arrested the appellant. While in police custody, the appellant gave a statement to have concealed iron ‘Katian’ (chopper) and led the police party to give recovery of the iron ‘Katian’ (chopper) from the top of the almirah inside his kitchen, which was seized as per seizure list (Ext.6). He also, while in police custody, gave information regarding concealment of his lungi, banian and chadi inside a ‘Dekichi’ submerged in water in inverted position and took the police party to his bathroom and gave recovery of the same, which was seized as per seizure list (Ext.7). The appellant was sent for medical examination and his nail clippings etc. were produced by the constable and seized as per seizure list (Ext.10). The wearing apparels of the deceased were also produced by the constable after

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CRA No.272 of 1998 Page 4 of 18

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post-mortem examination and seized as per seizure list (Ext.3). The Investigating Officer produced M.O.I., the iron ‘Katian’, before the doctor P.W.1 and sought for an opinion regarding possibility of the injuries sustained by the deceased with such weapon, and received the query report (Ext.2). He also sent the seized articles for chemical examination through Court and on completion of investigation, submitted the charge sheet against the appellant under section 302 I.P.C.

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After commitment of the case to the Court of Session, charge was framed against the appellant as aforesaid, to which he pleaded not guilty and claimed to be tried and accordingly, the sessions trial procedure was resorted to establish his guilt and prove the prosecution case.

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Prosecution Witnesses, Exhibits & M.Os. :

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3 During the course of trial, in order to prove its case, the prosecution examined ten witnesses.

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P.W.1, Dr. Sudhir Kumar Satpathy, Assistant Surgeon, S.D. Hospital, Rairangpur, stated that on police requisition and on the identification by Police Havildar B.K. Mohapatra, he conducted the post-mortem examination over the dead body of the deceased, wife of Lachhaman Sahu of village Bahalda, P.S. Bahalda and he proved

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the post mortem report (Ext.1) and he also gave opinion to the query made by the I.O. regarding possibility of the injury by the weapon seized as per his query report Ext.2.

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P.W.2, Sushil Chandra Giri, Police Constable, stated that on the day of the incident, after the post-mortem examination, on his production at the place of occurrence, the O.I.C. seized a saree, saya, blouse, chudi, bangles, and collected sample blood of the deceased and his command certificate, a seizure list vide Ext.3 was prepared and he signed the same.

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P.W.3 Lakhanlal Sahu, younger brother of the appellant and the husband of the deceased stated that he found his wife missing from her bed. He asked his daughter, Madhumita Sahu (P.W.4), to find out if her mother had gone to the latrine. He further stated to have noticed the deceased lying in the courtyard in a pool of blood and further stated about the previous dispute between him and the appellant. He is also the informant in the case.

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P.W.4 Madhumita Sahu, daughter of P.W.3, stated that

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on being asked by her father, she went to call her mother (deceased), who had gone to the latrine and subsequently he found her mother lying dead near the varandha.

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P.W.5 Srimanta Mishra is a witness to the inquest over

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the dead body of the deceased and he proved the inquest over the dead body.

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P.W.6 Madanlal Sahu, elder brother of the appellant, stated that the appellant and P.W.3 got separated and they were living in a separate mess, and after four to five years of separation, they used to quarrel at intervals but later compromised. They had constructed a common latrine while living separately but they were quarreling at intervals and were compromising.

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P.W.7 Kasi @ Sk. Mahiuddin, who knew the appellant and his brother (P.W.3) and the deceased, stated that in his presence, and in the presence of Shyamlal and P.W.3, the appellant gave information about having concealed the ‘Katian’, the weapon of offence inside his kitchen so also his lungi, chadi and banian. He then led them to the spot and produced the ‘Katian’ from the top of the almirah in the kitchen, which the police seized under seizure list vide Ext. 6 and the dress materials under seizure list vide Ext.7.

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P.W.8 Bikash Agarwalla, who also knew the appellant his brother (P.W.3) and the wife (deceased), stated that in his presence and from the courtyard of P.W.3, police seized blood-stained earth,

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sample earth and a blood-stained half pant and shirt as per seizure list Ext.8 and he signed the same.

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P.W.9 Shyamlal Agarwalla, who knew the appellant, stated that in his presence, and in the presence of P.W.7 and the younger brother of the appellant, the appellant gave information about the concealment of a ‘Katian’ in the kitchen and wearing apparels in a ‘Dekichi’ in his house and then gave recovery of the ‘Katian’ (M.O.I.) from the top of the almirah kept in his kitchen, which the police seized under seizure list.

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P.W.10 Prasanta Kumar Bisoi, O.I.C., Bahalda P.S. is the Investigating Officer in the case.

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The prosecution also exhibited eleven documents: Ext.1 is the post-mortem examination report; Ext.2 is the opinion of P.W.1; Ext.3 is the seizure list; Ext.4 is the written F.I.R.; Ext.5 is the inquest report; Ext.6 is the seizure list; Ext.7 is the seizure list; Ext.8 is the seizure list; Ext.9 is the spot map; Ext.10 is the seizure list; and Ext.11 is the chemical examination report.

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The prosecution proved four material objects. M.O.I is the katuri, M.O.II is the lungi, M.O.III is the banian and M.O.IV is the chadi.

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CRA No.272 of 1998 Page 8 of 18

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Defence Plea :

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The defence plea of the appellant is one of denial and it is further pleaded on the account of civil dispute, P.W.3 himself killed the deceased and falsely entangled the appellant to take revenge.

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Trial Court findings :

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The learned trial Court after assessing the oral as well as documentary evidence on record, came to hold that there was long standing dispute between the appellant and the deceased over the enjoyment of the common water tap. There are no eye witnesses to the commission of murder and the prosecution has mainly relied on the evidence of leading to discovery and the result of chemical examination of the seized exhibits. It is further held that the deceased died a homicidal death and previous property dispute was the reason behind commission of murder. It considered that on the night of 30.08.1997, in the common courtyard of the appellant and P.W.3, and a little away from the Tulasi Chaura towards the house of the appellant, the dead body of the deceased was found lying. The appellant led to the recovery of M.O.I (Katari) and M.O.II to M.O.IV (blood-stained wearing apparels) which he had kept concealed. The opinion of the doctor (P.W.1) indicated the possibility of the injuries sustained by the deceased having been caused by M.O.I. The

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CRA No.272 of 1998 Page 9 of 18

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chemical examination report revealed that the blood found on the recovered banian and undergarments of the appellant tallied with the sample blood of the deceased and the blood found on the seized wearing apparels of the deceased. There was also evidence of dispute over partition of property between the parties and of a quarrel between P.W.3 on one side and the appellant and his wife on the other, wherein the appellant had expressed that the murder of any member of the family would only be a solution to pave the way for partition. On such evidence, the learned trial Court came to the irresistible conclusion that it was the appellant and none else, who was the author of the crime and accordingly held that the prosecution has well succeeded in bringing home the charge against the appellant and thus found him guilty under section 302 of the I.P.C.

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Contentions of the parties :

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Mr. Debi Prasad Dhalsamanta, learned counsel appearing for the appellant argued that admittedly there is no direct evidence in the case and it rests entirely on circumstantial evidence, the main circumstances being the recovery of the weapon of offence and the wearing apparels of the appellant at his instance on the basis of his statement made before the Investigating Officer. However, from the chemical examination report, it appears that no bloodstains were found on the iron chopper and so far as the wearing apparels of the

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appellant are concerned, there is no cogent evidence to show that

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after its seizure, those were kept in safe custody before being sent for chemical examination through Court. Therefore, the learned trial Court erred in giving any importance to the findings in the chemical examination report (Ext.11). It is further argued that if such evidence of C.E. report findings are taken out of consideration, the remaining materials are insufficient to form a complete chain so as to come to the irresistible conclusion that it was the appellant and the appellant alone, who is the author of the crime. He further argued that in view of the civil dispute between the parties, the false implication of the appellant in the commission of murder cannot be ruled out and hence, it is a fit case for giving benefit of doubt in favour of the appellant.

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Mr. Jateswar Nayak, learned Additional Government Advocate, on the other hand, supported the impugned judgment and argued that the dead body of the deceased was found close to the house of the appellant and no third person except the family of the appellant and the deceased were residing therein. The premises were enclosed by a compound wall and the door was closed. He further argued that the learned trial Court rightly took into account the previous disputes between the parties, the threats given by the appellant as well as leading to discovery of the material objects,

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particularly the banian and underwear, which, as per the chemical examination report, were found to have human blood of AB group that tallied with the blood group of the deceased. According to him, since the appellant has not offered any explanation regarding the incriminating the circumstances in his statement recorded under section 313 Cr.P.C., therefore, the conviction recorded by the learned trial Court deserves to be upheld.

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Principle for appreciation of evidence in a case based on

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circumstantial evidence :

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Adverting to the contention raised by the learned counsel for the respective parties, since the case is based on circumstantial evidence, we are to keep in mind the oft-quoted decision of the Hon’ble Supreme Court in the case Sharad Birdhichand Sarda -Vrs.- State of Maharashtra in (1984) 4 Supreme Court Cases 116 , wherein the following principles laid down that in order to convict an accused on the basis of the circumstantial evidence, the Court has to come the following conclusion:-

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“1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

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The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

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The circumstances should be of a conclusive nature and tendency;

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They should exclude every possible hypothesis except the one to be proved; and

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There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence.”

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Homicidal death of the deceased

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In the case at hand, the homicidal death of the deceased is not disputed, inasmuch as the doctor (P.W.1), who conducted postmortem examination over the dead body of the deceased on 31.08.1997 at S.D. Hospital Rairangpur, has stated that he noticed the following injuries:-

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“External examination revealed thin built rigor mortis is present in all four limbs, the upper part of body, head, neck and both upper extremities were stained with dried blood.

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i) On the left parietal bone, incised wounds six in numbers running parallel to each other before backwards varying between 4 to 6 inch x 1” x bone deep;

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ii) One bruise 1”x1/2” over the eye lid;

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iii) On deep dissection, the underline muscle fascia, and other layers of the skull under the injured area were cut. The parietal bone and the adjoining frontal bone had compound fractures. The bone spicules have driven deep to the brain substance at one place and had also come out in another place. The underlying meninges and brain substance have been lacerated; there was cerebral haematoma on the left cerebrum (Parietal bone).

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iv) The stomach was filled with mucous and undigested food articles. All other organs and viscera were pale.”

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The doctor further opined that the death was due to haemorrhage and shock resulting from injury to the skull bone, and that the time since death was 12 to 24 hours prior to the postmortem examination. He proved the post-mortem examination report as Ext.1. He also examined the iron chopper seized at the instance of the appellant and produced by the Investigating Officer (P.W.10) and opined that the injuries on the deceased could have been caused by such a weapon. The query report has been marked vide Ext.2.

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Thus, the finding of the learned trial Court that the deceased met with a homicidal death is quite justified.

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Seizure of weapons & wearing apparels:

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The learned trial Court has relied upon the recovery of Katari (M.O.I) and the wearing apparels, which were seized articles and found to contain human blood.

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The Investigating Officer (P.W.10) stated that after arresting the appellant, while in police custody, the appellant gave information regarding concealment of the iron Katari on the top of the almirah inside his kitchen and led to its recovery. He proved the seizure list (Ext.6) and M.O.I is that Katari. The witnesses to the seizure, P.W.7 and P.W.9 have also corroborated to the said recovery. Similarly, regarding the seizure of the wearing apparels of the appellant, P.W.10 has stated that while in police custody, the appellant gave information regarding concealment of his lungi, banian and chadi inside a dekichi submerged in water in an inverted position inside his bathroom and led to their recovery. The lungi has been marked as M.O.II, the banian as M.O.III and the underwear as M.O.IV and the relevant seizure list was proved as Ext.7. P.W.7 and P.W.9 also supported the seizure of the wearing apparels.

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However, neither in the evidence of the Investigating Officer (P.W.10) nor in the evidence of the two seizure witnesses i.e. P.W.7 and P.W.9, there is anything to indicate that after the seizure

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CRA No.272 of 1998 Page 15 of 18

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of Katari (M.O.I) or the wearing apparels (M.O.II, M.O.III & M.O.IV), those were kept under seal. The evidence of the P.W.10, the Investigating Officer, is completely silent as to what he did with the seized articles after its seizure and before its production in Court for chemical examination. The Malkhana register has not been produced in this case and although the articles were seized on 31.08.1997, but those were produced in the Court only on 27.09.1997. In the forwarding report, there is no mention that any of the articles were in sealed condition. The order sheet dated 27.09.1997 of the learned S.D.J.M., Rairangpur, reads as follows:-

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“27.09.1997 : The record is put up today as the I.O. has made a prayer dated 26.09.1997 to send the seized items to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination. I.O. has also submitted the seizure list dated 02.09.1997 (10:00 AM) in respect of the articles mentioned therein. Prayer of the I.O. is allowed. Send the Exts.(T) the I.O. for chemical examination to S.F.S.L, Rasulgarh, Bhubaneswar.”

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The order sheet is completely silent regarding the manner in which the articles were produced and whether the Court had put any seal on the seized items. The examination report of S.F.S.L., Rasulgarh, Bhubaneswar indicates that the articles were received in a packet on 04.10.1997. If the articles were handed over to the

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Investigating Officer (P.W.10) by the learned S.D.J.M., Rairangpur on 27.09.1997, there is no explanation for the delay in producing those articles before the S.F.S.L. on 04.10.1997 or as to the condition in which the articles were kept until its production. Therefore, in view of the following discussions, a question mark is raised on the safe custody of the seized articles after its seizure and till it is produced for C.E. examination. When the same is a doubtful feature, it is very difficult to place reliance on the findings of the chemical examination report regarding the matching of the blood group found on the underwear and banian of the appellant with that of the deceased.

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If this vital piece of evidence is left out of consideration, the remaining evidence, such as the previous dispute between the parties and the threats allegedly given by the appellant, in our considered opinion, cannot form such a chain of circumstances so as to lead to the irresistible conclusion that it was the appellant and the appellant alone, who was the author of the crime.

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Conclusion:

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Accordingly, we hold that the impugned judgment and order of conviction is based on surmise and cannot be sustained in the eyes of law and thus the same is hereby set aside. The appellant is acquitted of the charge under section 302 of the I.P.C.

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The Criminal Appeal is allowed.

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The appellant, who is on bail by order of this Court, is hereby discharged from the liability of the bail bonds and the surety bonds stand also cancelled.

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The learned trial Court record with a copy of this judgment be communicated to the concerned Court forthwith for information and necessary action.

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( S. K. Sahoo) Judge

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…………………………… (Chittaranjan Dash) Judge

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Orissa High Court The 22^nd July, 2025/AKPradhan/Bijay

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Signature Not Verified

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Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORI SSA Date: 08-Aug-2025 14:19:16