Orissa High Court
State Of Odisha vs Tatung Munda on 15 April, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, Cuttack
Date: 22-Apr-2025 10:45:21
IN THE HIGH COURT OF ORISSA AT CUTTACK
GCRLA No. 66 of 2003
(From the judgment dated 2nd June, 2001 of learned Sessions Judge,
Keonjhar passed in S.T. Case No.135 of 1997)
State of Odisha .... Appellant
-versus-
Tatung Munda .... Respondent
Advocate(s) appeared in this case:-
For Appellant : Ms. B.L. Tripathy, Additional
Standing Counsel
For Respondent : Mr. Biswajit Nayak, Amicus Curiae
CORAM: MR. JUSTICE B.P. ROUTRAY
MISS JUSTICE SAVITRI RATHO
JUDGMENT
15th April, 2025
B.P. Routray, J.
1. Heard Ms. B.L. Tripathy, learned Additional Standing Counsel
for the State and Mr. B. Nayak, learned Amicus Curiae for the
Respondent.
2. The charge was for commission of offence under Section 302 of
the Indian Penal Code.
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3. According to the prosecution case the Respondent committed
murder of his wife by throttling, on the night of 4th November, 1996.
4. The admitted fact remains that the deceased and the Respondent
were wife and husband staying at village Ladapani under Nayakote
Police Station in the district of Keonjhar in the same house. They
had four children staying along with them before the occurrence
took place. It is alleged that on the evening of 4th November, 1996
the deceased along with her husband (present Respondent - accused)
slept in a separate room in their house along with their children and
in the morning the deceased was found dead. The matter was
reported to the police and UD case No.5 dated 5th November, 1996
was registered. Inquest was held and the dead body was sent for post
mortem examination. Upon post mortem examination the report of
the doctor was received with his opinion that the death is due to
homicidal throttling. So, on receipt of such report from the post
mortem doctor (P.W.6), the UD case was registered as a case of
murder being numbered as Nayakote P.S. Case No.1 of 1997 dated
4th February, 1997. The investigation in the UD case was conducted
by P.W.10 and upon registration of the cognizable case, the
investigation was taken up by P.W.11 who at that point of time was
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working as Officer-in-Charge of Nayakote Police Station. The
accused was arrested on 29th April, 1997 and forwarded to custody.
The Respondent - accused took the plea of denial and stood his
trial being charged for the offence of commission of murder.
5. Prosecution examined 11 witnesses and adduced 8 documents in
support of their case, whereas the defence did not adduce any
evidence.
6. Among the witnesses examined for prosecution, P.W.1 is the
informant, P.W.6 is the doctor who conducted post mortem
examination, P.W.10 is the investigating officer in respect of the UD
case and P.W.11 is the investigating officer of the police case after it
registered as a case of murder.
7. What is relevant here to describe at the outset that finding the
deceased dead on the morning of 5th November, 1996, P.W.1
reported the matter to the police which was registered as UD case.
At that time the Respondent - accused contended that he does not
know anything about the cause of death of the deceased.
Subsequently finding that the cause of death is asphyxia due to
homicidal throttling, suspicion was centered on the accused who
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stayed with the deceased in the same room on that occurrence night.
The opinion given by the doctor upon post mortem examination is
not contradicted nor rebutted despite a comprehensive cross-
examination was put to P.W.6. According to P.W.6, he found
crescentric shaped bruise mark on front side of neck which is
consistent with homicidal throttling taking note of breadth and
length of such mark. It is confirmed by P.W.6 during his cross-
examination that the crescent shape of mark on the neck is possible
by pressure with any hard substance like palm and fingers. Except
such mark on the dead body of the deceased no further external
injury could be noticed and as per opinion of the doctor (P.W.6) the
body was partially decomposed and skin was peeled out. It was also
noticed that frothy discharge came out from the nostril mixed with
blood, associated with defecation and bleeding from vagina. Thus,
based on all such symptoms and signs marked on the dead body the
opinion of the post mortem doctor regarding cause of death as
homicidal could not be disturbed to opine otherwise. It is also agreed
by the prosecution that the death of the deceased is due to asphyxia
by homicidal throttling. Upon examination of all such facts
including the opinion of the doctor, we confirm such finding of
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P.W.6 in favour of the prosecution case that the deceased died
homicidal death.
8. Next coming to see the complicity of Respondent as the author
of murder of the deceased, it is found from the record that no direct
evidence is available there to rope the Respondent for the alleged
offence. It is true that according to evidence of different witnesses,
the Respondent stayed with the deceased in the same room along
with their children on that fateful night. P.W.8, the brother of the
deceased has stated in his evidence that the Respondent and
deceased slept with the children in their house in a separate room.
This is corroborated by different other witnesses viz. P.W.1 (the
informant), P.W.2, 3, 4, 7, 8 and 9.
It is true that as per the principles under Section 106 of the
Evidence Act an adverse presumption has to be drawn against the
accused and the burden is on the person whose special knowledge is
there. When the accused fails to explain or gives false explanation as
to what happened in that room in the occurrence night when he was
present along with the deceased, such presumption adverse to the
accused has to be taken. At the same time it cannot be denied on the
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part of the prosecution to discharge their initial burden of
establishing prima facie case regarding guilt of the accused beyond
all reasonable doubt and the law is well settled that the presumption
would not be of any help to the prosecution unless the initial burden
of prima facie case against the accused is discharged by the
prosecution. (See Sawal Das v. State, AIR 1974 SC 778 : M.
Krishna Reddy v. State, (1992) 4 SCC 45)
9. In State of M.P. v. Balveer Singh, 2025 SCC online SC 390, the
Supreme Court taking note of several earlier decisions have
explained the principles relating to application of reverse burden of
proof on the accused based on the principles noted in section 106 of
the Indian Evidence Act. It is observed by the Supreme court that;
78. To recapitulate the foregoing : What lies at the
bottom of the various rules shifting the evidential
burden or burden of introducing evidence in proof of
one's case as opposed to the persuasive burden or
burden of proof, i.e., of proving all the issues
remaining with the prosecution and which never
shift is the idea that it is impossible for the
prosecution to give wholly convincing evidence on
certain issues from its own hand and it is therefore
for the accused to give evidence on them if he
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wishes to escape. Positive facts must always be
proved by the prosecution. But the same rule cannot
always apply to negative facts. It is not for the
prosecution to anticipate and eliminate all possible
defences or circumstances which may exonerate an
accused. Again, when a person does not act with
some intention other than that which the character
and circumstances of the act suggest, it is not for the
prosecution to eliminate all the other possible
intentions. If the accused had a different intention
that is a fact especially within his knowledge and
which he must prove (see Professor Glanville
Williams--Proof of Guilt, Ch. 7, page 127 and
following) and the interesting discussion--para 527
negative averments and para 528 -- "require
affirmative counter-evidence" at page 438 and foil,
of Kenny's outlines of Criminal Law, 17th Edn.
1958.
79. But Section 106 has no application to cases
where the fact in question, having regard to its
nature, is such as to be capable of being known not
only to the accused but also to others, if they
happened to be present when it took place. The
intention underlying the act or conduct of any
individual is seldom a matter which can be
conclusively established; it is indeed only known to
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the person in whose mind the intention is conceived.
Therefore, if the prosecution has established that the
character and circumstance of an act suggest that it
was done with a particular intention, then under
illustration (a) to this section, it may be assumed that
he had that intention, unless he proves the contrary.
80. A manifest distinction exists between the
burden of proof and the burden of going forward
with the evidence. Generally, the burden of proof
upon any affirmative proposition necessary to be
established as the foundation of an issue does not
shift, but the burden of evidence or the burden of
explanation may shift from one side to the other
according to the testimony. Thus, if the prosecution
has offered evidence, which if believed by the court,
would convince them of the accused's guilt beyond a
reasonable doubt, the accused, if in a position,
should go forward with countervailing evidence, if
he has such evidence. When facts are peculiarly
within the knowledge of the accused, the burden is
on him to present evidence of such facts, whether
the proposition is an affirmative or negative one. He
is not required to do so even though a prima facie
case has been established, for the court must still
find that he is guilty beyond a reasonable doubt
before it can convict. However, the accused's failure
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to present evidence on his behalf may be regarded
by the court as confirming the conclusion indicated
by the evidence presented by the prosecution or as
confirming presumptions which might arise
therefrom. Although not legally required to produce
evidence on his own behalf, the accused may
therefore as a practical matter find it essential to go
forward with proof. This does not alter the burden of
proof resting upon the prosecution [See : Balvir
Singh v. State of Uttarakhand, 2023 SCC OnLine
SC 1261 and Anees v. State Govt. of NCT, 2024
INSC 368] iv. What is "prima facie case"
(foundational facts) in the context of Section 106
of the Evidence Act?"
10. As in the instant case because the death has been proved as per
medical evidence as homicidal in nature by strangulation, the burden
cannot come on the accused to explain satisfactorily regarding
circumstances that happened in the night. The right of the accused to
remain silent cannot be infringed by aid of such presumption taken
under Section 106 without prima facie satisfaction of the burden of
proof on the prosecution. It is to be noticed here that it is not the
accused alone stayed with the deceased in the room on the
occurrence night but along with them four children of theirs' had
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also stayed. This is the clear evidence brought on record by P.W.8.
But it is seen that none of the children of the deceased and accused
have been examined by the prosecution. Prosecution has also not
explained any reason for their non-examination who could have
been the best witnesses to throw light on the commission of murder
of the deceased or what happened in the room in that night. No such
dubious part on the subsequent conduct of the accused is noticed.
Without finding anything suspicious at the crime scene, the
Unnatural Death case was registered and continued till receipt of
post-mortem examination report suggesting homicidal death of the
deceased. No other circumstance suspecting guilt of the accused
could be brought by prosecution against the accused.
11. Upon thorough verification of the materials brought on record it
is seen that nothing more than the statements of the witnesses
regarding staying of the deceased and accused in that night has been
surfaced by the prosecution. In a case of circumstantial evidence,
unless the chain is complete and all such circumstances do speak
against the innocence of the accused, the guilt of the accused cannot
be said to have been established beyond all reasonable doubt. The
principles of circumstantial evidence have been well settled starting
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from the case Hanumant v. State of Madhya Pradesh, AIR 1952
SC 343, Sharad Birdhi Chand Sarda v. State of Maharashtra, 1984
AIR 1622 and State of M.P. v. Balveer Singh, 2025 SCC online SC
12. We do not find any chain of circumstances complete in the
present case to establish guilt of the Respondent beyond all
reasonable doubts. Rather, as opined by learned trial Judge, the
accused is entitled for benefit of doubt. In the circumstances, upon
analysis of all such evidences, in our opinion the prosecution has
failed to establish the charge against the Respondent beyond all
reasonable doubts and as such we do not find any reason to interfere
with the order of acquittal.
13. The appeal is dismissed.
(B.P. Routray)
Judge
(Savitri Ratho)
Judge
M..K. Panda, P.A.
