Orissa High Court

Kisanlal Sahu vs State Of Odisha on 22 July, 2025

Author: S. K. Sahoo

Bench: S. K. Sahoo

                   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.
                           ---------------------

          Kisanlal Sahu               .......                   Appellant


                                     -Versus-

          State of Odisha             .......                   Respondent


               For Appellant:                   Mr. Debi Prasad Dhalasamanta
                                                Advocate

               For Respondent:               Mr. Jateswar Nayak
                                            Addl. Govt. Advocate
                               ---------------------

  P R E S E N T:
                 THE HONOURABLE MR. JUSTICE S. K. SAHOO
                                         AND

THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing and Judgment: 22.07.2024

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

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 //2//

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.

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.

Prosecution Case:

2. The prosecution case, in short, as per the first information

report (Ext.4) lodged by P.W.3, Lakhanlal Sahu, before the Officer In-

Charge 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

//3//

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.

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.

//4//

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.

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

//5//

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.

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.

Prosecution Witnesses, Exhibits & M.Os.:

3 During the course of trial, in order to prove its case, the

prosecution examined ten witnesses.

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

//6//

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.

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.

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.

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

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.

//7//

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

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

dead body.

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.

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.

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,

//8//

sample earth and a blood-stained half pant and shirt as per seizure

list Ext.8 and he signed the same.

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.

P.W.10 Prasanta Kumar Bisoi, O.I.C., Bahalda P.S. is the

Investigating Officer in the case.

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.

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.

//9//

Defence Plea :

4. 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.

Trial Court findings :

5. 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

//10//

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.

Contentions of the parties :

6. 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

//11//

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

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.

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,

//12//

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.

Principle for appreciation of evidence in a case based on

circumstantial evidence :

7. 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:-

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

2. 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;

//13//

3. The circumstances should be of a conclusive nature and tendency;

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

5. 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.

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

Homicidal death of the deceased

8. In the case at hand, the homicidal death of the deceased

is not disputed, inasmuch as the doctor (P.W.1), who conducted post-

mortem 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:-

"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.

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;

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

//14//

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).

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

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 post-

mortem 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.

Thus, the finding of the learned trial Court that the

deceased met with a homicidal death is quite justified.

//15//

Seizure of weapons & wearing apparels:

9. 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.

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.

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

//16//

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:-

"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."

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

//17//

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.

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.

Conclusion:

10. 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.

//18//

The Criminal Appeal is allowed.

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.

The learned trial Court record with a copy of this

judgment be communicated to the concerned Court forthwith for

information and necessary action.

...................................

(S. K. Sahoo) Judge

.................................

(Chittaranjan Dash) Judge