Orissa High Court
Unknown vs State Of Odisha on 30 October, 2024
Author: Chittaranjan Dash
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 715 of 2023
(Arising out of the Judgment and Order of conviction on dated
27th of June, 2023 passed by Smt. Sasmita Parhi, 3rd Addl.
Sessions Judge, Bhubaneswar in Crl. Trial No. 268 of 2013, for
the offence under section 302/201 of the Indian Penal Code,
1860)
Ramamurty Gamango .... Appellant
Mr. A. P. Bose, Advocate
-versus-
State of Odisha .... Respondent
Mr. P. B. Tripathy,
Addl. Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 30.10.2024
Chittaranjan Dash, J.
1. The Appellant, namely Ramamurty Gamango, faced the trial
on the charges under Section 302/201 of the Indian Penal Code (in
short, hereinafter referred to as “IPC”) before the 3rd Additional
Sessions Judge, Bhubaneswar on the charge of murder of his wife,
Sashirekha Gamango and for disappearing the evidence to screen
himself as offender, wherein, the learned Court found him guilty
CRLA No. 715 of 2023 Page 1 of 40
therefor and convicted therein. Under section 302 IPC, the Appellant
has been sentenced to undergo imprisonment for life and to pay a
fine of ₹50,000/-, in default, to undergo further rigorous
imprisonment for one year and under section 201 IPC, he has been
sentenced to undergo rigorous imprisonment for a period of three
years and to pay fine of ₹10,000/-, in default, to undergo further
rigorous imprisonment for six months and with further direction that
both sentences shall run concurrently.
2. The prosecution case, in brief, is that the Appellant used to
reside with his wife, Sashirekha Gamango, in Qr. No. D.S. 18/1,
MLA colony, Bhubaneswar since 1990. On the morning of
29.08.1995, Sashirekha rose from bed late, causing her husband to
express his displeasure. It is alleged that at around 9 a.m., while the
Appellant was reading the newspaper in the bedroom, he heard his
wife scream. He rushed to the bathroom with Nila (the kitchen boy),
Kishore Behera, and Ramachandra Panigrahi. They found the
bathroom door locked from inside and smoke coming out of the
room. Water was poured through the window and Kishore and others
forcibly opened the door and found Sashirekha, the wife of the
Appellant committed suicide by burning herself.
3. On the written report of the Appellant, the IIC,
Kharavelnagar Police Station registered a U.D. Case No. 6/1995
relating to the death of the wife of the Appellant, Sashirekha
Gamango due to burn injuries. P.W.10, the then S.I. of Police,
Kharvelnagar Police Station namely Kishore Chandra Patsani
proceeded with the enquiry in the said U.D. Case. In course of the
enquiry, he examined the Informant, namely, Ramamurty Gamango,
the present Appellant, visited the spot and prepared the spot map
CRLA No. 715 of 2023 Page 2 of 40
(Ext.15). He sent intimation to the S.O., DFSL, Khurda and Chief
Medical Officer, Capital Hospital, Khurda to depute F.M.T.
Specialist to the spot. He made requisition to the S.D.M.,
Bhubaneswar to depute an Executive Magistrate to attend inquest
over the dead body of the deceased, Sashirekha. On his intimation,
Sri Bibhutibhusana Rath, the Scientific Officer and his team along
with the Assistant Photographer Durga Prasad Nayak visited the
spot, conducted inspection, took photographs of the deceased and the
spot. Dr. S. K. Mishra, the F.M.T. Specialist of Capital Hospital,
Bhubaneswar also visited the spot and inspected the dead body.
P.W.10 received the spot visit report of the Scientific Officer under
Ext.8. P.W.10, in course of the enquiry held inquest over the dead
body of the deceased under Ext.1 and dispatched the dead body to
the Capital Hospital, Bhubaneswar for post mortem. He issued injury
requisition for medical examination of the Appellant, Ramamurty
Gamango and the inmate namely Kishore Ch. Behera vide Exts. 6 &
7 respectively. During his spot visit, P.W.10 seized the incriminating
materials and prepared seizure list under Ext.2. He too received the
injury report in respect to the injured Ramamurty Gamango, the
Appellant and the inmate, Kishore Ch. Behera. P.W.10 also seized
the original command certificate, blood sample of the deceased,
letter of the Specialist, F.M.T., Capital Hospital, Bhubaneswar and
other incriminating articles under seizure list Ext.5. He also received
the P.M. report. Subsequently, P.W.10 made query to FMT,
Specialist, Capital Hospital, Bhubaneswar for his opinion as regards
the mode and time of death of the deceased and received the opinion
of the doctor. He too received one photocopy of the chemical
examination report from SFSL vide M.O. No.5259 dated 01.09.1995.
CRLA No. 715 of 2023 Page 3 of 40
P.W.10 from his enquiry coupled with the spot visit, the mark of
injury on the dead body so also injuries received by the Appellant
and the report sent by the SFSL found sufficient material that the
death of the deceased is one of murder and disappearance of
evidence. Accordingly, P.W.10 submitted a report to the IIC under
Ext.17 wherein the IIC, Kharavelnagar P.S. registered the P.S. Case
No.270 dated 01.09.1995 under Sections 302/201 of the Indian Penal
Code and on the direction of the IIC, P.W.10 himself proceeded with
the investigation. However, as per the direction of the S.P., Khurda,
Bhubaneswar, he handed over the charge of investigation to Rajnish
Ray, P.W.11, the then Addl. Superintendent of Police, on
01.09.1995.
4. Before formally assuming the charge of investigation,
P.W.11 had visited the spot of the alleged incident, where he
observed the deceased’s body completely burned, including the soles
of the feet, face, and hands. A bleeding injury was noted on the back
of the deceased’s head, while the bathroom, where the body was
found showed no signs of tampering or violence. The soot deposit
patterns on the bathroom door and objects nearby suggested no
disturbance, indicating a staged scene. Broken glass pieces beneath
the body and intact bangles on the deceased’s wrists, along with
undisturbed surroundings, pointed to foul play. During the
investigation, P.W.11 discovered injuries on the Appellant’s hand,
which the Appellant attributed to Erythema, a claim later dismissed
by medical examination. The deceased was pregnant, and rumors of
the Appellant suspecting her fidelity surfaced during enquiries.
Based on forensic reports, circumstantial evidence, and the absence
of defensive injuries or signs of a struggle, P.W.11 concluded that
CRLA No. 715 of 2023 Page 4 of 40
the death was homicidal, leading to the submission of the charge
sheet under Sections 302 and 201 IPC.
5. The case of the defence is one of complete denial and false
accusations. The further case of the defence is that his wife
committed suicide and he has been falsely entangled in the case due
to political rivalry.
6. To bring home the charge, the prosecution examined 12
witnesses in all. P.W.1, Narasingha Behera is an inmate of the
quarter and a post-occurrence witness; P.W.2, Nilakantha Mulia is
the cook of the Appellant; P.W.3, Lalit Ranjan Gomango, is the son
of the deceased and the Appellant; P.W.4, Dr. Nagaja Nandan Das, is
the medical officer who examined the Appellant; P.W.5, Mustafa
Khan, is the police constable who escorted the dead body of the
deceased to Capital Hospital for P.M. Examination; P.W.6, Ashok
Kumar Bisoi, is the S.I. of Police who assisted the I.O. during course
of investigation; P.W.7, Dr. Pradipta Das is the medical officer who
examined the Appellant and found injury on his right hand; P.W.8,
Bibhuti Bhushan Rath, is the scientific officer of DFSL, Khorda;
P.W.9, Dr. Santosh Kumar Mishra, is the medical officer who
conducted the P.M. Examination over the deceased’s dead body;
P.W.10, Kishore Chandra Patsani, is the enquiring officer as well as
the Informant; and finally, P.W.11, Rajnish Rai, is the then A.S.P.,
who conducted investigation after the case was registered and
submitted the chargesheet.
The defence on the other hand, examined one witness,
D.W.1, Kishore Chandra Behera, who was an inmate of the house.
CRLA No. 715 of 2023 Page 5 of 40
7. The learned trial Court having believed the evidence of the
prosecution witnesses found the prosecution to have proved its case
beyond all reasonable doubt and held the Appellant guilty and
convicted him awarding sentence as described above.
8. Mr. A. P. Bose, learned counsel for the Appellant, vigorously
argued that the prosecution has failed to establish its case beyond a
reasonable doubt, thereby warranting the acquittal of the Appellant.
Mr. Bose contended that there was no history of animosity or discord
between the Appellant and the deceased, and the prosecution has not
established a credible motive for the alleged murder. According to
Mr. Bose, given that the entire case is based on circumstantial
evidence, the absence of motive seriously undermines the
prosecution’s narrative and casts doubt on the alleged intent behind
the incident. He argued that without a clear motive, the prosecution’s
case lacks the foundational support required for conviction under
Section 302 IPC. Mr. Bose further argued that the FIR’s reference to
the absence of Carboxy-haemoglobin (COHb) in the deceased’s
blood was not supported by any documentary evidence from the
SFSL report, leaving the allegation unsubstantiated. He emphasized
that without concrete proof of COHb absence, the claim that the
deceased inhaled smoke during a homicidal fire becomes
questionable. Furthermore, Mr. Bose argued that when charges are
framed under Section 302 IPC, it is incumbent upon the prosecution
to conclusively prove that the death was homicidal. In this case, the
prosecution has not produced definitive evidence to establish that the
death was a result of intentional killing rather than an accidental or
self-inflicted injury.
CRLA No. 715 of 2023 Page 6 of 40
Referring to the testimony of P.W.9, who conducted the post-
mortem examination, Mr. Bose highlighted that the medical opinion
merely suggested that death was caused by asphyxia due to
inhalation of smoke. Importantly, the medical opinion was
inconclusive as to whether the death was homicidal or suicidal. Mr.
Bose elaborated that “subeoxia,” or very low oxygen concentration,
could occur in any fire, accidental or otherwise, thereby casting
doubt on the prosecution’s assertion of homicidal intent. He
contended that without a clear indication of homicidal action, the
prosecution has failed in its duty to eliminate all other possibilities,
as required in cases based on circumstantial evidence. Additionally,
Mr. Bose raised concerns over the quality of the investigation,
arguing that it was perfunctory at best. He highlighted contradictions
between the Scientific Officer’s report and the Investigating
Officer’s (P.W.11) observations during the spot visit. These
inconsistencies, he argued, create significant doubt regarding the
reliability of the prosecution’s evidence. He pointed out that the
presence of an ante-mortem injury on the back of the deceased’s
head could reasonably have resulted from an accidental strike within
a closed room during the course of a self-inflicted act, rather than as
an intentional assault by the Appellant. In light of these ambiguities,
Mr. Bose argued that the possibility of suicide cannot be ruled out
and should be considered a viable explanation.
Finally, Mr. Bose underscored that in criminal jurisprudence,
when two plausible interpretations are possible, the one favoring the
accused must be accepted. He argued that the defence’s theory of
suicide is as credible as the prosecution’s theory of homicide and,
therefore, should lead to the benefit of the doubt being given to the
CRLA No. 715 of 2023 Page 7 of 40
Appellant. On these grounds, Mr. Bose submitted that the evidence
does not support a conviction under Sections 302 and 201 IPC and
that the Appellant is entitled to an acquittal. Mr. Bose has relied on
the decisions in Darshan Singh vs. State of Punjab reported in
[2024] 1 S.C.R.; Bindeshwari Prasad Singh @ B.P. Singh vs.
State Of Bihar (Now Jharkhand) reported in AIR 2002 SC 2907;
Trimukh Maroti Kirkan vs. State of Maharashtra reported in
2006 (10) SCC 681; Basheera Begam vs. Mohammed Ibrahim
and Ors. reported in (2020) 11 SCC.
9. Mr. P. B. Tripathy, learned ASC for the State, argued that the
evidence overwhelmingly points toward a case of homicide rather
than suicide. He submits that the testimonies of key witnesses,
including those who described hostile interactions between the
Appellant and the deceased, reveal a strained relationship marked by
frequent quarrels and verbal abuse. This friction culminated on the
morning of the incident, where the Appellant’s behaviour towards
the deceased created an environment of fear and potential harm.
P.W.2, the cook, testified to abusive language used by the Appellant
towards his wife, indicating a level of animosity inconsistent with the
defence’s portrayal of a peaceful household. Mr. Tripathy further
submits that P.W.8, the forensic expert, noted the absence of forced
entry marks on the bathroom door, which contradicts the defence’s
claim that D.W.1 and the Appellant struggled to gain entry by force.
This discrepancy suggests that the bathroom door may not have been
locked or bolted, thereby undermining the theory of suicide and
raising suspicion of foul play.
He further emphasised on the findings of P.W.9, the medical
officer, who documented ante-mortem injuries i.e. a scalp hematoma
CRLA No. 715 of 2023 Page 8 of 40
on the deceased, which suggests she was incapacitated before the fire
was set. He asserts that the deceased was overpowered before being
burned, rather than self-immolating herself. The report also notes
soot and blood in the trachea, indicating that the deceased was
breathing when the fire started, thus assuring that the deceased may
have died due to burning but she was not conscious. Mr. Tripathy
further contends that the Appellant’s immediate recourse to calling
the police, rather than seeking medical assistance, signals a lack of
urgency or care for the deceased’s wellbeing, pointing instead to
premeditation. The decision not to call an ambulance highlights that
the Appellant may have already assumed or been aware of the
deceased’s fate. Their reported injuries of the Appellant and D.W.1,
were minor, raising doubt as to the extent of their claimed efforts to
break down the door or extinguish the fire. Such minor abrasions do
not align with the intense exertion that would be expected from a
prolonged rescue attempt, thereby casting further doubt on the
defence’s narrative. Overall, Mr. Tripathy points out that the
Appellant has failed to provide any plausible explanation under
Section 106 of the Evidence Act and further asserts that the totality
of evidence, including forensic findings, witness testimonies, and
inconsistencies in the defence’s account, establishes a strong chain of
circumstantial evidence pointing toward homicide, and therefore
urges this Court to uphold his conviction. The prosecution has relied
on the decisions in Vijay Kumar Arora vs. State Govt. of NCT of
Delhi reported in (2010) 45 OCR (SC) 634, and Satish Setty vs.
State of Karnataka reported in 2016 Cri.L.J. 3147.
10. Here is a peculiar case before us where the death appears to
be one out of burn injuries. However, the circumstances appearing in
CRLA No. 715 of 2023 Page 9 of 40
the scene of occurrence and the background facts indicate that the
deceased before being affected by the burn injury, had no control
over herself and almost helpless, having suffered injuries to the vital
part of the body. She died from the burn injuries set out on her while
in moribund condition. As a result, the circumstances forthcoming in
the case neither speaks of a complete case of suicidal or homicidal
death. However, various facts emerge including the conduct of the
Appellant and the testimony of the prosecution witnesses so also the
only defence witness leads to the conclusion that the death is one of
homicidal nature.
At the outset it is felt expedient to mention that from the
sequence of events as apparently disclosed in the case record every
endeavor has been made in the case to suppress material evidence
besides the inordinate delay caused in bringing the case to trial so
much so that the incident that took place in the year 1995 wherein
the Appellant who happened to be an Ex-MLA caused his
appearance only after 19 years upon his release on bail i.e within
three months of the incident. Surprisingly, not a single witness has
been cited from the side of the family of the deceased though her
parents, brothers and sister were present at the relevant time. Leaving
the official witnesses, all others have turned hostile as they were
directly or indirectly interested in favour of the Appellant. Even the
Doctor and Scientific team have preferred not to examine the case
with utmost clarity. Had the investigation not been in the hand of
P.W.11 (An IPS Officer), the matter would have been closed with the
U.D. enquiry only. With this factual background, we venture to
evaluate the evidence to answer whether the trial Court is justified in
holding the Appellant guilty.
CRLA No. 715 of 2023 Page 10 of 40
11. Having regard to the arguments advanced by the learned
counsel for the respective parties, while it is incumbent for this Court
to examine first the nature of death of the deceased in view of the
fact that the Appellant stood charged under Section 302 Indian Penal
Code, the medical evidence in the case being inconclusive with
regard to the nature of death as to whether suicidal or homicidal, a
greater responsibility is bestowed upon this Court to examine the
evidence and give a conclusive finding from the circumstances as to
the nature of death. In this regard although the evidence of P.W.8,
the Scientific Officer so also P.W.9, the Medical Officer carries
importance, other circumstances appearing in the case coupled with
the evidence of the witnesses being equally important are required to
be taken into account to deduce the conclusion. Accordingly, we find
it necessary to deal with the evidence in totality.
12. P.W.1, a resident of the MLA colony quarters where the
incident occurred, testified that he knew the Appellant well and had
been residing in the outhouse of the same quarters where the
Appellant and his family were residing. According to him, on the
morning of the incident, which took place on Ganesh Chaturthi
sometime in August 1995, he invited the Appellant to accompany
him to the temple. However, the Appellant chose to stay behind,
allowing his son to go instead. They returned from the temple around
11 a.m. and found some police personnel and a crowd gathered at the
Appellant’s quarters. P.W.1 then learned that the Appellant’s wife
had allegedly set herself ablaze in the bathroom. He witnessed the
burnt body being recovered by the police, who, along with an
Executive Magistrate, conducted an inquest in his presence. The
police documented the incident in an inquest report, which P.W.1
CRLA No. 715 of 2023 Page 11 of 40
signed as Ext.1. Furthermore, they seized several items from the
scene, including a plastic jerrican containing kerosene, broken
bangles, a gold chain, a matchbox, an iron bucket, a soap case, and
broken glass pieces, and prepared a seizure list marked as Ext. 2.
During cross-examination, P.W.1 stated that upon returning,
he heard that the deceased had allegedly committed suicide by
bolting the bathroom door from the inside. He noted that local
residents had broken the bathroom’s ventilator glass, when they
failed to open the door, in an attempt to enter after noticing smoke
and a kerosene smell coming from the bathroom. He affirmed that he
had known the Appellant and the deceased for thirty years and
believed that their relationship had been cordial. P.W.1 reiterated his
belief that the deceased had committed suicide by pouring kerosene,
having written this endorsement on the inquest report (Ext.1),
indicating no other cause of death.
13. P.W.2, the cook employed by the Appellant, testified that on
the morning of Ganesh Chaturthi, he and the Appellant noticed
smoke emanating from the bathroom. They then broke open the door
to find that the Appellant’s wife had allegedly set herself on fire by
pouring kerosene. P.W.2 stated that he had not observed any quarrel
between the couple immediately prior to the incident.
In cross-examination by the prosecution, P.W.2, however,
acknowledged previous statements made by him to the police
indicating that there had been an argument between the Appellant
and his wife the night before and again on the morning of the
incident. He detailed that the Appellant had verbally abused his wife,
allegedly due to her getting up late on the festive day, and even used
obscene language towards her while P.W.2 was retrieving vegetables
CRLA No. 715 of 2023 Page 12 of 40
from the refrigerator. Following the argument, he observed the
Appellant raising a loud cry, after which both he and one Rath Babu
tried to extinguish the fire by throwing water through the bathroom’s
ventilator. Meanwhile, the Appellant and Kishore (D.W.1) managed
to break down the bathroom door, where they found the deceased’s
body badly burned and a plastic jerrican containing some kerosene.
P.W.2 revealed that he had purchased the kerosene and kept it in a
jar under the bed, which he admitted was an unusual storage choice.
During cross-examination by the defence, P.W.2 mentioned
that the Appellant and the deceased generally had a good
relationship, with the deceased often participating in household tasks
like cooking and daily worship. However, he admitted that while the
deceased had a generally calm temperament, she would occasionally
react strongly to mistakes. He confirmed that he stated in his earlier
statement that regular quarrels occurred between the Appellant and
the deceased, and on the day of the incident, the Appellant had
berated his wife for waking up late.
14. P.W.3, the son of the deceased and the Appellant, testified
that on the day of the incident, which was Ganesh Chaturthi in 1995,
he went to the temple with P.W.1 around 8:30 a.m. Upon returning at
approximately 11:00 a.m., he found that his mother had allegedly
committed suicide by setting herself on fire in the bathroom, using
kerosene and locking the door from the inside. Inside the bathroom,
he observed a plastic jerrican with some kerosene and a matchbox.
P.W.3 noted that he does not remember seeing his mother’s burned
body, attributing this to his young age at the time of the incident.
In cross-examination by the prosecution, P.W.3 confirmed
that his mother, the deceased, was the Appellant’s second wife, as his
CRLA No. 715 of 2023 Page 13 of 40
father’s first wife had passed away. He also stated that he had not
observed any serious quarrel between his parents and denied that his
father had ever verbally abused his mother over her occasional late
mornings. He mentioned that he still visits his father, who resides in
their village.
During the defence’s cross-examination, P.W.3 explained
that the Government quarters were allocated to his father due to his
position as an MLA, and that his parents generally had a good
relationship. He acknowledged that his father married the deceased
after his first wife’s death. However, this account contrasts with his
statement under Section 161 of the Criminal Procedure Code, where
he previously informed the police that he had witnessed quarrels
between his parents before he left for the temple. This inconsistency
suggests a possible lack of clarity or memory about the events from
his childhood.
15. P.W.7, a Medical Officer at the Casualty Capital Hospital in
Bhubaneswar, testified that on 29.08.1995, he examined Mr. Ram
Murty Gamango, the Appellant, upon police requisition. During the
examination, he made following observation vide Ext. 6/1:
“1. Abrasion on the dorsal aspect of right middle
finger in the proximal 1/3″ of size 1/4″ inch × 1/6”
inch.
2. Abrasion on the dorsal aspect of right ring finger in
proximal 1/3″ of size 1/6″ inch × 1/6″ inch.”
P.W.7 observed that both the injuries were simple in nature
and could have been caused by hard and blunt object, age of injuries
within 48 hours, from the time of his examination which is 4:45 P.M.
The identification mark is one dimple scar mark below right
zygomatic area.
CRLA No. 715 of 2023 Page 14 of 40
Later that day, at 5:00 p.m., P.W.7 examined Kishore
Chandra Behera (D.W.1) and found the following observations vide
Ext. 7/1:
“Partial burning of hairs just above the forehead and
on the left parietal region, which were simple in
nature and could have been caused by fire, age of
injuries within 12 hours from the time of his
examination. The identification mark is one black
mole above the inner end of the left eyebrow on the
forehead”
In cross-examination by the defence, P.W.7 stated that the abrasions
mentioned in Ext.6/1 could have occurred if the Appellant had come
in contact with a wall, and the partial burning on D.W.1’s hair noted
in Ext.7/1, could have been caused by contact with fire while
attempting to extinguish a fire.
16. P.W.8, the Scientific Officer from the District Forensic
Science Laboratory (D.F.S.L.), Khurda, testified that on 29.08.1995,
he, along with his staff, arrived at the crime scene, in response to a
requisition from the I.O. Upon arrival, he observed that the body of
the deceased was completely burnt, with most part of the upper skin
was completely burnt. Her garments were mostly burnt, and a
noticeable swelling was present on the right side of her forehead.
Additionally, P.W.8 noted a white jerrycan, partially burnt
except for its lower part, which contained a small quantity of
kerosene and was found near a washing machine. An iron bucket and
a plastic mug were located close to the legs of the deceased, and
broken bangles were scattered across the bathroom floor. He further
made the following observation:
1. No mark of violence was detected on the door frame,
door bolt and door of the bathroom.
CRLA No. 715 of 2023 Page 15 of 40
2. No marks of tampering was noticed on the outer part
of the door bolt or inside the door bolt.
3. No marks of violence found on the four walls of the
bathroom.
4. The articles of the bathroom were found intact and
undisturbed, though iron bucket and plastic mug were
very close to the left region of the leg.
5. Broken pieces of glass of ventilator of the bathroom
were detected beneath of the dead body and broken
glass bangles were found lying scattered on the floor of
the bathroom.
6. No injury was detected on the dorsal surface of the
deceased i.e. the back side of the deceased and on the
wrist area.
7. There was uniform smoke deposit all over the wall
of the bathroom and on the bolt of the door of the
bathroom. The bolt was found in open condition.
8. There was uniform smoke deposit in the inner
portion of the door frame.
9. The colour paint of the bath room door (outside) was
swollen and bulged, but inside part of that door was less
effective to heat than outside.
17. P.W.9, the Medical Officer in F.M.T. at Capital Hospital,
Bhubaneswar conducted the post-mortem examination of the
deceased along with Dr. Ashok Ku. Pattnaik. He found the
following:
EXTERNAL INJURIES –
a) The scalp hair was burnt (partly burnt and
singed at places, longest at back of head).
b) Burn injuries covering all over body surface
100% with epidermal and demo-epidermal, burns
mostly affecting deeper tissues, skin surface absent
with tags of dark skin on the body
c) Charred skin flaps present on the hands
d) Lacerated wound 1/4th x l/4th x scalp deep on
the back of head 2″ right of midline.
CRLA No. 715 of 2023 Page 16 of 40
ON DISSECTION –
a) Sooty & blood lined mucous present on trachea
b) Scalp hematoma 1" x 1" dia on back of head,
right to midline, corresponding to External Injury No.2
c) Uterus enlarged containing foetus-17 c.m. long;
200 g.m., Sex- Male with intact amniotic sac.
Opinion: (i) The injuries were antemortem in nature
(ii) The cause of death was due to 100% burn of body
surface (iii) Time since death – within 4 to 12 hours
from the time of post-mortem examination i.e. 4.15
P.M. (iv) The deceased was 14-16 weeks pregnant at
the time of death.
THE I.O. MADE FOLLOWING QUERIES ON 01.09.1995 –
a) To ascertain the mode of death of the deceased
either asphyxia or shock resulting put of burn.
b) To ascertain the approximate time of death with
reasonable + and - hour.
Opinion: The mode of death was asphyxia and time
since death was 4 to 12 hours as mentioned in the
report vide Ext. 10/1
THE I.O. MADE FURTHER QUERY ON 04.09.1995 AS
FOLLOWS -
a) To ascertain if the asphyxia was due to
throttling/ strangulation or suffocation arising out of
the smoke produced by burning
b) To ascertain if the cause of death was suicidal/
homicidal or accidental.
Opinion: The mode of death was asphyxia (shock and
subeoxia) was due to suffocation resulting from
inhalation of smoke from combustion. The manner of
death was not accidental; however, the findings were
not conclusive to opine whether the death was
homicidal or suicidal. The query of the I.O. is marked
Ext. 11. Ext. 12 is the reply.
18. The sole defence witness examined on behalf of the
Appellant namely Kishore Chandra Behera cited as D.W.1, is an
inmate of the house. He deposed on oath that the incident occurring
CRLA No. 715 of 2023 Page 17 of 40
around 7:30 a.m. on Ganesh Chaturthi. He explained that on that
morning, while he was heading to the bathroom, the wife of the
Appellant, Mrs. Gamango, restrained him, indicating she wanted to
use the bathroom herself. She entered and bolted the door from
inside. Shortly after, smoke started emanating from the bathroom,
and he heard her shouting. D.W.1 attempted to open the bathroom
door but was unsuccessful, so he called for the Appellant, who was
in the lobby talking to two other individuals. Together, D.W.1 and
the Appellant forced open the door after about 10 minutes, breaking
the bolt in the process. Upon entering, they saw the deceased lying
on the bathroom floor, her clothing aflame. D.W.1 tried to extinguish
the fire with a blanket, and the Appellant sustained hand injuries
while assisting. D.W.1’s own hair and eyebrows were singed as he
tried to put out the fire.
After seeing that the wife of the Appellant was dead, the
Appellant went to the police station. D.W.1 remained at the scene as
neighbors and approximately 30-40 people gathered. Although many
people arrived, none of the MLA’s nearby family members came
forward. D.W.1 stated that he then poured water on the body, and
when the police arrived, they conducted an investigation, later
sending both him and the Appellant for medical examination. D.W.1
also sustained an injury to his left hand. He was not present at the
time of the inquest but signed the injury report as Ext. A.
19. For proper appreciation of the evidence, it is imperative to
examine the evidence in the clear and chronological order taking into
account the testimonies presented by both the prosecution and the
defence which would allow the detailed understanding of the
CRLA No. 715 of 2023 Page 18 of 40
circumstantial evidence surrounding the tragic death of the deceased
and its connection with the Appellant.
20. Starting with P.W.3, who is none but the son of the deceased
and the Appellant examined under oath during the trial in 2013
claimed that he did not recall if he had seen his mother’s burnt body
at the time of her death in 1995, as he was a small child then. This
statement seems to reflect the natural fading of memory by efflux of
time as he was only 13 years’ old at the time of the incident.
However, it is crucial to juxtapose this statement with the one he
made under Section 161 of the CrPC immediately after the incident
in 1995. In his earlier statement recorded under section 161 CrPC
statement, P.W.3 specifically recounted that his father, the Appellant,
was shouting at his mother on the morning of Ganesh Chaturthi for
waking up late. Additionally, he mentioned that his mother was
reluctant to send him to the temple, but his father insisted upon it.
P.W.3 also stated that the Appellant and his mother frequently
quarrelled, particularly over her habit of waking up late. This
previous statement, given in the immediate aftermath of the incident,
though found significant admittedly does not carry an evidentiary
value. However, it indicates an environment of regular conflict
between the Appellant and the deceased, underpinned by frustration,
anger, and domestic strife. Such an atmosphere sets the stage for
analysing whether the Appellant’s conduct played a more direct role
in the death of the deceased. For reasons obvious, this Court cannot
take this into account for the evaluation of the case. However, it can
be fairly regarded to visualise a scenario in absence of any such
evidence forthcoming from either side to contribute towards the
circumstances that lead to the occurrence.
CRLA No. 715 of 2023 Page 19 of 40
Furthermore, the testimony of P.W.2, the cook, provides
additional corroboration regarding the strained relationship between
the Appellant and the deceased. This witness too in his earlier
statement recorder under 161 CrPC had explicitly stated that the
Appellant was abusing the deceased in obscene language on the
morning of the incident, as well as on the preceding night. He also
noted that the Appellant regularly abused his wife. While P.W.2
initially testified on oath in Court that he had not seen any quarrel
immediately prior to the incident, he later conceded in cross-
examination that he had stated before the police about the quarrels
between the Appellant and the deceased, particularly on the day of
the occurrence. This shift in his testimony suggests some hesitation
in fully disclosing the extent of the domestic conflict during his
examination in Court. However, his acceptance under cross-
examination reinforces the narrative of regular discord and emotional
abuse between the Appellant and the deceased, lending credibility to
the prosecution’s version of events.
When both P.W.3 and P.W.2’s statements are considered
together, they paint a picture of a volatile marital relationship. P.W.2
has been consistent with his statement as to the troubled relationship
of the deceased and the Appellant citing repeated quarrelling,
particularly over seemingly trivial matters like waking up late.
21. Coming to the incident itself, according to P.W.2’s
testimony, after hearing the Appellant shout “Podigala, Podigala”
(meaning “burning”), he and others, including one Ratha Babu and
D.W.1, followed the Appellant to the bathroom whereas D.W.1’s
version, on the other hand, describes that the smoke coming from the
skylight was followed by the deceased’s cry of “marigali, marigali”
CRLA No. 715 of 2023 Page 20 of 40
(meaning “I am dying”). These accounts emphasise a sudden and
frantic situation where the Appellant, along with others, attempted to
rescue the deceased from a burning scenario in the bathroom.
However, the defence case argues that the deceased committed
suicide, and D.W.1’s narrative attempts to explain the efforts made
to forcefully enter the bathroom.
The fact that the P.W.2, who only saw smoke emanating from
the bathroom did not hear any scream, contradicts the version of
D.W.1 account, where he claims to have first seen smoke and then
heard the deceased scream “marigali, marigali.” This cry of
desperation holds significant weight in evaluating the circumstances
surrounding her death. If the deceased had truly intended to commit
suicide, as claimed by the defence, it is unlikely that she would have
screamed for help while the fire consumed her. The cry “marigali,
marigali” indicates a clear effort, either consciously or
unconsciously, to alert others to her plight and to escape the pain of
burning. Further, if the deceased had intended to commit suicide by
burning, her screams would have likely been cries of pain rather than
cries for help. The fact that her words indicate an appeal for
assistance suggests that she was not entirely resigned to death but
instead was seeking to escape the situation. This distinction between
a cry of pain and a cry for help is crucial. A person committed to the
act of suicide would not typically call out for rescue in such a
manner. Instead, the scream “marigali, marigali” reveals that the
deceased was in distress and wanted to be saved, casting doubt on
the theory of a deliberate, premeditated self-immolation.
Furthermore, D.W.1’s testimony that the deceased restrained
him before entering the bathroom, ostensibly to commit suicide, is
CRLA No. 715 of 2023 Page 21 of 40
incongruent with typical behaviours observed in suicidal actions,
which are generally acts of isolation. In cases of suicide, individuals
often seek to ensure solitude, minimising the chance of intervention
or rescue. The act of instructing someone to wait before using the
bathroom if the intent was truly self-immolation raises questions, as
it inherently increases the risk of being discovered and saved.
Additionally, the timing between the deceased’s alleged instructions
to D.W.1 and the immediate act of setting herself on fire introduces
an unusual haste and lack of privacy, which are atypical in suicide
cases where the individual often seeks controlled isolation.
22. The key issue here revolves around the plausibility of the
situation where entry was difficult. There are multiple
inconsistencies between this testimony and the forensic evidence at
the scene, which fundamentally disputes the credibility of the
defence’s version of events.
23. First, it is essential to note that as per the evidence of P.W.8,
the Scientific Officer, no visible signs of tampering or violence were
found on the door frame, the bolt, or the door itself. If the door was
indeed pushed with significant force, for 10-15minutes, naturally,
such a forceful and prolonged effort to break open the door would
have left some physical evidence, such as damage to the door frame,
the bolt, or the door itself.
Moreover, both P.W.2 and D.W.1 testified that they assisted
the Appellant in breaking open the door; P.W.2 claimed he and the
Appellant forced open the door, while D.W.1 similarly stated that he
and the Appellant pushed the door together to rescue the deceased.
However, the absence of any physical marks or indications of forced
CRLA No. 715 of 2023 Page 22 of 40
entry contradicts their statements and does not align with P.W.8’s
findings.
Throughout the trial, no suggestion was made to P.W.8, that
the door to the bathroom had been forcibly broken open, either by
the Appellant with P.W.2, or by the Appellant with D.W.1. P.W.8’s
observations clearly indicate that there was no visible mark of
violence, no sign of damage to the door, and no evidence of a broken
tar bolt; findings that remain unchallenged in the cross-examination.
At this juncture, an explanation from the side of the
Appellant having special means of knowledge was inevitable, the
absence whereof gives a cogent link to the scenario where the only
plausible explanation is that the door was never closed or bolted
from the inside, contradicting the defence’s portrayal of a locked and
inaccessible bathroom and raising serious questions about the true
nature of the events that led to the deceased’s death.
24. Turning to the defence, according to D.W.1, on the morning
of the incident, the deceased entered the bathroom, bolted the door
from inside, and after some time, smoke began to emerge from the
skylight. He then heard the deceased scream “marigali, marigali” and
rushed to the bathroom, but despite pushing the door, it would not
open. He then went to call the Appellant, who was conversing with
two other individuals in the lobby. The Appellant and D.W.1
together tried to break open the door, and after several minutes of
pushing, they managed to break the upper bolt of the door and enter
the bathroom. Inside, they found the deceased engulfed in flames,
lying on the floor. D.W.1 claims that they extinguished the fire, and
the Appellant then left to inform the police.
CRLA No. 715 of 2023 Page 23 of 40
25. Secondly, D.W.1 stated that after the door was opened, he
and the Appellant found the deceased already engulfed in flames.
However, the fact that the body continued burning for about 10-15
minutes raises questions about the timeline and their response. It is
highly unlikely that a body could sustain 100% burns from just 10-15
minutes of burning, especially in a confined space like a bathroom.
While the intensity of the fire, the materials involved (e.g., clothing,
accelerants), and the environment could influence the severity of the
burns, achieving 100% burns on a human body in such a short time
typically requires sustained, high-temperature exposure.
26. Furthermore, P.W.8’s observations revealed that there was a
uniform smoke deposit across the walls of the bathroom and on the
bolt of the bathroom door, which was found in an open condition.
Despite the claim of the defence that the supposed-suicidal burning
occurred inside the bathroom, the articles in the bathroom were intact
and undisturbed. Additionally, broken pieces of glass from the
ventilator were detected beneath the dead body, and scattered glass
bangles were observed on the bathroom floor. These details provide
important clues about the state of the scene, suggesting that while
there was a fire or smoke event, no signs of disturbance or struggle
were immediately visible, other than the broken glass. This evidence
could be significant in determining the cause of death and the
sequence of events leading up to it.
P.W.8 also noted that the paint on the outside of the bathroom
door was swollen and bulged, indicating exposure to significant heat,
while the inside of the door, which is supposed to be the spot of
occurrence, was less affected by the heat. If the fire had originated or
burned intensely inside the bathroom, one would expect the inner
CRLA No. 715 of 2023 Page 24 of 40
side of the door to show more significant heat damage, with uniform
signs of burning across the bathroom’s interior. However, the fact
that the outside of the door was more damaged by heat suggests that
the fire or a major heat source was either stronger or positioned
outside the bathroom.
Analysing this in the context of the defence’s argument, it
raises doubt about the claim that the burning took place inside the
bathroom, which is a central point for the defence to support a theory
of suicide. If the deceased had set herself on fire or the fire began
from within, it would be logical for the inner side of the door to
exhibit greater signs of heat exposure than the outside. Instead, the
reverse seems true. This discrepancy weakens the argument of
suicide, as it implies that the fire or heat source might have been
external to the bathroom, raising the possibility of foul play or
external involvement.
Moreover, the presence of undisturbed bathroom items,
broken glass beneath the body, and scattered bangles further
complicates the narrative of suicide. Together, these elements create
an inconsistent picture that challenges the defence’s claim, pointing
instead to the likelihood of external factors contributing to the death.
Thus, this analysis could potentially rule out suicide and strengthen
the case for homicidal nature of death.
27. Moving on to the medical evidence provided by P.W.9, the
ante-mortem injuries observed on the deceased offer significant
insight into the nature of the death. The medical officer noted a
lacerated wound on the back of the deceased’s head, which was later
confirmed to correspond with a scalp hematoma during internal
examination. This injury, which occurred prior to death, is indicative
CRLA No. 715 of 2023 Page 25 of 40
of blunt force trauma, suggesting that the deceased was struck or
otherwise injured before she was exposed to the fire. This is crucial
evidence pointing towards a homicide, as it indicates that the
deceased was likely incapacitated or killed by this head injury before
her body was set on fire. It is improbable that this kind of injury
would be self-inflicted in the course of a suicide, especially since
there is no evidence to suggest the deceased fell or accidentally hit
her head in a manner that could have caused this wound.
28. According to Modi’s Medical Jurisprudence reported in
Modi, J. P. (2021), A textbook of medical jurisprudence and
toxicology (27th ed.), Chapter IX: Death from Burns, Scalds,
Lightning, And Electricity – Burns and Scalds (p. 200), it is
mentioned –
“Causes of Death.–1. Shock.–Severe pain from
extensive burns causes shock to the nervous system,
and produces a feeble pulse, pale and cold skin and
collapse, resulting in death instantaneously or within
twenty-four to forty-eight hours. In children it may
lead to stupor and insensibility deepening into coma
and death within forty-eight hours. In order to avoid
the suggestion that coma was due to the drug it is
advisable not to administer opium in any form for the
alleviation of pain.
2. Suffocation.–Persons removed from the houses
destroyed by fire are often found dead from suffocation
due to the inhalation of smoke, carbon-dioxide and
carbon-monoxide–the products of combustion. In
such a case the burns found on the body are usually
post-mortem…
Between 1 a.m. and 3 a.m. on the 6th January, 1922,
some dacoits broke into the house of one Kusher Lodh,
aged 50 years, and, finding him and his son, 20 years
old, sleeping in a room, chained it from outside. On
leaving the house they set fire to rubbish lying at the
door with the result that the father and the son died in theCRLA No. 715 of 2023 Page 26 of 40
room. The post-mortem examination of both the bodies
afforded clear evidence of death from suffocation. The
larynx and trachea in both were congested with a deposit
of soot along the interior. The lungs were congested and
exuded frothy blood on section. The brain vessels were
found engorged with blood. There was general venous
engorgement. Externally the bodies showed a few small
superficial burns on the face, thighs and legs with
singeing of the hair of the head.
3…
4…
5…
6…
7…
Fatal Period.–As already mentioned, death may occur
within twenty-four
to forty-eight hours, but usually the first week is the
most fatal. In suppurative cases death may occur after
five or six weeks or even longer.”
29. According to P.W.9 the cause of death was asphyxia due to
suffocation from inhalation of smoke, even in the absence of
carboxyhemoglobin in the blood. While the absence of
carboxyhemoglobin (which typically indicates that a person was
alive when they inhaled smoke) could raise doubts, the presence of
sooty and blood-tinged mucus in the trachea suggests that the
deceased was indeed breathing in smoke at the time of the fire. This
aligns with the principles outlined in Modi’s Medical Jurisprudence,
which emphasises that suffocation can be a primary cause of death in
fire-related incidents. D.W.1’s claim that the deceased’s body was
burning for 10 to 15 minutes presents a crucial inconsistency.
According to Modi’s text, death can occur within 24 to 48 hours
post-burn, especially when considering factors and the extent of
injuries cause by the fire. If D.W.1’s assertion is accurate, the
prolonged burning time indicates that the victim was likely alive
CRLA No. 715 of 2023 Page 27 of 40
during this period, which raises significant concerns about the
circumstances of her death. Given that asphyxia is cited as the cause
of death, it suggests that the deceased may have been incapacitated
or unable to escape the flames, potentially indicating foul play. The
presence of asphyxia in conjunction with D.W.1’s account of
extended burning time points to a scenario where the deceased was
not just a victim of fire but may have been deliberately placed in a
situation that led to her suffering both from smoke inhalation and
severe burns. P.W.9 was unequivocal in stating that the death was
not accidental, further narrowing down the possible manner of death
to either suicide or homicide. However, the surrounding
circumstances make it highly unlikely that the death was the result of
suicide.
The report of P.W.9 to the effect that the cause of death was
asphyxia due to suffocation from inhalation of smoke seems stage
managed for the simple reason that if the findings of the report was
correct, the doctor could safely have opined with a definite report as
to the cause of death to be suicidal but it did not happen so as he
found a hurdle before him that is the CE report. In the CE report, it
was opined that there was absence of Carboxy Hemoglobin
suggesting that the death could not have been for suffocation. This
discrepancy is what is observed by this Court earlier as suppression
of material. This is more so when original CE report was not
produced before the trial Court while a true attested copy was
produced which was not accepted by the learned trial Court as
evidence. We, however, do not find the opinion of the trial Court
correct. This is because the case record reveal that a photocopy of the
CE report has been annexed to the FIR by the I.O who relied upon it
CRLA No. 715 of 2023 Page 28 of 40
as one of the key documents holding prima facie the cause of death
of the deceased as homicidal. P.W.8 adduced evidence on oath to the
effect that there was absence of Carboxy Hemoglobin ruling out
possibility of inhalation of smoke as per medical jurisprudence. As
we have already observed there was every possible effort made to
weaken the evidence and it is for this reason in order to get rid of the
consequence of the opinion in the CE report, the only way out was to
withdraw the said documents from being proved to accommodate the
Appellant. Consequently, therefore, in the opinion of this Court
having regard to the fact that the existence of the original cannot be
denied as the attested true copy has been produced from proper
custody and its authenticity has not been challenged by the defence
in any manner, the same can very well be read in evidence accepting
the document (the CE Report marked “Z”) as proved by secondary
evidence. Otherwise, this would amount to travesty of justice and the
investigating agency shall be allowed to “rule the roost.” In sequel to
the above, once the CE report is read in the manner it is opined, it is
clear to suggest that the victim had already died by the time she was
put to fire.
30. Finally, the testimony of P.W.9 further corroborates the
theory of homicide by highlighting the pregnancy of the deceased.
The deceased was approximately 14-16 weeks pregnant at the time
of her death significantly weakens the possibility of suicide. The
maternal instinct to protect an unborn child is a powerful force, and it
is highly unlikely that a woman in her second trimester, who was
carrying a fetus would deliberately seek to harm herself or her
unborn baby without a compelling cause. The absence of any
evidence suggesting emotional distress, a suicidal mindset, or any
CRLA No. 715 of 2023 Page 29 of 40
circumstantial triggers that could lead a pregnant woman to take such
a drastic step further diminishes the likelihood of suicide. The
pregnancy becomes a critical factor in the analysis, suggesting that
the deceased was the victim of homicidal violence, with her
pregnancy possibly playing a role in escalating tensions within her
marriage, rather than someone who would willingly end her own life
and that of her unborn child. The medical officer’s findings, along
with circumstantial evidence suggesting a strained relationship
between the Appellant and his wife, may suggest a motive for the
crime.
31. While neither P.W.8 nor P.W.9 provided a definitive medical
conclusion that the death was homicidal, the combination of ante-
mortem injuries, the undisturbed scene, and the pattern of smoke
deposition, as well as the absence of evidence supporting suicide or
accident as argued by the defence strongly indicate that homicide is
the most likely explanation. The head injury, coupled with the
asphyxia caused by smoke inhalation, points to a scenario where the
deceased was incapacitated before the fire was started, suggesting an
intentional act to both kill and conceal the evidence.
32. The Appellant, being the husband of the deceased and
present at the house at the time of the occurrence, failed to provide
any reasonable explanation for the defence of suicide. Under Section
106 of the Indian Evidence Act, the burden of proving facts that are
peculiarly within the knowledge of a person rests on that person. The
prosecution has established that the Appellant was seen quarreling
with the deceased before the occurrence and was present at the scene
during the critical time. These circumstances placed the Appellant in
CRLA No. 715 of 2023 Page 30 of 40
a position where he had exclusive knowledge of the events leading to
the death of the deceased.
Since the Appellant was the only individual with close access
to the deceased at the time of her death, it was incumbent upon him
to provide a plausible explanation for her death, especially when
claiming that it was a case of suicide. The burden of proof, while
primarily on the prosecution to prove guilt beyond reasonable doubt,
shifts in part to the Appellant under Section 106 when it comes to
facts exclusively within his knowledge. He failed to explain the
cause of the fire and the circumstances under which his wife was
found engulfed in flames. This failure to discharge the burden raises
an adverse inference against him.
33. Moreover, D.W.1’s testimony contains notable
inconsistencies, regarding his claim that he attempted to extinguish
the fire by placing a blanket over the deceased’s body. He stated that
while trying to smother the flames with the blanket, he sustained
minor burns to his eyebrow and hair and even the Appellant
sustained injuries on his hand. However, no blanket was found or
seized from the bathroom during the investigation, as confirmed by
the seizure list. It is expected that a blanket used to put out a fire to
be present at the scene or to exhibit burn marks or soot if it had
indeed been in contact with the flames.
The analysis of injuries suffered by the Appellant and D.W.1,
as documented by P.W.7, reveals inconsistencies that weaken the
defence’s narrative of a desperate rescue attempt. According to
P.W.7, the Appellant sustained only minor abrasions on the dorsal
aspect of his right middle and ring fingers, injuries that could be
caused by contact with a hard surface but are not consistent with the
CRLA No. 715 of 2023 Page 31 of 40
vigorous force that would be required to break down a door or
manage a burning body. Furthermore, D.W.1, who claims to have
sustained partial burns while attempting to extinguish the flames,
exhibited burns only on the hair above the forehead and the left
parietal region. This minor burn pattern does not align with the
defence’s portrayal of a sustained attempt to rescue a person on fire,
as one would expect more extensive burns or injuries to the hands,
arms, or clothing.
Furthermore, the Appellant’s assertion of suffering from
Erythema, a skin condition that could potentially explain injuries
from scratching or irritation, was not corroborated by any medical
findings. P.W.7’s examination report found no signs of Erythema or
any other dermatological condition that could justify the abrasions.
The evidence presented by P.W.7 does not support a scenario where
the Appellant and D.W.1 undertook a strenuous, genuine rescue
attempt.
These inconsistencies, along with the absence of physical
evidence such as a blanket, undermines the defence’s claim of a
genuine rescue effort. Collectively, this supports the prosecution’s
theory that the injuries and the rescue narrative were minimal,
contrived, and insufficient to support a plausible defence, reinforcing
the prosecution’s case of intentional conduct rather than a
spontaneous, earnest attempt to save the deceased.
34. The prosecution has provided sufficient circumstantial
evidence such as the Appellant’s presence, prior quarreling, and lack
of effort to explain the situation that casts serious doubt on the
defence of suicide. Without a credible explanation from the
CRLA No. 715 of 2023 Page 32 of 40
Appellant, especially considering the circumstantial evidence
strongly implicating him, the prosecution’s burden to prove guilt
beyond a reasonable doubt is sufficiently met.
35. Furthermore, the Appellant’s decision to contact the police
rather than immediately seek medical assistance, such as calling an
ambulance, raises significant doubts about his conduct during the
critical moments following the incident. In a situation where an
individual is engulfed in flames, a natural and reasonable reaction
would be to prioritise obtaining medical help, as every second counts
in the case of burn injuries. The fact that the Appellant did not first
attempt to arrange for urgent medical care, but instead contacted the
police, reflects a lack of concern for the potential survival of his wife
and raises questions about his state of mind and intentions.
The timeline of the burning is crucial to understanding the
proximity of the events. D.W.1’s testimony suggested that the
deceased was engulfed in flames for approximately 10-15 minutes,
which is inconsistent with the typical response expected in such an
emergency. The Appellant, who was present in the house, could not
have reasonably concluded that his wife had already died without
any attempt at medical intervention or verifying her condition with
professional assistance. Burns of 100%, as recorded, often result in
death, but the Appellant’s immediate assumption that his wife was
beyond help without even attempting to summon an ambulance
seems premature and raises suspicions about his foreknowledge of
the situation.
This conduct further diminishes the credibility of the
Appellant’s defence. His actions reflect a deliberate choice not to
seek immediate help, despite the possibility that his wife could have
CRLA No. 715 of 2023 Page 33 of 40
survived with timely medical care. The Appellant’s failure to act
appropriately in such a situation, coupled with his absence of any
reasonable explanation under Section 106 of the Indian Evidence
Act, significantly weakens his defence and supports the
prosecution’s case of foul play rather than suicide.
36. In a case of circumstantial evidence, before reaching a
conclusion, the Court is required to examine the evidence on the
touchstone of the decision reported in the matter of Sharad Birdhi
Chand Sarda vs. State of Maharashtra reported in AIR 1984 SC
1622 –
“3:3. Before a case against an accused vesting on
circumstantial evidence can be said to be fully
established the following conditions must be fulfilled
as laid down in Hanumant’s v. State of M.P. [1953]
SCR 1091.
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;
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 and in the absence of a corpus deliciti.
CRLA No. 715 of 2023 Page 34 of 40
Hanumant v. The State of Madhya Pradesh [1952]
SCR 1091; Tufail (Alias) Simmi v. State of Uttar
Pradesh [1969] 3 SCC 198; Ramgopal v. State of
Maharashtra AIR 1972 SC 656; and Shivaji Sahabrao
Babode & Anr. v. State of Maharashtra [1973] 2 SCC
793 referred to.
3:4. The cardinal principle of criminal jurisprudence
is that a case can be said to be proved only when there
is certain and explicit evidence and no pure moral
conviction.”
37. The prosecution has meticulously established a robust chain
of circumstantial evidence that firmly points to the Appellant’s guilt,
fulfilling the standards set forth in Sharad Birdhi Chand Sarda vs.
State of Maharashtra (supra). Each circumstance, from the forensic
findings to witness testimonies, aligns solely with the hypothesis of
the Appellant’s involvement in the crime, with no reasonable
alternative explanation. The conclusive nature of the evidence,
including ante-mortem injuries on the deceased, the Appellant’s
minor injuries inconsistent with his rescue claim, and the Appellant’s
immediate call to the police instead of seeking medical help,
collectively negates any hypothesis of innocence. Therefore, in all
likelihood and based on the well-founded evidence, the prosecution
has decisively proved the Appellant’s guilt.
38. It is pertinent to note that Section 106 of the Evidence Act
serves as an exception to the general rule that the burden of proof lies
with the prosecution. Under Section 106, if any fact is especially
within the knowledge of a person, the burden of proving that fact lies
upon him. As held in Anees v. State Govt. of NCT reported in 2024
INSC 368 by the Hon’ble Supreme Court –
“35. Section 106 of the Evidence Act reads as follows:
CRLA No. 715 of 2023 Page 35 of 40
“106. Burden of proving fact especially within
knowledge.– When any fact is especially within
the knowledge of any person, the burden of
proving that fact is upon him.
Illustration
(a) When a person does an act with some
intention other than that which the character and
circumstances of the act suggest, the burden of
proving that intention is upon him.
(b) A is charged with travelling on a railway
without a ticket. The burden of proving that he
had a ticket is on him.”
36. Section 106 of the Evidence Act referred to above
provides that when any fact is especially within the
knowledge of any person, the burden of proving that
fact is upon him. The word “especially” means facts
that are pre-eminently or exceptionally within the
knowledge of the accused. The ordinary rule that
applies to the criminal trials that the onus lies on the
prosecution to prove the guilt of the accused is not in
any way modified by the rule of facts embodied in
Section 106 of the Evidence Act. Section 106 of the
Evidence Act is an exception to Section 101 of the
Evidence Act. Section 101 with its illustration (a) lays
down the general rule that in a criminal case the burden
of proof is on the prosecution and Section 106 is
certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional
cases in which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to
establish the facts which are, “especially within the
knowledge of the accused and which, he can prove
without difficulty or inconvenience.”
39. Section 106 of the Evidence Act applies particularly in cases
where the accused is in a unique position to explain facts or
circumstances that are otherwise difficult for the prosecution to
establish. Therefore, in circumstances such as those presented here,
the Appellant is expected to provide an explanation for the events
within his exclusive knowledge, as required by Section 106 of the
CRLA No. 715 of 2023 Page 36 of 40
Evidence Act. The Appellant’s actions following the incident further
reinforce a strong link to his culpability. His repeated absences and
delays in appearing before the Court, alongside witnesses turning
hostile, reflect a pattern of evasion that is inconsistent with the
behaviour of an innocent person. By invoking Section 106 of the
Evidence Act, the prosecution rightfully argued that the Appellant,
being in exclusive control of the household and present at the time of
the incident, bore the burden of providing a plausible explanation for
the death of his wife. However, the Appellant’s narrative of suicide
was unsupported by both forensic evidence and witness testimonies,
leaving the prosecution’s version as the only plausible conclusion.
40. A disturbing fact before parting with the case is the glaring
reality that the witnesses have gone hostile, and the Appellant has
been persistently avoiding Court proceedings. The Appellant was
released on bail on 01.11.1995. Despite the order dated 27.10.1995
directing the case record to be placed before the Presiding Officer
(P.O.) on 10.11.1995, it was not presented until 20.09.1996, when
the final form was received by the Court.
Upon notice, the Appellant failed to appear before the Court
on 06.01.1997 and subsequently filed repeated petitions requesting
time to appear from 06.01.1997 until 26.11.1997. When the
Appellant did appear on 26.11.1997, the case was adjourned to
15.12.1997 for the supply of police papers. However, he continued to
be absent, represented solely by his lawyer. Due to his continued
absence, despite repeated notifications from the Court, a Non-
Bailable Warrant (NBW) was issued on 22.03.2003. Unfortunately,
this NBW remained unexecuted until 23.08.2013, when the trial
CRLA No. 715 of 2023 Page 37 of 40
Court issued an order directing the Petitioner to be released upon his
appearance.
The case record was subsequently transmitted to the Court of
sessions on 27.08.2013, with instructions for the Appellant to appear
before the Sessions Court. The matter was placed before the Sessions
Judge on 30.10.2013, on which date the charges were formally
framed, and the trial commenced.
41. The case record reveals a disappointing lapse in adherence to
the legislative mandate of Section 309 of the CrPC, which stipulates
that the trials should proceed on a day-to-day basis to ensure timely
justice. Despite the fact that the Forensic Science Laboratory was
situated only a few kilometres from the trial Court, the case
experienced repeated adjournments due to the unavailability of the
original Chemical Examination Report, without a diligent effort to
secure its prompt production.
Moreover, the delay in examining witnesses spanning nearly
four years from the first witness being examined on 24.06.2014 to
the last on 12.02.2018 exemplifies an unacceptably depressed pace
that fails to meet the standards expected of a fair and expeditious
trial. The accused statement, recorded as late as 28.03.2023, reflects
a gross departure from timely trial obligations, raising serious
concerns about the trial Court’s commitment to judicial efficiency.
While it appears that the Appellant may have contributed to certain
delays, the trial Court’s passive role in permitting such prolonged
adjournments cannot be overlooked. This regrettable delay
undermines the justice system’s ability to uphold procedural
mandates.
CRLA No. 715 of 2023 Page 38 of 40
42. In light of the above discussion, the conviction of the
Appellant under Sections 302 and 201 of the IPC stands firmly
substantiated. The prosecution has established, beyond a reasonable
doubt, that the Appellant intentionally caused the death of his wife,
fulfilling the requirements of Section 302 IPC for murder. The
forensic findings, including antemortem injury on the deceased, soot
in the trachea indicating inhalation during the fire, and the
Appellant’s implausible claims of suicide, all negate any hypothesis
other than intentional homicide.
Furthermore, the Appellant’s actions to mislead the
investigation and create a narrative of suicide meet the criteria under
Section 201 IPC for causing the disappearance of evidence. The
tampering with the scene and delayed call to the authorities, with no
attempt to seek immediate medical assistance, reflect clear intent to
mislead and obstruct the course of justice. Each element of Section
201 is satisfied, as the Appellant’s actions were intended to shield
himself from liability by erasing critical evidence of the crime.
43. The decisions referred to by the Appellant is not elaborately
discussed, as they are factually distinguishable. However, while
analysing the case in hand, the ratio of the decisions cited by the
learned counsel is taken care of. Thus, the evidence leaves no
reasonable ground for doubt regarding the Appellant’s guilt under
both Sections 302 and 201 IPC. The conviction on both counts is
therefore confirmed, as it is supported by a coherent and complete
chain of evidence that establishes the Appellant’s culpability.
44. The impugned order and judgment of the learned 3rd
Additional Sessions Judge, Bhubaneswar, in Crl. Trial No. 268 of
CRLA No. 715 of 2023 Page 39 of 40
2012, dated 27.06.2023, being consistent and akin to the evidence
both in fact and law cannot be faulted with and in our humble
opinion, the same meets the requirement of law with regard to the
circumstantial evidence is accordingly confirmed. Since the
sentence awarded is absolutely in accordance with law, there is
nothing to interfere therewith.
45. As a result, the Appeal stands dismissed being devoid of
merit.
46. The Appellant who is reported to be on bail is directed to
surrender forthwith before the learned trial Court to suffer the
sentences and deposit the fine amount. Needless to say, that on the
failure of the Appellant to surrender, the learned Court shall proceed
in accordance with law.
(Chittaranjan Dash)
Judge
(S.K. Sahoo)
Judge
A.K.Pradhan/Bijay
Signature Not Verified
Digitally Signed
Signed by: BIJAY KETAN SAHOO
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 30-Oct-2024 16:23:45
CRLA No. 715 of 2023 Page 40 of 40