ORIGINAL JURISDICTION - Orissa High Court

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lying dead with ligature mark on her neck. Suspecting foul play, they
informed the police. In course of postmortem examination, the doctor,
P.W.11, who conducted postmortem examination, was of the opinion that the
death of the deceased was homicidal due to strangulation. Even accepting
the evidence of P.W.11 that the deceased died a homicidal death, the only
circumstance available against the appellant is that he had given wrong
information to the family members of the deceased by stating that the
deceased was suffering from loose motion and vomiting. There is no
MANUA GOUDA -V- STATE OF ORISSA [L.MOHPATRA,J.]
material whatsoever on record to show that in the night of occurrence the
appellant and the deceased were together in the house of the appellant. In
absence of any material to the above effect, we are of the view that the trial
court was not justified in coming to a finding that under Section 106 of the
Evidence Act, the burden was on the appellant to explain the circumstances
under which the deceased died. In this connection, reference may be made
to a decision of the Apex Court in the case of Subramaniam Vrs. State of
Tamil Nadu and another reported in (2009) 43 OCR(SC)-591. The Apex
Court in the said case observed that when the husband and wife remained
within the four walls of a house and death by homicidal takes place, it will be
for the husband to explain the circumstances in which she might have died.
The Court further held although the same may be considered to be a strong
circumstance but that by alone in absence of any evidence of violence on
the deceased cannot be held to be conclusive. Under such circumstances, it
may be difficult to arrive at a conclusion that the husband and the husband
alone was responsible for the offence.
So far as present case is concerned, as stated, there is no iota of
evidence to establish that in the night of occurrence both the appellant was
present in the house. Therefore, even accepting that the deceased died a
homicidal death, the possibility of somebody else being responsible can not
be ruled out.
7. For the reasons stated above, we are of the view that the prosecution
has not been able to establish the charge against the appellant. Accordingly,
we allow the appeal and set aside the impugned judgment.
Appeal allowed.