The State Of Odisha vs Banabihari Mohapatra on 12 February, 2021


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Supreme Court of India

The State Of Odisha vs Banabihari Mohapatra on 12 February, 2021

Author: Hon’Ble Ms. Banerjee

Bench: Hon’Ble Ms. Banerjee, Hemant Gupta

                                                                                   Reportable


                                          IN THE SUPREME COURT OF INDIA
                                      CRIMINAL APPELLATE JURISDICTION

                                  Special Leave Petition (Crl.) No.1156/2021


                      The State of Odisha                                     ...Petitioner (s)

                                                    Versus

                      Banabihari Mohapatra and Anr.                        …Respondent(s)




                                               JUDGMENT

Indira Banerjee, J.

This Special Leave Petition filed by the State of Odisha is against

a final judgment and order dated 2nd November, 2020 passed by the

High Court of Orissa at Cuttack dismissing an application for leave to

appeal being CRLLP No.14 of 2020 filed by the Petitioner State, against a

judgment dated 14th January, 2020 passed by the Sessions Judge,

Bhadrak in S.T. Case No.182/392 of 2014, acquitting the Respondents

from charges under Sections 302/201 read with Section 34 of the Indian

Penal Code (IPC).

2. Learned Counsel appearing on behalf of the Petitioner State
Signature Not Verified

Digitally signed by
Nidhi Ahuja
Date: 2021.02.19
forcefully contended that the High Court committed gross error in
17:17:25 IST
Reason:

dismissing the application for leave to appeal filed by the Petitioner

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State on the ground of delay of 41 days, even though, there were

serious charges against the Accused Respondents, including charges of

murder under Section 302 of the IPC.

3. It is true that the appeal has, by the impugned judgment and

order dated 2nd November 2020, been dismissed on the ground of delay

of only 41 days in filing the CRLLP.

4. In a criminal case involving the serious offence of murder, the

Courts do not ordinarily dismiss an appeal against a judgment and order

of the Trial Court, whether of conviction or of acquittal, on the sole

ground of some delay. This is to prevent miscarriage of justice.

5. However, in this case the application of the Petitioner State, for

leave to appeal against the judgment and order of acquittal of the

Respondent Accused, has been rejected on the ground of delay, but

after considering the merits of application for leave to appeal.

6. We have considered the contentions of the State of Odisha being

the petitioner before us. As per an FIR lodged with the police by one

Gitanjali Tadu, hereinafter referred to as the “Complainant”, her husband

Bijay Kumar Tadu, hereinafter referred to as the “deceased”, had been

working in the Home Guard, Chandabali and deputed at Chandabali

Police Station.

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7. According to the Complainant, the deceased used to move

around with the first accused, Banabihari Mohapatra, who had an

electric sales and repairing shop styled “Raja Electricals” at the Ferry

Ghat area near the Chandabali bus stand.

8. In the FIR, it is alleged that the first accused came to the

residence of the deceased at around 7.30 a.m. on 23 rd June, 2014 and

told the Complainant that the deceased had been lying motionless and

still, not responding to calls. Later his younger son Luja alias Smruti

Ranjan Mohapatra being the second Respondent also came and

informed the complainant that the deceased was lying motionless.

9. On hearing this, the Complainant along with her family members

went to the Ferry Ghat near the Chandabali Bus Stand and found her

husband lying dead inside a room which was locked, with a swollen belly

and a deep burn injury on his right foot which was apparently caused by

electric shock. The body of the deceased appeared black and blood was

oozing out from the mouth and nostril of the deceased.

10. In the FIR, the complainant has alleged that on 22 nd June, 2016,

the deceased had left the house to go to the house of a relative. He had

been wearing a gold chain on his neck and two gold rings on his fingers,

and had been carrying Rs.800 for purchase of a new pair of pants and

shirt and Rs.5,000/- for purchase of articles for a marriage.

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11. On making enquiries the complainant learnt that the deceased

had not visited the house of the relative on that day. The complainant

has alleged that the Accused No.1 Banabihari Mohapatra, his son Luja

alias Smruti Ranjan Mohapatra, being the Accused No.2, and other

accomplices committed murder of her husband by applying electric

shock to him after administering some poisonous substances to him.

12. The Sessions Judge Bhadrak framed charges against the Accused

Respondents Banabihari Mohapatra and Luja @ Smruti Ranjan

Mohapatra alleging that, together they had intentionally caused the

death of the deceased, thereby committing murder and had caused

disappearance of evidence and thus been guilty of offences under

Sections 302/201 read with Section 34 of the IPC.

13. We have carefully gone through the judgment of the Sessions

Judge, Bhadrak, holding that the prosecution had failed to prove the

charges against the Accused Respondents or either of them under

Section 302, or Section 201 read with Section 34 of the IPC, and

acquitting them under Section 235(1) of the Cr.P.C.

14. The prosecution appears to have examined 9 witnesses. There

are no eye witnesses to the incident. The deceased had apparently died

in a room held by the Accused Respondent No.1. The Accused

Respondents did not abscond. The Accused Respondents themselves

informed the complainant that the deceased was lying still and

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motionless, not responding to calls.

15. The post mortem Report of the deceased reveals that the cause

of death was electric shock, suffered by the deceased within 24 hours

from the time of examination. On post mortem examination, the Doctor

found food particles including meat in the stomach of the deceased,

and also detected smell of alcohol. The post mortem doctor opined that

the deceased was intoxicated with alcohol and the death was either

accidental, or homicidal, but not suicidal. There is no conclusive

evidence that the death was homicidal.

16. The complaint lodged by the complainant is apparently based on

suspicion. Since the Accused Respondents had informed the

complainant that the deceased was lying still and motionless, not

responding to calls and the body of the deceased was found at the

premises of the Accused Respondent No.1, the complainant has

assumed that the Accused Respondents killed the deceased.

17. In evidence, the complainant said that the Accused Respondent

No.1, Banabihari, had taken a loan of Rs.20,000/- from the deceased

which he had not repaid even though the deceased had asked him to

repay the amount. Significantly, there is no whisper in the FIR, of any

loan taken by the Accused Respondent No.1 from the deceased. The

reference to the alleged loan appears to be an afterthought, in an

attempt to insinuate a motive for killing the deceased.

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18. The mere fact that the deceased was lying dead at a room held

by the the Accused Respondent No.1 and that the Accused

Respondents had informed the complainant that the deceased had been

lying motionless and still and not responding to shouts and calls, does

not establish that the Accused Respondents murdered the deceased. At

the cost of repetition it is reiterated that the post mortem report

suggests that the death could have been accidental.

19. We have perused the evidence of the nine Prosecution Witnesses,

namely, the first Prosecution Witness Dhanjaya Tadu, younger brother of

the deceased, the second Prosecution Witness Gitanjali Tadu, wife of the

deceased, the third Prosecution Witness, Ajay Sahoo, a Shop Keeper at

the locality where dead body of the deceased was found, the fourth

Prosecution Witness, Smt. Bijayalaxmi Tadu, sister of the deceased, the

fifth Prosecution Witness, Bailochan Bej, a Barber by profession who

knew the complainant and the deceased as also the accused persons

who resided in the Chandabali Police Station area, the sixth Prosecution

Witness, Manmohan Sutar, an auto driver, the seventh Prosecution

Witness, Aswini Kumar Nayak, a cultivator residing at Nayahat in the

Chandabali Police Station area of Bhadrak, the 8 th Prosecution Witness,

Dr. Bhisma Parida, being the Doctor who conducted the autopsy/ post

mortem examination of the deceased and the ninth Prosecution Witness

Smt. Kumari Behera, Sub Inspector of Police, who was the Investigating

Officer.

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20. Of the nine Prosecution Witnesses, three witnesses namely, the

third Prosecution Witness, Ajay Sahoo, the fifth Prosecution Witness,

Bailochan Bej and the seventh Prosecution Witness, Durga Charan Nayak

were declared hostile by the Prosecution.

21. The third Prosecution Witness said that he had only seen the police

shifting the dead body of the deceased and knew nothing more about

the case. Nothing has emerged from his cross-examination by the

Public Prosecutor. In his cross-examination by the defence, he said there

was no electric connection in the house from which the body of the

deceased was brought out. He even said that the Accused Respondents

did not own any shop dealing with electric appliances. No credence can

be given to this witness.

22. The fifth Prosecution Witness, Bailochan Bej, denied knowledge of

the case. He said that the police had not examined him, nor recorded

any statement made by him. In cross-examination by the prosecution,

he only said that he had a saloon at Chandabali Police Station, Bhadrak.

He categorically denied having made the statements attributed to him

by the police.

23. The seventh Prosecution Witness, Durga Charan Nayak only said

that he had seen the body of the deceased in the rented place near the

Chandabali bus stand with bleeding injury on his right leg and blood

oozing from his mouth and nostrils. He said he did not know how the

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deceased suffered the injury or died. Nothing significant has emerged

from his cross-examination by the Public Prosecutor.

24. The sixth Prosecution Witness, Manmohan Sutar deposed that he

knew the informant, the deceased as also the Accused Respondents. In

a nutshell, he only confirmed that the dead body was in the shop of the

Accused Respondents in Home Guard uniform. Inquest of the body was

conducted in his presence. He identified his signature in the Inquest

Report. He also said he had noticed a bleeding injury in the right foot of

the deceased and blood oozing from the mouth and nostrils.

25. All the three witnesses related to the deceased, that is the

second Prosecution Witness, being the wife of the deceased, the first

Prosecution Witness, being the younger brother of the deceased and the

fourth Prosecution Witness, being the sister of the deceased have more

or less reiterated what has been stated in the FIR with embellishments.

There are, however, apparent inconsistencies, inaccuracies and inherent

improbabilities in the statements of these witnesses.

26. These three witnesses deposed that they suspected that the

accused Respondents had killed the deceased as the deceased was

asking the Accused Respondents to repay Rs.20,000/- which the

deceased had advanced to the Accused Respondents by way of loan.

However, as observed above, there is no whisper of the alleged loan in

the FIR lodged by the complainant wife being the second Prosecution

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Witness.

27. That apart, the first and fourth Prosecution Witnesses have

admitted in cross-examination that they did not have first hand

knowledge of the loan alleged to be advanced by the deceased to the

Accused Respondent No.1. The first Prosecution Witness said that the

complainant (PW2) had told him that the Accused Respondent No.1 had

not repaid loan of Rs.20,000/- to the deceased. The fourth Respondent

said she had heard about the loan from her deceased brother. Though

she said that the loan was given to the Accused Respondent No.1 at the

time of his daughter’s marriage she could not say how long ago the loan

was given. She could not even tell the approximate date or year of

marriage of the Accused Respondent No.1’s daughter.

28. From the evidence of the first and the second Prosecution

Witnesses it transpires that the deceased had left his house at around

10.00 a.m. on 22nd June 2014, to go to his Aunt’s house in connection

with his Aunt’s daughter’s marriage. He was wearing a gold chain and

two gold rings and carried Rs.800/- with him for buying a pair of trousers

and shirt and Rs.5000/- for articles for the marriage. Enquiries,

however, revealed that he had not gone to his Aunt’s house. It is,

however, difficult to understand why the deceased should have been

wearing his home guard uniform if he were going to visit his Aunt in

connection with the marriage of his Aunt’s daughter. There is evidence

to show that the deceased was found in his home guard uniform. The

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relevance of the plan of the deceased to go to his Aunt’s house or his

plan to buy clothes etc. is also not clear. This is in no way linked to the

incident of death of the deceased. Prosecution has failed to show a link

between the proposed visit of the deceased to his Aunt’s house with the

guilt, if any, of the Accused Respondents.

29. The evidence of the first Prosecution Witness Dhanjaya Tadu,

brother of the deceased, that he had found the motor cycle of the

deceased in front of the shop of the accused persons on the evening of

the 22nd June 2014, is difficult to accept. He said he had asked the

second accused about whereabouts of his brother to which the second

accused had expressed ignorance, but on the next day, the second

Accused Respondent and his father informed them that his brother was

lying senseless. It seems rather unnatural that this witness, who was

the brother of the deceased, should have chosen not to make any

inquiry either in the police station or in the neighbourhood, even after

seeing the motor cycle of the deceased in front of the shop, and after

being told his brother was not in the shop. No attempt was made to look

for the deceased even though he did not return home all night.

30. The eighth Prosecution Witness, Dr. Bhisma Parida, who had at

the time of death of the deceased been posted as Medical Officer at CHC

Chandabali and had conducted the autopsy/post mortem examination of

the deceased at around 1.00 p.m. on 24 th June 2014, deposed that the

deceased died due to electrical injury, suffered within 24 hours of the

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autopsy. The stomach of the deceased was full of food particles

including meat and there was smell of alcohol. The deceased had been

intoxicated with alcohol. The Medical Officer found electrical wounds in

the leg which were sufficient to cause death. He opined that the injuries

sustained by the deceased might have been due to contact with live

electric wire. He opined that the contact was prolonged. The injuries

were ante mortem. This witness was of the opinion that the death may

have been accidental or homicidal, but not suicidal.

31. Nothing significant has emerged from the oral evidence of the

ninth Prosecution Witness, Smt. Kumari Behera, the Investigating Officer,

to establish the guilt of the Accused Respondents. She only stated that

the fifth Prosecution Witness had in course of examination stated before

her that the first Accused Respondent and the deceased used one of the

quarters where they regularly took tiffin and they were both present

there on the date of the incident in Court. The fifth Prosecution Witness,

however, denied having made any such statement to the Police and

remained unshaken in cross-examination by the Public Prosecutor. He

only admitted that he had a saloon in the area, but denied knowing the

deceased, the Accused Respondents or the informant. The fifth

Prosecution Witness said that the Police had neither examined him, nor

recorded his statement.

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32. In her deposition, the Investigating Officer also said that some

local persons had stated that the first Accused Respondent, Banabhihari

had, out of animosity, killed the deceased by applying electric current.

The oral evidence of the Investigating Officer in this regard is totally

vague and devoid of particulars. The Investigating Officer (PW-9) had

neither named the local persons nor enquired into the source of their

information if any. The local persons have not been examined as

witnesses.

33. The Prosecution miserably failed to establish the guilt of the

Accused Respondents. The Trial Court rightly acquitted the Accused

Respondents. There is no infirmity in the judgment of the Trial Court,

that calls for interference

34. As held by this Court in Sadhu Saran Singh v. State of U.P.

reported in 2016 (4) SCC 357, an appeal against acquittal has always

been on an altogether different pedestal from an appeal against

conviction. In an appeal against acquittal, where the presumption of

innocence in favour of the accused is reinforced, the appellate court

would interfere with the order of acquittal only when there is perversity.

In this case, it cannot be said that the reasons given by the High Court

to reverse the conviction of the accused are flimsy, untenable or

bordering on perverse appreciation of evidence.

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35. Before a case against an accused can be said to be fully

established on circumstantial evidence, the circumstances from which

the conclusion of guilt is to be drawn must fully be established and the

facts so established should be consistent only with the hypothesis of

guilt of the accused. There has to be a chain of evidence so complete,

as not to leave any reasonable doubt for any 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.

36. In Shanti Devi v. State of Rajasthan reported in (2012) 12

SCC 158, this Court held that the principles for conviction of the

accused based on circumstantial evidence are:

“10.1. The circumstances from which an inference of
guilt is sought to be proved must be cogently or firmly
established.

10.2. The circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
accused.

10.3. The circumstances taken cumulatively must form
a chain so complete that there is no escape from the
conclusion that within all human probability, the crime
was committed by the accused and none else.
10.4. The circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should
be inconsistent with his innocence.”

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37. Keeping the above test in mind, we have no iota of doubt that the

Trial Court rightly acquitted the Accused Respondents. There is a

strong possibility that the accused, who was as per the opinion of the

doctor who performed the autopsy, intoxicated with alcohol, might

have accidentally touched a live electrical wire, may be while he was

asleep. The impugned judgment of the High Court dismissing the

appeal on the ground of delay does not call for interference under

Article 136 of the Constitution of India.

38. It is well settled by a plethora of judicial pronouncement of this

Court that suspicion, however strong cannot take the place of proof. An

accused is presumed to be innocent unless proved guilty beyond

reasonable doubt. This proposition has been reiterated in Sujit Biswas

v. State of Assam reported in AIR 2013 SC 3817.

39. In Kali Ram v. State of Himachal Pradesh reported in AIR

1973 SC 2773, this Court observed:-

“Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case one pointing
to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted.
This principle has a special relevance in cases where in the
guilt of the accused is sought is to be established by
circumstantial evidence.”

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40. For the reasons discussed above, we find no ground to interfere

with the impugned judgment and order of the High Court under Article

136 of the Constitution of India. Consequently, the Special Leave

Petition is dismissed. Pending application stands disposed of.

……………………………………………J.

[Indira Banerjee]

…………………………………………….J.

[Hemant Gupta]

New Delhi;

February 12, 2021

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