THE STATE OF ODISHA versus BANABIHARI MOHAPATRA AND ANR. on 12 February 2021

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SUPREME COURT REPORTS

[2021] 1 S.C.R.

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THE STATE OF ODISHA

v.

BANABIHARI MOHAPATRA AND ANR.

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

BFEBRUARY 12, 2021

[INDIRA BANERJEE AND HEMANT GUPTA, JJ.]

Penal Code, 1860: ss.302/201 r/w s.34 – Prosecution casewas that the victim-deceased was found dead in shop of accusedwith a swollen belly and deep burn injury on right foot and bloodCwas oozing out of his mouth and nostrils – In the FIR lodged bycomplainant-wife of the deceased, she had stated that on the fatefulday, the first accused-respondenthad come to her house and toldher that the deceased was lying motionless and not responding tocalls and thereafter younger son of first accused also came andDgave similar information – Complainant alleged that first accusedand his son committed murder of her husband by applying electricshock after administering poisonous substances to him – As perpost mortem report, cause of death was electric shock, suffered bythe deceased within 24 hours from the time of examination – Thepost mortem doctor opined that the deceased was intoxicated withEalcohol and the death was either accidental, or homicidal, but notsuicidal – Acquittal by trial court – High Court dismissed state’sapplication for leave to appeal on the ground of delay of 41 daysbut after considering the merits of application for leave to appeal –State’s appeal against acquittal – Held: The mere fact that theFdeceased was lying dead at a room held by accused respondentNo.1 and that the accused had informed the complainant that thedeceased had been lying motionless and still, and not respondingto shouts and calls, would not establish that the respondentsmurdered the deceased – The post mortem report suggests that thedeath could have been accidental – Of the nine prosecutionGwitnesses, three witnesses were declared hostile by the prosecution– There were apparent inconsistencies, inaccuracies and inherentimprobabilities in the statements of witnesses – Prosecution miserablyfailed to establish the guilt of the accused Respondents – Theimpugned judgment of the High Court dismissing the appeal on the H

ground of delay did not call for interference under Art.136 of theConstitution of India.

Appeal against acquittal: An appeal against acquittal hasalways been on an altogether different pedestal from an appealagainst conviction – In an appeal against acquittal, where thepresumption of innocence in favour of the accused is reinforced,the appellate court would interfere with the order of acquittal onlywhen there is perversity – In this case, it cannot be said that thereasons given by the High Court to reverse the conviction of theaccused were flimsy, untenable or bordering on perverseappreciation of evidence.

Criminal law: Case based on circumstantial evidence – Beforea case against an accused can be said to be fully established oncircumstantial evidence, the circumstances from which the conclusionof guilt is to be drawn must fully be established and the facts soestablished should be consistent only with the hypothesis of guilt ofthe accused – There has to be a chain of evidence so complete, asnot to leave any reasonable doubt for any conclusion consistentwith the innocence of the accused and must show that in all humanprobability, the act must have been done by the accused.

Dismissing the special leave petition, the Court HELD: 1.1 The prosecution appears to have examined 9witnesses. There are no eye witnesses to the incident. Thedeceased had apparently died in a room held by the AccusedRespondent No.1. The Accused Respondents did not abscond.The Accused Respondents themselves informed the complainantthat the deceased was lying still and motionless, not respondingto calls. [Para 14][618-E-F]

Conclusion

1.2 The post mortem Report of the deceased reveals thatthe cause of death was electric shock, suffered by the deceasedwithin 24 hours from the time of examination. On post mortemexamination, the Doctor found food particles including meat inthe stomach of the deceased, and also detected smell of alcohol.The post mortem doctor opined that the deceased was intoxicatedwith alcohol and the death was either accidental, or homicidal, AB

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Abut not suicidal. There is no conclusive evidence that the deathwas homicidal. [Para 15][618-F-H]

1.3 The complaint lodged by the complainant is apparentlybased on suspicion. Since the Accused Respondents had informedthe complainant that the deceased was lying still and motionless,Bnot responding to calls and the body of the deceased was foundat the premises of the Accused Respondent No.1, the complainanthas assumed that the Accused Respondents killed the deceased.[Para 16][619-A-B]

1.4 In evidence, the complainant said that the AccusedCRespondent No.1, Banabihari, had taken a loan of Rs.20,000/-from the deceased which he had not repaid even though thedeceased had asked him to repay the amount. Significantly, thereis no whisper in the FIR, of any loan taken by the AccusedRespondent No.1 from the deceased. The reference to the allegedloan appears to be an afterthought, in an attempt to insinuate aDmotive for killing the deceased. [Para 17][619-B-C]

1.5 The mere fact that the deceased was lying dead at aroom held by the the Accused Respondent No.1 and that theAccused Respondents had informed the complainant that thedeceased had been lying motionless and still and not respondingEto shouts and calls, does not establish that the AccusedRespondents murdered the deceased. The post mortem reportsuggests that the death could have been accidental. [Para 18][619-C-E]

2.1 All the three witnesses related to the deceased, that isFthe second Prosecution Witness, being the wife of the deceased,the first Prosecution Witness, being the younger brother of thedeceased and the fourth Prosecution Witness, being the sister ofthe deceased have more or less reiterated what has been statedin the FIR with embellishments. There are, however, apparentGinconsistencies, inaccuracies and inherent improbabilities in thestatements of these witnesses. These three witnesses deposedthat they suspected that the accused Respondents had killed thedeceased as the deceased was asking the Accused Respondentsto repay Rs.20,000/- which the deceased had advanced to theAccused Respondents by way of loan. However, there is noH

whisper of the alleged loan in the FIR lodged by the complainantwife being the second Prosecution Witness. [Paras 25, 26][620-G-H; 621-A-B]

2.2 The Medical Officer found electrical wounds in the legwhich were sufficient to cause death. He opined that the injuriessustained by the deceased might have been due to contact withlive electric wire. He opined that the contact was prolonged. Theinjuries were ante mortem. This witness was of the opinion thatthe death may have been accidental or homicidal, but not suicidal.Nothing significant has emerged from the oral evidence of theInvestigating Officer, to establish the guilt of the AccusedRespondents. In her deposition, the Investigating Officer alsosaid that some local persons had stated that the first AccusedRespondent, out of animosity, killed the deceased by applyingelectric current. The oral evidence of the Investigating Officerin this regard is totally vague and devoid of particulars. TheInvestigating Officer had neither named the local persons norenquired into the source of their information if any. The localpersons have not been examined as witnesses. The Prosecutionmiserably failed to establish the guilt of the Accused Respondents.The Trial Court rightly acquitted the Accused Respondents.[Paras 30, 32, 33][622-D-E; 623-A-C]

3. An appeal against acquittal has always been on analtogether different pedestal from an appeal against conviction.In an appeal against acquittal, where the presumption ofinnocence in favour of the accused is reinforced, the appellatecourt would interfere with the order of acquittal only when thereis perversity. In this case, it cannot be said that the reasons givenby the High Court to reverse the conviction of the accused areflimsy, untenable or bordering on perverse appreciation ofevidence. [Para 34][623-C-E]

4. Before a case against an accused can be said to be fullyestablished on circumstantial evidence, the circumstances fromwhich the conclusion of guilt is to be drawn must fully beestablished and the facts so established should be consistent onlywith the hypothesis of guilt of the accused. There has to be achain of evidence so complete, as not to leave any reasonable AB

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Adoubt for any conclusion consistent with the innocence of theaccused and must show that in all human probability, the act musthave been done by the Accused. [Para 35][623-E-F]

Sadhu Saran Singh v. State of U.P. 2016 (4) SCC 357 :[2016] 1 SCR 913; Shanti Devi v. State of RajasthanB(2012) 12 SCC 158 : [2012] 9 SCR 226; Sujit Biswasv. State of Assam AIR 2013 SC 3817 : [2013] 3SCR 830; Kali Ram v. State of Himachal Pradesh AIR1973 SC 2773 : [1974] 1 SCR 722 –relied on.

Case Law Reference

DCRIMINAL APPELLATE JURISDICTION : Special LeavePetition (Crl.) No.1156 of 2021.

From the Judgment and Order dated 02.11.2020 of the High Courtof Orissa at Cuttack in CRLLP No. 14 of 2020.

ERavi Prakash Mehrotra, Ankit Agarwal, Advs. for the petitioner.The Judgment of the Court was delivered by INDIRA BANERJEE, J.

1. This Special Leave Petition filed by the State of Odisha is againstFa final judgment and order dated 2[nd] November, 2020 passed by theHigh Court of Orissa at Cuttack dismissing an application for leave toappeal being CRLLP No.14 of 2020 filed by the Petitioner State, againsta judgment dated 14[th] January, 2020 passed by the Sessions Judge,Bhadrak in S.T. Case No.182/392 of 2014, acquitting the Respondentsfrom charges under Sections 302/201 read with Section 34 of the IndianGPenal Code (IPC).

2. Learned Counsel appearing on behalf of the Petitioner Stateforcefully contended that the High Court committed gross error indismissing the application for leave to appeal filed by the Petitioner State H

on the ground of delay of 41 days, even though, there were seriouscharges against the Accused Respondents, including charges of murderunder Section 302 of the IPC.

3. It is true that the appeal has, by the impugned judgment andorder dated 2[nd] November 2020, been dismissed on the ground of delayof only 41 days in filing the CRLLP.

4. In a criminal case involving the serious offence of murder, theCourts do not ordinarily dismiss an appeal against a judgment and orderof the Trial Court, whether of conviction or of acquittal, on the soleground of some delay. This is to prevent miscarriage of justice.

5. However, in this case the application of the Petitioner State, forleave to appeal against the judgment and order of acquittal of theRespondent Accused, has been rejected on the ground of delay, butafter considering the merits of application for leave to appeal.

6. We have considered the contentions of the State of Odishabeing the petitioner before us. As per an FIR lodged with the police byone Gitanjali Tadu, hereinafter referred to as the “Complainant”, herhusband Bijay Kumar Tadu, hereinafter referred to as the “deceased”,had been working in the Home Guard, Chandabali and deputed atChandabali Police Station.

7. According to the Complainant, the deceased used to movearound with the first accused, Banabihari Mohapatra, who had an electricsales and repairing shop styled “Raja Electricals” at the Ferry Ghat areanear the Chandabali bus stand.

8. In the FIR, it is alleged that the first accused came to theresidence of the deceased at around 7.30 a.m. on 23[rd] June, 2014 andtold the Complainant that the deceased had been lying motionless andstill, not responding to calls. Later his younger son Luja alias SmrutiRanjan Mohapatra being the second Respondent also came and informedthe complainant that the deceased was lying motionless.

9. On hearing this, the Complainant along with her family memberswent to the Ferry Ghat near the Chandabali Bus Stand and found herhusband lying dead inside a room which was locked, with a swollen bellyand a deep burn injury on his right foot which was apparently caused byelectric shock. The body of the deceased appeared black and blood wasoozing out from the mouth and nostril of the deceased.

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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 hisfingers, and had been carrying Rs.800 for purchase of a new pair ofpants and shirt and Rs.5,000/- for purchase of articles for a marriage.

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B11. On making enquiries the complainant learnt that the deceasedhad not visited the house of the relative on that day. The complainanthas alleged that the Accused No.1 Banabihari Mohapatra, his son Lujaalias Smruti Ranjan Mohapatra, being the Accused No.2, and otheraccomplices committed murder of her husband by applying electric shockto him after administering some poisonous substances to him.C

12. The Sessions Judge Bhadrak framed charges against theAccused Respondents Banabihari Mohapatra and Luja @ Smruti RanjanMohapatra alleging that, together they had intentionally caused the deathof the deceased, thereby committing murder and had causeddisappearance of evidence and thus been guilty of offences under SectionsD302/201 read with Section 34 of the IPC.

13. We have carefully gone through the judgment of the SessionsJudge, Bhadrak, holding that the prosecution had failed to prove thecharges against the Accused Respondents or either of them underSection 302, or Section 201 read with Section 34 of the IPC, and acquittingEthem under Section 235(1) of the Cr.P.C.

14. The prosecution appears to have examined 9 witnesses. Thereare no eye witnesses to the incident. The deceased had apparently diedin a room held by the Accused Respondent No.1. The AccusedRespondents did not abscond. The Accused Respondents themselvesFinformed the complainant that the deceased was lying still and motionless,not responding to calls.

15. The post mortem Report of the deceased reveals that thecause of death was electric shock, suffered by the deceased within 24hours from the time of examination. On post mortem examination, theGDoctor found food particles including meat in the stomach of thedeceased, and also detected smell of alcohol. The post mortem doctoropined that the deceased was intoxicated with alcohol and the deathwas either accidental, or homicidal, but not suicidal. There is no conclusiveevidence that the death was homicidal.

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16. The complaint lodged by the complainant is apparently basedon suspicion. Since the Accused Respondents had informed thecomplainant that the deceased was lying still and motionless, notresponding to calls and the body of the deceased was found at thepremises of the Accused Respondent No.1, the complainant has assumedthat the Accused Respondents killed the deceased.

17. In evidence, the complainant said that the Accused RespondentNo.1, Banabihari, had taken a loan of Rs.20,000/- from the deceasedwhich he had not repaid even though the deceased had asked him torepay the amount. Significantly, there is no whisper in the FIR, of anyloan taken by the Accused Respondent No.1 from the deceased. Thereference to the alleged loan appears to be an afterthought, in an attemptto insinuate a motive for killing the deceased.

18. The mere fact that the deceased was lying dead at a roomheld by the the Accused Respondent No.1 and that the AccusedRespondents had informed the complainant that the deceased had beenlying motionless and still and not responding to shouts and calls, does notestablish that the Accused Respondents murdered the deceased. At thecost of repetition it is reiterated that the post mortem report suggeststhat the death could have been accidental.

19. We have perused the evidence of the nine ProsecutionWitnesses, namely, the first Prosecution Witness Dhanjaya Tadu, youngerbrother of the deceased, the second Prosecution Witness Gitanjali Tadu,wife of the deceased, the third Prosecution Witness, Ajay Sahoo, a ShopKeeper at the locality where dead body of the deceased was found, thefourth Prosecution Witness, Smt. Bijayalaxmi Tadu, sister of thedeceased, the fifth Prosecution Witness, Bailochan Bej, a Barber byprofession who knew the complainant and the deceased as also theaccused persons who resided in the Chandabali Police Station area, thesixth Prosecution Witness, Manmohan Sutar, an auto driver, the seventhProsecution Witness, Aswini Kumar Nayak, a cultivator residing atNayahat in the Chandabali Police Station area of Bhadrak, the 8[th]Prosecution Witness, Dr. Bhisma Parida, being the Doctor who conductedthe autopsy/ post mortem examination of the deceased and the ninthProsecution Witness Smt. Kumari Behera, Sub Inspector of Police, whowas the Investigating Officer.

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A20. 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 Nayakwere declared hostile by the Prosecution.

21. The third Prosecution Witness said that he had only seen theBpolice shifting the dead body of the deceased and knew nothing moreabout the case. Nothing has emerged from his cross-examination by thePublic Prosecutor. In his cross-examination by the defence, he said therewas no electric connection in the house from which the body of thedeceased was brought out. He even said that the Accused Respondentsdid not own any shop dealing with electric appliances. No credence canCbe given to this witness.

22. The fifth Prosecution Witness, Bailochan Bej, deniedknowledge of the case. He said that the police had not examined him,nor recorded any statement made by him. In cross-examination by theprosecution, he only said that he had a saloon at Chandabali Police Station,DBhadrak. He categorically denied having made the statements attributedto him by the police.

23. The seventh Prosecution Witness, Durga Charan Nayak onlysaid that he had seen the body of the deceased in the rented place nearthe Chandabali bus stand with bleeding injury on his right leg and bloodEoozing from his mouth and nostrils. He said he did not know how thedeceased suffered the injury or died. Nothing significant has emergedfrom his cross-examination by the Public Prosecutor.

24. The sixth Prosecution Witness, Manmohan Sutar deposed thathe knew the informant, the deceased as also the Accused Respondents.FIn a nutshell, he only confirmed that the dead body was in the shop ofthe Accused Respondents in Home Guard uniform. Inquest of the bodywas conducted in his presence. He identified his signature in the InquestReport. He also said he had noticed a bleeding injury in the right foot ofthe deceased and blood oozing from the mouth and nostrils.G25. All the three witnesses related to the deceased, that is thesecond Prosecution Witness, being the wife of the deceased, the firstProsecution Witness, being the younger brother of the deceased and thefourth Prosecution Witness, being the sister of the deceased have moreor less reiterated what has been stated in the FIR with embellishments.

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There are, however, apparent inconsistencies, inaccuracies and inherentimprobabilities in the statements of these witnesses.

26. These three witnesses deposed that they suspected that theaccused Respondents had killed the deceased as the deceased was askingthe Accused Respondents to repay Rs.20,000/- which the deceased hadadvanced to the Accused Respondents by way of loan. However, asobserved above, there is no whisper of the alleged loan in the FIR lodgedby the complainant wife being the second Prosecution Witness.

27. That apart, the first and fourth Prosecution Witnesseshaveadmitted in cross-examination that they did not have first hand knowledgeof the loan alleged to be advanced by the deceased to the AccusedRespondent No.1. The first Prosecution Witness said that the complainant(PW2) had told him that the Accused Respondent No.1 had not repaidloan of Rs.20,000/- to the deceased. The fourth Respondent said shehad heard about the loan from her deceased brother. Though she saidthat the loan was given to the Accused Respondent No.1 at the time ofhis daughter’s marriage she could not say how long ago the loan wasgiven. She could not even tell the approximate date or year of marriageof the Accused Respondent No.1’s daughter.

28. From the evidence of the first and the second ProsecutionWitnesses it transpires that the deceased had left his house at around10.00 a.m. on 22[nd] June 2014, to go to his Aunt’s house in connectionwith his Aunt’s daughter’s marriage. He was wearing a gold chain andtwo gold rings and carried Rs.800/- with him for buying a pair of trousersand 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, difficultto understand why the deceased should have been wearing his homeguard uniform if he were going to visit his Aunt in connection with themarriage of his Aunt’s daughter. There is evidence to show that thedeceased was found in his home guard uniform. The relevance of theplan of the deceased to go to his Aunt’s house or his plan to buy clothesetc. is also not clear. This is in no way linked to the incident of death ofthe deceased. Prosecution has failed to show a link between the proposedvisit of the deceased to his Aunt’s house with the guilt, if any, of theAccused Respondents.

29. The evidence of the first Prosecution Witness Dhanjaya Tadu,brother of the deceased, that he had found the motor cycle of the AB

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Adeceased in front of the shop of the accused persons on the evening ofthe 22[nd] June 2014, is difficult to accept. He said he had asked thesecond accused about whereabouts of his brother to which the secondaccused had expressed ignorance, but on the next day, the secondAccused Respondent and his father informed them that his brother waslying senseless. It seems rather unnatural that this witness, who was theBbrother of the deceased, should have chosen not to make any inquiryeither in the police station or in the neighbourhood, even after seeing themotor cycle of the deceased in front of the shop, and after being told hisbrother was not in the shop. No attempt was made to look for the deceasedeven though he did not return home all night.C

30. The eighth Prosecution Witness, Dr. Bhisma Parida, who hadat the time of death of the deceased been posted as Medical Officer atCHC Chandabali and had conducted the autopsy/post mortemexamination of the deceased at around 1.00 p.m. on 24[th] June 2014,deposed that the deceased died due to electrical injury, suffered withinD24 hours of the autopsy. The stomach of the deceased was full of foodparticles including meat and there was smell of alcohol. The deceasedhad been intoxicated with alcohol. The Medical Officer found electricalwounds in the leg which were sufficient to cause death. He opined thatthe injuries sustained by the deceased might have been due to contactwith live electric wire. He opined that the contact was prolonged. TheEinjuries were ante mortem. This witness was of the opinion that thedeath may have been accidental or homicidal, but not suicidal.

31. Nothing significant has emerged from the oral evidence of theninth Prosecution Witness, Smt. Kumari Behera, the Investigating Officer,to establish the guilt of the Accused Respondents. She only stated thatFthe fifth Prosecution Witness had in course of examination stated beforeher that the first Accused Respondent and the deceased used one of thequarters where they regularly took tiffin and they were both presentthere on the date of the incident in Court. The fifth Prosecution Witness,however, denied having made any such statement to the Police andGremained unshaken in cross-examination by the Public Prosecutor. Heonly admitted that he had a saloon in the area, but denied knowing thedeceased, the Accused Respondents or the informant. The fifthProsecution Witness said that the Police had neither examined him, norrecorded his statement.

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32. In her deposition, the Investigating Officer also said that somelocal persons had stated that the first Accused Respondent, Banabhiharihad, out of animosity, killed the deceased by applying electric current.The oral evidence of the Investigating Officer in this regard is totallyvague and devoid of particulars. The Investigating Officer (PW-9) hadneither named the local persons nor enquired into the source of theirinformation if any. The local persons have not been examined aswitnesses.

33. The Prosecution miserably failed to establish the guilt of theAccused Respondents. The Trial Court rightly acquitted the AccusedRespondents. 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 alwaysbeen on an altogether different pedestal from an appeal against conviction.In an appeal against acquittal, where the presumption of innocence infavour of the accused is reinforced, the appellate court would interferewith the order of acquittal only when there is perversity. In this case, itcannot be said that the reasons given by the High Court to reverse theconviction of the accused are flimsy, untenable or bordering on perverseappreciation of evidence.

35. Before a case against an accused can be said to be fullyestablished on circumstantial evidence, the circumstances from whichthe conclusion of guilt is to be drawn must fully be established and thefacts so established should be consistent only with the hypothesis of guiltof the accused. There has to be a chain of evidence so complete, as notto leave any reasonable doubt for any conclusion consistent with theinnocence 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) 12SCC 158, this Court held that the principles for conviction of the accusedbased on circumstantial evidence are:

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

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

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A10.3. The circumstances taken cumulatively must form a chainso complete that there is no escape from the conclusion that withinall human probability, the crime was committed by the accusedand none else.

10.4. The circumstantial evidence in order to sustain convictionBmust be complete and incapable of explanation of any otherhypothesis than that of the guilt of the accused and such evidenceshould not only be consistent with the guilt of the accused butshould be inconsistent with his innocence.”

37. Keeping the above test in mind, we have no iota of doubt thatCthe Trial Court rightly acquitted the Accused Respondents. There is astrong possibility that the accused, who was as per the opinion of thedoctor who performed the autopsy, intoxicated with alcohol, might haveaccidentally touched a live electrical wire, may be while he was asleep.The impugned judgment of the High Court dismissing the appeal on theground of delay does not call for interference under Article 136 of theDConstitution of India.

38. It is well settled by a plethora of judicial pronouncement ofthis Court that suspicion, however strong cannot take the place of proof.An accused is presumed to be innocent unless proved guilty beyondreasonable doubt. This proposition has been reiterated in Sujit BiswasEv. State of Assam reported in AIR 2013 SC 3817.

39. In Kali Ram v. State of Himachal Pradesh reported in AIR1973 SC 2773, this Court observed:-

“Another golden thread which runs through the web of theFadministration of justice in criminal cases is that if two views arepossible on the evidence adduced in the case one pointing to theguilt of the accused and the other to his innocence, the view whichis favourable to the accused should be adopted. This principle hasa special relevance in cases where in the guilt of the accused issought is to be established by circumstantial evidence.”G

40. For the reasons discussed above, we find no ground to interferewith the impugned judgment and order of the High Court under Article136 of the Constitution of India. Consequently, the Special Leave Petitionis dismissed. Pending application stands disposed of.HDevika GujralPetition dismissed.