Orissa High Court
Pradeep Behera vs State Of Orissa on 11 June, 2021
HIGH COURT OF ORISSA: CUTTACK.
CRLA No.228 of 2003
From the judgment of conviction and order of sentence dated 18.07.2003
passed by Shri Sukumar Sahu, learned Additional Sessions Judge,
Bhawanipatna in Sessions Case No.2/4 of 2003 (arising out of G.R. Case
No.429 of 2002 (T.R. No.2592 of 2002) of the court of the learned S.D.J.M.,
Bhawanipatna).
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Pradeep Behera ...... Appellant.
- Versus-
State of Orissa ....... Respondent.
For Appellant : M/s. Milan Kanungo, Sr. Adv.,
D. Pradhan, S. Nanda,
Y. Mohanty, B. Kanungo
and Y.S.P. Bagh.
For Respondent : Mrs. Saswata Patnaik,
Additional Government Advocate.
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PRESENT:
SHRI JUSTICE S. K. MISHRA
AND
SHRI JUSTICE PRAMATH PATNAIK
_____________________________________________________________
Date of Hearing- 11.11.2020 & 11.06.2021
and
Date of Judgment- 11.06.2021
S. K. MISHRA, J. In this appeal, the sole appellant/convict-Pradeep Behera
assails his conviction under Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as "the Penal Code" for brevity) and sentence to
undergo imprisonment for life recorded by the learned Additional Sessions
Judge, Bhawanipatna in Sessions Case No.2/4 of 2003 (arising out of G.R.
Case No.429 of 2002 (T.R. No.2592 of 2002) of the court of the
learned S.D.J.M., Bhawanipatna) vide judgment of conviction and
order of sentence dated 18.07.2003.
02. The deceased happens to be the wife of the appellant. They
were married for about 12 to 13 years prior to the occurrence. On
30.07.2002, the brother of the deceased received information that deceased
Pratima Behera had sustained burn injuries on her person. He immediately
rushed to the District Headquarters Hospital, Bhawanipatna. On that day
also her father Suresh Chandra Joshi also received information and rushed to
the District Headquaters Hospital, Bhawanipatna and found that the
deceased was hospitalized. During treatment she succumbed to the injuries
on 31.07.2002 at about 06.45 A.M. Dr. Sanjaya Kumar Behera treated the
deceased and reported to the police that said Pratima Behera died of burn
injuries. Prior to her death, though a request was sent by the doctor for
recording of her dying declaration, the investigating agency failed to record
the dying declaration of the deceased. On 31.07.2002 at about 2.00 P.M. the
said Suresh Chandra Joshi, the father of the deceased, lodged a report before
the Inspector-In-Charge, Bhawanipatna Town Police Station, Bhawanipatna
regarding the incident for which Bhawanipatna Town Police Station Case
No.133(29) was registered for commission of offences under Section
498A/302/ 304B of the Penal Code read with Section 4 of the Dowry
Prohibition Act, 1961 (hereinafter referred to as "the D.P. Act" for
brevity). The Investigating Officer took up investigation and after
completion of investigation, submitted charge-sheet against the
appellant. On submission of charge-sheet, learned Additional Sessions
Judge, Bhawanipatna, framed charges under Sections 498A and 302 of the
Penal Code. No charge was framed under Section 304B of the Penal Code or
under Section 4 of the D.P. Act.
03. The prosecution in order to establish its case examined 14
witnesses. P.W.1 (Suresh Chandra Joshi) happens to be the father of the
deceased and informant of the case. P.W.2 (Dillip Kumar Behera) and P.W.3
(Jayant Kumar Behera) are brothers of the appellant whereas P.W.5
(Pradyumna Kumar Joshi) is the younger brother of the deceased. P.W.13
(Pratika Behera @ Chintu) is the minor son of the deceased and the
appellant. P.W.4 (Aimati Gahir) is a maidservant in the house of the
appellant and the deceased. P.W.6 (Dillip Kumar Budhia), P.W.7 (Bhaskar
Puta), P.W.8 (Ramesh Prasad Sahu) and P.W.12 (Prasanta Kumar Pradhan),
a Constable of Bhawanipatna Town Police Station, Bhawanipatna, are
formal witnesses being witnessed to the seizures, inquest etc. P.W.9 (Dr.
Sanjaya Kumar Behera) treated the deceased as an injured and submitted
report to the police station on 30.07.2002 at 5.00 P.M. P.W.10 (Dr. Debasis
Pattnaik) is the Assistant Surgeon who on examination of the deceased
declared her dead. P.W.11 (Mohanlal Chouhan), the A.S.I. of
Police and P.W.14 (Banchhanidhi Choudhury), the S.I. of
Police, are the two police officers who conducted investigation of
the case. In addition to examining of the aforesaid witnesses, prosecution
also led into evidence ten exhibits and one material object. The post-mortem
examination report has been marked as Ext.8. Post-mortem examination
report has been proved through P.W.9 as he was acquainted with the
signature and hand-writing of Dr. P.P. Swain who had conducted post-
mortem examination of the dead body of the deceased.
04. Admittedly, prosecution witnesses have not supported the case
of the prosecution. Except official witnesses, all other witnesses have been
declared hostile by the prosecution. This fact is borne out from the
observations made by the learned Additional Sessions Judge, Bhawanipatna
at paragraphs 6 and 7 of the impugned judgment. We think it apposite to
quote the paragraphs 6 and 7 of the impugned judgment as below:
"6. Coming to the facts of the case before this court
while arguments were concluded after conclusion of trial
learned defence counsel Sri S.K Panda appearing for the
accused submitted that prosecution has miserably failed to
prove its case beyond all reasonable doubts and even
though father and brother of the deceased respectively
(P.W.1 and 5) have been examined in this case, none of
them whispered a single word incriminating the accused
with the alleged offence and even though the brother -
P.W.5 was present during inquest over the dead body and
has signed in the inquest report, he does not state anything
incriminating the accused with the alleged offence.
Moreover, it is the submission of learned Sri S.K.
Panda that F.I.R has not been lodged either by father or by
the brother and in such circumstances the accused is
entitled to the benefit of doubt and may be acquitted.
7. The learned Additional Public Prosecutor Sri
B.K. Patra appearing for the state was candid to
express that (he) fairly concedes to the submissions of the
learned defence counsel Sri. S.K. Panda." (emphasis
added)
05. After citing the aforesaid submissions, learned Additional
Sessions Judge, Bhawanipatna has observed that since the accused has failed
to prove that it is a case of suicide or a case of death caused by nobody else
other then the accused himself coupled with the fact that the appellant did
not have direct communication with his wife who was about to die and could
have been in a position to dislodge the circumstances weighing against him,
came to the conclusion that the circumstances in this case are fully
established and formed a complete chain of circumstances unerringly
pointing to the guilt of the convict/ appellant.
06. In order to establish the case, it proposes, in a criminal trial,
prosecution must establish each and every circumstances beyond all
reasonable doubt with certainty. Each circumstance should be consistent
with guilt of the accused and should not be consistent with the innocence of
the accused. Finally, all circumstances taken together should forme a
complete chain of events unerringly pointing to the guilt of the appellant. In
this case, we have found that the circumstances described by the learned
Additional Sessions Judge, Bhawanipatna are not incriminating materials. In
other words, none of the circumstances relied upon by the
learned Additional Sessions Judge, Bhawanipatna can be said to
be incriminating to connect the appellant with the commission of the crime.
Moreover, the circumstances do not form a complete chain unerringly
pointing towards the guilt of the appellant.
07. The learned Additional Sessions Judge, Bhawanipatna erred in
shifting the burden to disprove the prosecution case on the appellant. It is
well settled principle of appreciation of evidence that the prosecution must
establish its case beyond all reasonable doubt unless the law provides
exceptions to the same. The exceptions are the plea of alibi, right of private
defence of life and property etc. Even in those cases, the burden cannot be
shifted to the defence. Rather, onus can be shifted to the defense. If the
prosecution fails to discharge its burden initially then the onus will never be
shifted to the defense and such shifting of burden as resorted to by the
learned Additional Sessions Judge, Bhawanipatna is erroneous and liable to
be interfered with.
08. In the result, this Court finds that the conviction of the appellant
under Section 302 of the Penal Code cannot be upheld by this Appellate
Court, as the prosecution has miserably proved its case beyond all
reasonable doubt.
09. Hence, the appeal is allowed. The conviction and sentence
to undergo imprisonment for life under Section 302 of the Penal
Code recorded by the learned Additional Sessions Judge,
Bhawanipatna against the appellant in the aforesaid case are hereby set
aside. The appellant stands acquitted of the charge under Section 302 of the
Penal Code.
10. The appellant- Pradeep Behera is on bail. He be set at liberty
forthwith by cancelling the bail bond executed by him.
The T.C.Rs. be returned back forthwith.
As the restrictions due to resurgence of Covid-19 are
continuing, learned counsel for the parties may utilize a printout of the order
available in the High Court's website, at par with certified copy, subject to
attestation by the concerned Advocate, in the manner prescribed vide
Court's Notice No.4587 dated 25th March, 2020 as modified by Court's
Notice No.4798 dated 15th April, 2021.
........................
(S. K. Mishra)
Judge
Pramath Patnaik, J. I agree.
............................
(Pramath Patnaik)
Judge
Orissa High Court, Cuttack,
Dated the 11th June, 2021/B. Jhankar
