Radhua @ Radhakanta Pradhan vs State Of Odisha
2021 Latest Caselaw 10708 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK
                                       CRLA No.347 of 2020

                 Radhua @ Radhakanta Pradhan               ....          Appellant
                                                    Mr. Devashis Panda, Advocate
                                              -versus-

                 State of Odisha                            ....      Respondent
                                                            Mr. G.N.Rout, A.S.C

                            CORAM:
                            JUSTICE S.K. MISHRA
                            JUSTICE SAVITRI RATHO
                                             ORDER

07.10.2021 Order No. I.A. No.706 of 2020

1. This matter is taken up by hybrid mode.

2. This is an application filed under Section 389 of the Code by the sole Appellant/ Petitioner- Radha @ Radhakanta Pradhan for grant of bail upon appeal and suspension of sentence.

3. In this case, the Appellant/ Petitioner has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- in default to undergo further R.I. for six months for commission of offence punishable under Section 302 of the Penal Code and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- in default to undergo further R.I. for two months for commission of offence punishable under Section 201 of the Penal Code as per the judgment of conviction dated 13.03.2020 and order of sentence dated 16.03.2020 passed by the learned 1st Additional Sessions Judge, Cuttack in Sessions Trial Case No.157 of 2015/ (Trial No.19 of 2017).

4. By virtue of the aforesaid impugned judgment the learned 1st Additional Sessions Judge, Cuttack has acquitted the Appellant/ Petitioner for commission of offences punishable under Sections 498A/ 304B/406 of the Penal Code read with Section 4 of the D.P. Act.

5. The reasoning resorted to by the learned 1st Additional Sessions Judge, Cuttack in coming to the conclusion of the guilt of the Appellant/ Petitioner, with respect to offence under Section 302 of the Penal Code, appears at paragraph 20 of the impugned judgment. A careful reading of the impugned judgment reveals that though there is no direct evidence, the learned 1st Additional Sessions Judge, Cuttack has come to the conclusion that the prosecution has successfully proved its case beyond all reasonable doubts basing upon the circumstantial evidences like residence of the Appellant and the deceased in one house; the quarrel between them; recovery of the dead body of the deceased in the septic tank of that house; the Doctor's opinion on post-mortem examination and failure of the Appellant to explain the reason of death of the deceased under Section 106 of the Evidence Act.

6. Having considered all the materials available on record, we are of the opinion that on final analysis of evidence at the time of disposal of the appeal, there is statable probability of the appeal being allowed. Moreover, the offence under Section 201 of the Penal Code, which is also dependent upon the circumstantial evidence, is a bailable offence. In addition, the Appellant/ Petitioner is a permanent resident of Gamhadia, Bajrakabati Canal Road, P.S.- Mangalabag, District- Cuttack. So, there is no reasonable apprehension of his absconding from the process of justice. The Appellant/ Petitioner is in custody

since November, 2014. The appeal is not yet matured for final hearing as the paper books have not been prepared.

7. Keeping in view the aforesaid consideration, we are inclined to suspend the sentence and grant bail upon appeal to the Appellant/ Petitioner. Accordingly, the prayer for bail upon appeal of the Appellant/ Petitioner- Radha @ Radhakanta Pradhan is allowed. Sentence of imprisonment for life is suspended till further orders.

8. Let the Appellant/ Petitioner- Radha @ Radhakanta Pradhan be released on bail on such suitable terms and conditions as deemed just and proper by the learned 1st Additional Sessions Judge, Cuttack in the aforesaid case.

BJ 9. The I.A. is disposed of accordingly.

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(S. K. Mishra) Judge Order No.

09. Per S.Ratho, J. 10. The prosecution case in brief is that since 23.11.2014, Sabita Patra the deceased who is the wife of the appellant-petitioner and younger sister of the informant-P.W.4 was found missing from her marital abode in Village-Gamhadia and there was no reply from her phone when the informant called her on the morning of 24.11.2014. On being asked, the appellant-petitioner feigned ignorance, stating that she was missing since 23.11.2014 and had gone to her paternal house in Jobra. The appellant used to assault the deceased due to marital discord and property related issues for which she had gone to her paternal house on earlier occasion. She had been sent by her family members to her marital abode along with the accused after resolving their dispute. But the appellant/petitioner continued to torture her in

connection with demand for share in the sale proceeds of her paternal property. After registration of a missing case, advertisement was published in newspapers .On 01.12.2014, the dead body was recovered from the night soil tank (septic tank) of the house of the appellant/petitioner, inquest was held and the body was sent to SCB Medical College & Hospital, Cuttack for postmortem examination and P.W.13 conducted the postmortem examination.

11. The learned counsel for the appellant/petitioner submits that the case is based on circumstantial evidence and the circumstances in this case are not complete as far as the offence under Section 302 IPC is concerned .He further submits that the offence under Section 304-B of IPC is not also made out as there is no material on record that soon before the unnatural death of the deceased, which allegedly took place within seven years of her marriage with the appellant/petitioner, she was subjected to torture because of a demand of dowry. He also submits that the prosecution has withheld vital witness. He further submits that as the appellant stands a fair chance of success in the appeal and he is in custody for more than six years, but the chances of early hearing of the appeal are bleak, he should be released on bail. He has relied on the decisions reported in (1977) 4 SCC 291 : Kashmira Singh vs State , (2004) 1 SCC 355 : Akhtari Bi vs. State, (1990) SCC Online Ori 313 :Leti @ Jayadeb vs State and (2005) 7 SCC 387 :Surinder @ Shingara vs. State.

12. Mr. G.N.Rout, learned Addl. Standing Counsel submits that the petitioner is the husband and only he and the deceased were living together in the house and there was a quarrel between them just before she went missing and prosecution has proved through P.Ws.1, 2, 4 and 11, that he was torturing and assaulting the deceased soon before the occurrence asking her to bring money. He also states that the appellant has not enquired or reported about her disappearance

and body of the deceased was found in the septic tank behind his house with a number of antemortem injuries and cause of death has been opined to be asphyxia due to compression of neck . The appellant having been rightly convicted and the grounds raised by the learned counsel can only be considered during hearing of the appeal .

13. At the stage of bail, it is not necessary to make a detailed analysis of the evidence on record which should be done at the time of hearing of the appeal . The evidence of the relations of the deceased, namely, P.W.3,P.W.4, P.W.7 and P.W.11 and independent witnesses P.W.1 and P.W.2 who are her immediate neighbours prima facie indicates that the deceased and appellant were living alone in the house and the appellant was insisting that she bring her share from the sale proceeds of her paternal property and harassing and assaulting her for not doing so , and P.Ws.1 and 2 have heard the appellant and deceased quarrelling one day before she went missing and when asked by her relatives about her whereabouts , the deceased has told them that she had gone to their house which is an afterthought . The dead body of the deceased has been detected in the septic tank behind the house of the appellant- petitioner on 01.12.2014 with a number of antemortem injuries .

P.W 13 the doctor who conducted post mortem examination has detected a number of external injuries on the body of the deceased

- including the scalp and fracture of second, third, fourth and fifth ribs. He has opined as follows:

(i) That the internal injuries as above are ante-mortem in nature and combinedly fatal in ordinary course of nature. The injury to the neck is due to compression of neck and individually fatal to cause death. The injury to the scalp, anterior chest wall and ribs could have been caused by hard and blunt force impact.

(ii) The death was due to asphyxia as a result of compression of neck.

(iii)Time since death was within about 7 to 10 days of the time of conducting autopsy.

14. In view of the decision of the Hon'ble Supreme Court in the case of Jayantilal Verma v. State of M.P. (Now Chhatisgarh) reported in 2020 SCC online SC 944 where the decision reported in Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681, has been relied on, I am of the view that since the appellant and deceased were staying alone in the house , and he having been "last seen" with the deceased one day before she went missing , and he not having enquired or reported about her whereabouts , her body being found in the septic tank behind the appellant's house with ante mortem injuries and the appellant not given a plausible explanation as to her whereabouts or injuries detected on her in his statement recorded under Sec- 313 CrL.P.C , a prima case is made out against the appellant which disentitles him to bail . The grounds urged by Mr Panda learned counsel regarding reliability of the witnesses and withholding of vital witnesses and missing links in the chain of circumstances can only be adjudged at the time of final hearing of the appeal. .

15. I have gone through the order passed by my esteemed brother, Mr. S.K.Mishra, J. But in view of the nature of evidence available against the appellant, I do not think that this is fit case to suspend the sentence and release the appellant on bail during pendency of the appeal at this stage. The prayer to suspend the sentence and release the appellant-petitioner on bail is therefore rejected.

16. However registry is directed to prepare the paper books so that the appeal can be heard at an early date.

( Savitri Ratho) Judge Bichi

I.A. No.706 of 2020 (arising out of CRLA No.347 of 2020) Order No.

09.

17. Since there is divergence of opinion between two Judges in this case, this matter may be placed before the Hon'ble Chief Justice.

18. Deputy Registrar (Judicial) is directed to take appropriate instructions from the Hon'ble Chief Justice and list this matter as early as possible.

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(S. K. Mishra) Judge

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(Savitri Ratho) Judge BJ