Bhikari Behera @ Pakhun vs State Of Orissa
2021 Latest Caselaw 9134 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLA No.682 of 2018

(An application under Section 374 of the Code of Criminal Procedure
against the judgment of conviction and sentence dated 7th July, 2018 of
the learned Additional Sessions Judge, Patnagarh in Sessions Case
No.10 of 2016)


Bhikari Behera @ Pakhun                       ......          Appellant

                                   Versus

State of Orissa                               .......         Respondent


Advocate(s) appeared in this case:-

For Appellant             :        Mr. Anirudha Das and Associates
For Respondent            :        Mr. J. Katikia, Additional Government
                                   Advocate

            CORAM : THE CHIEF JUSTICE
                    JUSTICE B.P. ROUTRAY

                            JUDGMENT

st 1 September, 2021

B.P. Routray, J.

1. The judgment of conviction and sentence dated 7th July, 2018 of the learned Additional Sessions Judge, Patnagarh passed in Sessions Case No.10 of 2016 has been assailed in the present appeal.

2. The Appellant along with another co-accused faced trial being charged under Sections 493/417/302/201/120-B/34 of the Indian Penal

Code (in short „I.P.C.‟) and Section 3(2)(v) of SC and ST (PoA) Act, 1989. While the other co-accused has been acquitted, the present appellant is convicted for commission of offences under Sections 302, 201 of the I.P.C. along with Section 3(2)(v) of SC and ST (PoA) Act and sentenced for life imprisonment.

3. Prosecution story in brief is that, Appellant Bhikari Behera @ Pakhun and the deceased, a girl aged around 18 years were in love relationship. Both of them belong to same village-Bagiharan. On 21st August, 2015 night all the family members of deceased went to sleep after taking their dinner. On the next morning they found the deceased was missing in the house. They searched for her but could not find her. On 25th August, 2015 a telephone call was received by the sister of the deceased (P.W.4) from mobile No.7683897900 (as mentioned in the F.I.R.) that the deceased had fled away with the Appellant Pakhun and they are presently at Waltair and would return after 2/3 days. On the same day P.W.6, a co-villager saw a female dead body lying at Kandarabhatta Kendu-leaf godown in the nearby village Dudungdarha. He then informed other co-villagers and reported the matter in Khaparakhol Police Station. Pursuant to his report (Ext.6), Khaparakhol P.S. UD Case No.06 dated 25th August, 2015 was registered and P.W.15, the then Sub- Inspector of Police took up the enquiry. He held inquest over the dead body which was already putrefied and sent it for post mortem examination to VSS Medical College and Hospital, Burla. The post mortem examination was conducted at 11.15 am on 26th August, 2015. In course of enquiry P.W.15 getting information about missing of the deceased, contacted her father (P.W.1) and took him to Burla for identification of the dead body. On 27th August, 2015, P.W.1 identified

the dead body of the deceased and on the next day, i.e. on 28th August, 2015 lodged the written report (Ext.1) in Khaparakhol Police Station alleging that his daughter has been kidnapped, raped and killed. He also suspected involvement of the present Appellant in the occurrence.

4. Pursuant to lodging of F.I.R. under Ext.1, Khaparakhol P.S. Case No.68 dated 28th August, 2015 was registered for commission of offences under Sections 364/376-D/302/34 of I.P.C. along with Section 3(2)(v) of SC and ST (PoA) Act. Then P.W.16, the then Sub-Divisional Police Officer (S.D.P.O.) took up investigation on 28th August, 2015. In course of investigation several witnesses were examined and seizures were made. Though the co-accused was arrested in the meantime, but the Appellant could not be arrested till submission of charge-sheet which was submitted on 29th December, 2015 for the offences afore- mentioned. The Appellant surrendered in Court subsequently on 22 nd February, 2016.

5. Prosecution, in order to prove their case, have examined 20 witnesses and marked 19 exhibits. Besides, 19 material objects were also produced by the prosecution in course of trial.

6. The learned Additional Sessions Judge, upon conclusion of trial, convicted the Appellant for the offences under Sections 302/201 I.P.C. and under Section 3(2)(v) of SC and ST (PoA) Act as earlier mentioned.

7. Mr. Anirudha Das, learned counsel for the Appellant submits that without any iota of evidence against the present Appellant to implicate him in the alleged offences, the learned trial court has convicted the Appellant purely on surmises. He continued to submit that except the

statement of some witnesses to the extent of love affair between the appellant and deceased, no other evidence is there against the Appellant to sustain the conviction.

8. Per contra, Mr. Katikia, learned Additional Government Advocate argued in support of the conviction of the Appellant. He submitted that this Appellant remained absconding for about six months after of the occurrence and surrendered only on 22nd February, 2016. According to him, the Appellant has failed to explain his absence immediately after the occurrence. Further, the statements of the witnesses clearly speak about their relationship. Therefore, according to Mr. Katikia, the circumstances point unerringly to the guilt of the Appellant and his conviction is justified.

9. At the outset, it is to be mentioned that, the parties do not dispute the homicidal nature of death of the deceased. P.W.14, the Doctor who conducted post-mortem examination over the dead body has opined that, the death is due to ante-mortem burn injury involving 100% body surface area. The relevant portion of his statement in evidence is reproduced below:-

"4. The burn injuries are ante mortem in nature and could have been possible by dry heat. The cause of death to best of my knowledge due to suffocation as a result of ante mortem burn injury which involving all most 100% body surface area and the time of death is within 4 to 6 days at the time of my examination. Taking the dental status and other physical finding into consideration, the age of the deceased is more than 17 years and less than 25 years. Commission of any sexual offence could not be opined as because of advance stage of decomposition, however, the vaginal

swab are collected and handed over to the accompanying police to further examination in forensic science laboratory. The nail clipping and the blood soaked gudge pieces, scalp hair along with a teeth from lower jaw are collected and handed over to accompanying police in a properly sealed and leveled packet for further examination. This is my report marked Ext.5 where Ext.5/1 is my signature. I conducted the post mortem examination along with Dr. Dillip Kumar Sahu, Sr. Resident. This is his signature in which I am acquainted with marked as Ext.5/2. I handed over the burnt wearing apparels which were on the dead body of the deceased to the accompanying police. This is my signature in the request letter of the police marked Ext.6."

10. In his cross-examination he has admitted that neither any sign or symptom of pregnancy was found from the dead body nor any feature of poisoning was found from the stomach and other body parts and thus, he stands firm on his opinion regarding the cause of death. From detailed analysis of his opinion as well as the contents of the inquest report under Ext.2, we agree with the conclusion that the deceased died homicidal death due to ante mortem burn injury.

11. Admittedly there is no direct evidence against the Appellant. There are no eye witnesses. The circumstances, according to the prosecution, are that, there was a love affair between the Appellant and the deceased and there was physical relationship between them and that this was the motive for the Appellant to commit the murder.

12. The learned trial judge has convicted the Appellant with the finding that the deceased had insisted on marrying the Appellant having been impregnated by him; the Appellant tried to convince her to go in for an

abortion, which deceased refused. As such, the Appellant by taking her to the Kendu-leaf godown gave her a poisonous injection, and then to screen the evidence of murder set her on fire by pouring petrol over her body which resulted in her death.

13. None of the above findings is supported by the evidence before the trial Court. First of all it is found that the theory of pregnancy and poisoning has been completely ruled out by medical evidence. The opinion of P.W. 14 is so clear to this effect that did not require any discussion. Secondly, none of the witnesses including P.W. 4 & 5 have stated so nor do they have any direct knowledge about the so-called love affair. The only witness i.e. P.W.5, who has stated to have the direct knowledge about the relationship between the Appellant and the deceased, has admitted in her cross-examination that she has no personal knowledge about the love affair between the Appellant and the deceased. Said P.W.5 has also admitted that she had never asked about such relationship to the deceased nor she had disclosed it before anyone including her husband. So the finding of the trial court in this regard is not supported by the evidence.

14. There is also no evidence of „last seen‟. No witness has stated to have seen the Appellant either with the deceased at any relevant point of time or seen him committing any of the offences. The place of occurrence where the dead body of the deceased was found is a Kendu leaf godown situated around one and half kilometer away from the village of the deceased. The exact time of missing of deceased from her house has not been stated by any witness. It is not known how the deceased had gone to such a distant place and the reason for her

presence in the Kendu leaf godown at the time of occurrence remains unexplained. According to P.W.14, the deceased died 4 to 6 days prior to the post mortem examination, which means the time of death is probably in the night between 21st and 22nd August, 2015. The prosecution is completely silent about any such event happened in that night and till the dead body was noticed first by P.W. 6. When there is no material to suggest that the Appellant had in fact been seen with the deceased at any relevant point of time or at the spot or in the nearby area, no connection can be stretched to implicate him in the murder of the deceased.

15. The story of absence of the appellant from the village after the occurrence, as a relevant circumstance under the principles of res gestae, as argued by Mr. Katikia cannot be deployed here against the Appellant in absence of any other related circumstance. It would have been a relevant circumstance had there been other relevant circumstances established on record, like physical relationship between the Appellant and deceased or their subsequent meeting at that relevant place. Therefore this argument has no merit at all.

16. Law is well settled in the case of circumstantial evidence that, all such circumstances from which an inference of guilt is sought to be drawn must not only be cogently and firmly established but also form the chain so complete that there is no escape from the conclusion about the guilt of the accused within all probability excluding all other hypothesis of innocence.

17. In the case of Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 it has been observed as follows:

"xxxxxx. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. v. Hodge ((1838) 2 Lewin 227), where he said :-

"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

Further in the case of Sharad Birdhichand Sarda vrs. State of Maharashtra, AIR 1984 SC 1622 five golden principles on

appreciation of evidence in such cases have been discussed which are as follows:

i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned „must or should‟ and not „may be‟ established;

ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

iii) The circumstances should be of a conclusive nature and tendency;

iv) They should exclude every possible hypothesis except the one to be proved; and

v) There must be a chain of evidence so complete as not to leave any reasonable ground for the 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."

18. In the instant case, as seen from the materials brought by prosecution, not a single circumstance is found established against the appellant to point towards his guilt. The learned trial Judge without any evidence has erroneously concluded that the case of prosecution regarding involvement of the appellant has been proved beyond all reasonable doubt and the motive against him has also been proved. But the learned Additional Sessions Judge has not analyzed any such circumstantial evidence stated to have been proved against the appellant. The circumstance that the appellant was a quack by profession and used to visit to her house frequently cannot be considered as a relevant

circumstance against the appellant for commission of offence. P.W.16, the investigating officer has admitted in his evidence that he has not enquired about the mobile phone No.7683897900 as mentioned in the F.I.R. nor has he seized any mobile phone either from the appellant or the co-accused or from the informant or from anywhere. He has also admitted that no incriminating material could be seized by way of leading to discovery under section 27 of the Indian Evidence Act. He has also not procured any call detail from any-where in respect of those two mobile phones as mentioned in the F.I.R.

19. It is further seen that the motor cycle seized at the behest of the co- accused does not establish any link to the alleged occurrence nor it establish any connection of the same with the Appellant.

20. In the result it is held that the prosecution has failed to establish the charges against the accused (convict) and thus, the impugned judgment of conviction and sentence of the trial court is set aside. The appellant is acquitted of the charges and he be set at liberty forthwith, in case his detention is not warranted in any other case.

21. The appeal is allowed.

(B.P. Routray) Judge

(Dr. S. Muralidhar) Chief Justice

1st September, 2021 //M.K. Panda, Senior Steno//