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2021 DIGILAW 236 (ORI)

Pradeep Behera v. State of Orissa

2021-06-11

PRAMATH PATNAIK, S.K.MISHRA

body2021
JUDGMENT : S.K. MISHRA, J. 1. 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. 2. 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 Headquarters 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. 3. The prosecution in order to establish its case examined 14 witnesses. PW-1 (Suresh Chandra Joshi) happens to be the father of the deceased and informant of the case. No charge was framed under Section 304B of the Penal Code or under Section 4 of the D.P. Act. 3. The prosecution in order to establish its case examined 14 witnesses. PW-1 (Suresh Chandra Joshi) happens to be the father of the deceased and informant of the case. PW-2 (Dillip Kumar Behera) and PW-3 (Jayant Kumar Behera) are brothers of the appellant whereas PW-5 (Pradyumna Kumar Joshi) is the younger brother of the deceased. PW-13 (Pratika Behera @ Chintu) is the minor son of the deceased and the appellant. PW-4 (Aimati Gahir) is a maidservant in the house of the appellant and the deceased. PW-6 (Dillip Kumar Budhia), PW-7 (Bhaskar Puta), PW-8 (Ramesh Prasad Sahu) and PW-12 (Prasanta Kumar Pradhan), a Constable of Bhawanipatna Town Police Station, Bhawanipatna, are formal witnesses being witnessed to the seizures, inquest etc. PW-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. PW-10 (Dr. Debasis Pattnaik) is the Assistant Surgeon who on examination of the deceased declared her dead. PW-11 (Mohanlal Chouhan), the A.S.I. of Police and PW-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 PW-9 as he was acquainted with the signature and hand-writing of Dr. P.P. Swain who had conducted postmortem examination of the dead body of the deceased. 4. 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. 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 (PW-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 PW-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) 5. 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. 6. 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 form 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. Finally, all circumstances taken together should form 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. 7. 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. 8. 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. 9. 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. 11. The T.C.R. be returned back forthwith. 12. 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. 11. The T.C.R. be returned back forthwith. 12. 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 Courts website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Courts Notice No. 4587 dated 25th March, 2020 as modified by Court’s Notice No. 4798 dated 15th April, 2021.