Supreme Court of India
The State Of Odisha vs Banabihari Mohapatra on 12 February, 2021Author: Hon’Ble Ms. Banerjee
Bench: Hon’Ble Ms. Banerjee, Hemant Gupta
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave Petition (Crl.) No.1156/2021
The State of Odisha …Petitioner (s)
Banabihari Mohapatra and Anr. …Respondent(s)
Indira Banerjee, J.
This Special Leave Petition filed by the State of Odisha is against
a final judgment and order dated 2nd November, 2020 passed by the
High Court of Orissa at Cuttack dismissing an application for leave to
appeal being CRLLP No.14 of 2020 filed by the Petitioner State, against a
judgment dated 14th January, 2020 passed by the Sessions Judge,
Bhadrak in S.T. Case No.182/392 of 2014, acquitting the Respondents
from charges under Sections 302/201 read with Section 34 of the Indian
Penal Code (IPC).
2. Learned Counsel appearing on behalf of the Petitioner State
Signature Not Verified
Digitally signed by
forcefully contended that the High Court committed gross error in
dismissing the application for leave to appeal filed by the Petitioner
State on the ground of delay of 41 days, even though, there were
serious charges against the Accused Respondents, including charges of
murder under Section 302 of the IPC.
3. It is true that the appeal has, by the impugned judgment and
order dated 2nd November 2020, been dismissed on the ground of delay
of only 41 days in filing the CRLLP.
4. In a criminal case involving the serious offence of murder, the
Courts do not ordinarily dismiss an appeal against a judgment and order
of the Trial Court, whether of conviction or of acquittal, on the sole
ground of some delay. This is to prevent miscarriage of justice.
5. However, in this case the application of the Petitioner State, for
leave to appeal against the judgment and order of acquittal of the
Respondent Accused, has been rejected on the ground of delay, but
after considering the merits of application for leave to appeal.
6. We have considered the contentions of the State of Odisha being
the petitioner before us. As per an FIR lodged with the police by one
Gitanjali Tadu, hereinafter referred to as the “Complainant”, her husband
Bijay Kumar Tadu, hereinafter referred to as the “deceased”, had been
working in the Home Guard, Chandabali and deputed at Chandabali
7. According to the Complainant, the deceased used to move
around with the first accused, Banabihari Mohapatra, who had an
electric sales and repairing shop styled “Raja Electricals” at the Ferry
Ghat area near the Chandabali bus stand.
8. In the FIR, it is alleged that the first accused came to the
residence of the deceased at around 7.30 a.m. on 23 rd June, 2014 and
told the Complainant that the deceased had been lying motionless and
still, not responding to calls. Later his younger son Luja alias Smruti
Ranjan Mohapatra being the second Respondent also came and
informed the complainant that the deceased was lying motionless.
9. On hearing this, the Complainant along with her family members
went to the Ferry Ghat near the Chandabali Bus Stand and found her
husband lying dead inside a room which was locked, with a swollen belly
and a deep burn injury on his right foot which was apparently caused by
electric shock. The body of the deceased appeared black and blood was
oozing out from the mouth and nostril of the deceased.
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 his fingers,
and had been carrying Rs.800 for purchase of a new pair of pants and
shirt and Rs.5,000/- for purchase of articles for a marriage.
11. On making enquiries the complainant learnt that the deceased
had not visited the house of the relative on that day. The complainant
has alleged that the Accused No.1 Banabihari Mohapatra, his son Luja
alias Smruti Ranjan Mohapatra, being the Accused No.2, and other
accomplices committed murder of her husband by applying electric
shock to him after administering some poisonous substances to him.
12. The Sessions Judge Bhadrak framed charges against the Accused
Respondents Banabihari Mohapatra and Luja @ Smruti Ranjan
Mohapatra alleging that, together they had intentionally caused the
death of the deceased, thereby committing murder and had caused
disappearance of evidence and thus been guilty of offences under
Sections 302/201 read with Section 34 of the IPC.
13. We have carefully gone through the judgment of the Sessions
Judge, Bhadrak, holding that the prosecution had failed to prove the
charges against the Accused Respondents or either of them under
Section 302, or Section 201 read with Section 34 of the IPC, and
acquitting them under Section 235(1) of the Cr.P.C.
14. The prosecution appears to have examined 9 witnesses. There
are no eye witnesses to the incident. The deceased had apparently died
in a room held by the Accused Respondent No.1. The Accused
Respondents did not abscond. The Accused Respondents themselves
informed the complainant that the deceased was lying still and
motionless, not responding to calls.
15. The post mortem Report of the deceased reveals that the cause
of death was electric shock, suffered by the deceased within 24 hours
from the time of examination. On post mortem examination, the Doctor
found food particles including meat in the stomach of the deceased,
and also detected smell of alcohol. The post mortem doctor opined that
the deceased was intoxicated with alcohol and the death was either
accidental, or homicidal, but not suicidal. There is no conclusive
evidence that the death was homicidal.
16. The complaint lodged by the complainant is apparently based on
suspicion. Since the Accused Respondents had informed the
complainant that the deceased was lying still and motionless, not
responding to calls and the body of the deceased was found at the
premises of the Accused Respondent No.1, the complainant has
assumed that the Accused Respondents killed the deceased.
17. In evidence, the complainant said that the Accused Respondent
No.1, Banabihari, had taken a loan of Rs.20,000/- from the deceased
which he had not repaid even though the deceased had asked him to
repay the amount. Significantly, there is no whisper in the FIR, of any
loan taken by the Accused Respondent No.1 from the deceased. The
reference to the alleged loan appears to be an afterthought, in an
attempt to insinuate a motive for killing the deceased.
18. The mere fact that the deceased was lying dead at a room held
by the the Accused Respondent No.1 and that the Accused
Respondents had informed the complainant that the deceased had been
lying motionless and still and not responding to shouts and calls, does
not establish that the Accused Respondents murdered the deceased. At
the cost of repetition it is reiterated that the post mortem report
suggests that the death could have been accidental.
19. We have perused the evidence of the nine Prosecution Witnesses,
namely, the first Prosecution Witness Dhanjaya Tadu, younger brother of
the deceased, the second Prosecution Witness Gitanjali Tadu, wife of the
deceased, the third Prosecution Witness, Ajay Sahoo, a Shop Keeper at
the locality where dead body of the deceased was found, the fourth
Prosecution Witness, Smt. Bijayalaxmi Tadu, sister of the deceased, the
fifth Prosecution Witness, Bailochan Bej, a Barber by profession who
knew the complainant and the deceased as also the accused persons
who resided in the Chandabali Police Station area, the sixth Prosecution
Witness, Manmohan Sutar, an auto driver, the seventh Prosecution
Witness, Aswini Kumar Nayak, a cultivator residing at Nayahat in the
Chandabali Police Station area of Bhadrak, the 8 th Prosecution Witness,
Dr. Bhisma Parida, being the Doctor who conducted the autopsy/ post
mortem examination of the deceased and the ninth Prosecution Witness
Smt. Kumari Behera, Sub Inspector of Police, who was the Investigating
20. 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 Nayak
were declared hostile by the Prosecution.
21. The third Prosecution Witness said that he had only seen the police
shifting the dead body of the deceased and knew nothing more about
the case. Nothing has emerged from his cross-examination by the
Public Prosecutor. In his cross-examination by the defence, he said there
was no electric connection in the house from which the body of the
deceased was brought out. He even said that the Accused Respondents
did not own any shop dealing with electric appliances. No credence can
be given to this witness.
22. The fifth Prosecution Witness, Bailochan Bej, denied knowledge of
the case. He said that the police had not examined him, nor recorded
any statement made by him. In cross-examination by the prosecution,
he only said that he had a saloon at Chandabali Police Station, Bhadrak.
He categorically denied having made the statements attributed to him
by the police.
23. The seventh Prosecution Witness, Durga Charan Nayak only said
that he had seen the body of the deceased in the rented place near the
Chandabali bus stand with bleeding injury on his right leg and blood
oozing from his mouth and nostrils. He said he did not know how the
deceased suffered the injury or died. Nothing significant has emerged
from his cross-examination by the Public Prosecutor.
24. The sixth Prosecution Witness, Manmohan Sutar deposed that he
knew the informant, the deceased as also the Accused Respondents. In
a nutshell, he only confirmed that the dead body was in the shop of the
Accused Respondents in Home Guard uniform. Inquest of the body was
conducted in his presence. He identified his signature in the Inquest
Report. He also said he had noticed a bleeding injury in the right foot of
the deceased and blood oozing from the mouth and nostrils.
25. All the three witnesses related to the deceased, that is the
second Prosecution Witness, being the wife of the deceased, the first
Prosecution Witness, being the younger brother of the deceased and the
fourth Prosecution Witness, being the sister of the deceased have more
or less reiterated what has been stated in the FIR with embellishments.
There are, however, apparent inconsistencies, inaccuracies and inherent
improbabilities in the statements of these witnesses.
26. These three witnesses deposed that they suspected that the
accused Respondents had killed the deceased as the deceased was
asking the Accused Respondents to repay Rs.20,000/- which the
deceased had advanced to the Accused Respondents by way of loan.
However, as observed above, there is no whisper of the alleged loan in
the FIR lodged by the complainant wife being the second Prosecution
27. That apart, the first and fourth Prosecution Witnesses have
admitted in cross-examination that they did not have first hand
knowledge of the loan alleged to be advanced by the deceased to the
Accused Respondent No.1. The first Prosecution Witness said that the
complainant (PW2) had told him that the Accused Respondent No.1 had
not repaid loan of Rs.20,000/- to the deceased. The fourth Respondent
said she had heard about the loan from her deceased brother. Though
she said that the loan was given to the Accused Respondent No.1 at the
time of his daughter’s marriage she could not say how long ago the loan
was given. She could not even tell the approximate date or year of
marriage of the Accused Respondent No.1’s daughter.
28. From the evidence of the first and the second Prosecution
Witnesses it transpires that the deceased had left his house at around
10.00 a.m. on 22nd June 2014, to go to his Aunt’s house in connection
with his Aunt’s daughter’s marriage. He was wearing a gold chain and
two gold rings and carried Rs.800/- with him for buying a pair of trousers
and 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, difficult to understand why the deceased should have been
wearing his home guard uniform if he were going to visit his Aunt in
connection with the marriage of his Aunt’s daughter. There is evidence
to show that the deceased was found in his home guard uniform. The
relevance of the plan of the deceased to go to his Aunt’s house or his
plan to buy clothes etc. is also not clear. This is in no way linked to the
incident of death of the deceased. Prosecution has failed to show a link
between the proposed visit of the deceased to his Aunt’s house with the
guilt, if any, of the Accused Respondents.
29. The evidence of the first Prosecution Witness Dhanjaya Tadu,
brother of the deceased, that he had found the motor cycle of the
deceased in front of the shop of the accused persons on the evening of
the 22nd June 2014, is difficult to accept. He said he had asked the
second accused about whereabouts of his brother to which the second
accused had expressed ignorance, but on the next day, the second
Accused Respondent and his father informed them that his brother was
lying senseless. It seems rather unnatural that this witness, who was
the brother of the deceased, should have chosen not to make any
inquiry either in the police station or in the neighbourhood, even after
seeing the motor cycle of the deceased in front of the shop, and after
being told his brother was not in the shop. No attempt was made to look
for the deceased even though he did not return home all night.
30. The eighth Prosecution Witness, Dr. Bhisma Parida, who had at
the time of death of the deceased been posted as Medical Officer at CHC
Chandabali and had conducted the autopsy/post mortem examination of
the deceased at around 1.00 p.m. on 24 th June 2014, deposed that the
deceased died due to electrical injury, suffered within 24 hours of the
autopsy. The stomach of the deceased was full of food particles
including meat and there was smell of alcohol. The deceased had been
intoxicated with alcohol. The Medical Officer found electrical wounds in
the leg which were sufficient to cause death. He opined that the injuries
sustained by the deceased might have been due to contact with live
electric wire. He opined that the contact was prolonged. The injuries
were ante mortem. This witness was of the opinion that the death may
have been accidental or homicidal, but not suicidal.
31. Nothing significant has emerged from the oral evidence of the
ninth Prosecution Witness, Smt. Kumari Behera, the Investigating Officer,
to establish the guilt of the Accused Respondents. She only stated that
the fifth Prosecution Witness had in course of examination stated before
her that the first Accused Respondent and the deceased used one of the
quarters where they regularly took tiffin and they were both present
there on the date of the incident in Court. The fifth Prosecution Witness,
however, denied having made any such statement to the Police and
remained unshaken in cross-examination by the Public Prosecutor. He
only admitted that he had a saloon in the area, but denied knowing the
deceased, the Accused Respondents or the informant. The fifth
Prosecution Witness said that the Police had neither examined him, nor
recorded his statement.
32. In her deposition, the Investigating Officer also said that some
local persons had stated that the first Accused Respondent, Banabhihari
had, out of animosity, killed the deceased by applying electric current.
The oral evidence of the Investigating Officer in this regard is totally
vague and devoid of particulars. The Investigating Officer (PW-9) had
neither named the local persons nor enquired into the source of their
information if any. The local persons have not been examined as
33. The Prosecution miserably failed to establish the guilt of the
Accused Respondents. The Trial Court rightly acquitted the Accused
Respondents. 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 always
been on an altogether different pedestal from an appeal against
conviction. In an appeal against acquittal, where the presumption of
innocence in favour of the accused is reinforced, the appellate court
would interfere with the order of acquittal only when there is perversity.
In this case, it cannot be said that the reasons given by the High Court
to reverse the conviction of the accused are flimsy, untenable or
bordering on perverse appreciation of evidence.
35. Before a case against an accused can be said to be fully
established on circumstantial evidence, the circumstances from which
the conclusion of guilt is to be drawn must fully be established and the
facts so established should be consistent only with the hypothesis of
guilt of the accused. There has to be a chain of evidence so complete,
as not to leave any reasonable doubt for any 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.
36. In Shanti Devi v. State of Rajasthan reported in (2012) 12
SCC 158, this Court held that the principles for conviction of the
accused based on circumstantial evidence are:
“10.1. The circumstances from which an inference of
guilt is sought to be proved must be cogently or firmly
10.2. The circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
10.3. The circumstances taken cumulatively must form
a chain so complete that there is no escape from the
conclusion that within all human probability, the crime
was committed by the accused and none else.
10.4. The circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should
be inconsistent with his innocence.”
37. Keeping the above test in mind, we have no iota of doubt that the
Trial Court rightly acquitted the Accused Respondents. There is a
strong possibility that the accused, who was as per the opinion of the
doctor who performed the autopsy, intoxicated with alcohol, might
have accidentally touched a live electrical wire, may be while he was
asleep. The impugned judgment of the High Court dismissing the
appeal on the ground of delay does not call for interference under
Article 136 of the Constitution of India.
38. It is well settled by a plethora of judicial pronouncement of this
Court that suspicion, however strong cannot take the place of proof. An
accused is presumed to be innocent unless proved guilty beyond
reasonable doubt. This proposition has been reiterated in Sujit Biswas
v. State of Assam reported in AIR 2013 SC 3817.
39. In Kali Ram v. State of Himachal Pradesh reported in AIR
1973 SC 2773, this Court observed:-
“Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case one pointing
to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted.
This principle has a special relevance in cases where in the
guilt of the accused is sought is to be established by
40. For the reasons discussed above, we find no ground to interfere
with the impugned judgment and order of the High Court under Article
136 of the Constitution of India. Consequently, the Special Leave
Petition is dismissed. Pending application stands disposed of.
February 12, 2021