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IN THE HIGH COURT OF ORISSA, CUTTACK
Dr. S. Muralidhar, B.P. Routray, JJ.
Bhikari Behera @ Pakhun - Appellant
Versus
State Of Orissa - Respondent
CRLA No. 682 of 2018
Decided On : 01-09-2021
I.P.C. - Conviction under Sections 302, 201 and SC and ST (PoA) Act - [493, 417, 302, 201, 120-B, 34, 3(2)(v)] - The judgment discusses the conviction of the appellant under Sections 302 and 201 of the Indian Penal Code and Section 3(2)(v) of SC and ST (PoA) Act. The court analyzes the evidence presented by the prosecution and the arguments of both parties, ultimately finding that the prosecution failed to establish the charges against the accused. The judgment highlights the lack of direct evidence, absence of relevant circumstances, and the erroneous conclusions drawn by the trial judge.
Fact of the Case:
The appellant was convicted for the murder of a girl with whom he was allegedly in a love relationship. The prosecution alleged that the appellant killed the girl due to a failed abortion attempt and poured petrol over her body to set her on fire. The appellant was convicted based on circumstantial evidence.
Finding of the Court:
The court found that the prosecution failed to establish the charges against the accused. It highlighted the lack of direct evidence, absence of relevant circumstances, and erroneous conclusions drawn by the trial judge.
Issues: The main issue was the sufficiency of evidence to establish the guilt of the appellant. The court analyzed the circumstantial evidence presented by the prosecution and the arguments of both parties.
Ratio Decidendi: The court emphasized the need for cogent and firmly established circumstances to draw an inference of guilt in cases based on circumstantial evidence. It highlighted the principles of circumstantial evidence and the requirement to exclude every hypothesis except the guilt of the accused.
Final Decision: The judgment of conviction and sentence of the trial court was set aside, and the appellant was acquitted of the charges.
JUDGMENT
B.P. Routray, J. - 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 22nd 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, M
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