The State of Odisha vs Banabihari Mohapatra and Anr.

Appeal against acquittal: 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 were flimsy, untenable or bordering on perverse appreciation of evidence.

Criminal law: Case based on circumstantial evidence – 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. Dismissing the special leave petition, the Court HELD: 1.1 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. [Para 14][618-E-F]

1.2 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. [Para 15][618-F-H]

1.3 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. [Para 16][619-A-B]

1.4 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. [Para 17][619-B-C]

1.5 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. The post mortem report suggests that the death could have been accidental. [Para 18] [619-C-E]

2.1 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. 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, there is no whisper of the alleged loan in the FIR lodged by the complainant wife being the second Prosecution Witness. [Paras 25, 26] [620-G-H; 621-A-B]

2.2 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. Nothing significant has emerged from the oral evidence of the Investigating Officer, to establish the guilt of the Accused Respondents. In her deposition, the Investigating Officer also said that some local persons had stated that the first Accused Respondent, 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 had neither named the local persons nor enquired into the source of their information if any. The local persons have not been examined as witnesses. The Prosecution miserably failed to establish the guilt of the Accused Respondents. The Trial Court rightly acquitted the Accused Respondents. [Paras 30, 32, 33][622-D-E; 623-A-C]

3. 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. [Para 34][623-C-E]

4. 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. [Para 35][623-E-F] Sadhu Saran Singh v. State of U.P. 2016 (4) SCC 357 : [2016] 1 SCR 913; Shanti Devi v. State of Rajasthan (2012) 12 SCC 158 : [2012] 9 SCR 226; Sujit Biswas v. State of Assam AIR 2013 SC 3817 : [2013] 3 SCR 830; Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773 : [1974] 1 SCR 722 –relied on.