If the Prosecution fails to discharge its burden initially then the onus will not be shifted to the Defense: Orissa High Court

HIGH COURT OF ORISSA: CUTTACK. CRLA No.2203 From the judgment of conviction and order of sentence dated 18.07.2003 passed by Shri Sukumar Sahu learned Additional Sessions Judge Bhawanipatna in Sessions Case No.2 4 of 2003 of the court of the learned S.D.J.M. Bhawanipatna). Pradeep Behera Versus State of Orissa . Respondent. For Appellant For Respondent M s. Milan Kanungo Sr. Adv. D. Pradhan S. Nanda Y. Mohanty B. Kanungo and Y.S.P. Bagh. Mrs. Saswata Patnaik Additional Government Advocate. P R E S E N T : SHRI JUSTICE S. K. MISHRA SHRI JUSTICE PRAMATH PATNAIK Date of Hearing 11.11.2020 & 11.06.2021 and Date of Judgment 11.06.2021 S. K. MISHRA J. 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 03of the court of the learned S.D.J.M. Bhawanipatna) vide judgment of conviction and order of sentence dated 18.07.2003. 02. 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 Headquaters 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 happens to be the father of the deceased and informant of the case. P.W.2and P.W.3 Jayant Kumar Behera) are brothers of the appellant whereas P.W.5 Pradyumna Kumar Joshi) is the younger brother of the deceased. P.W.13 Pratika Behera @ Chintu) is the minor son of the deceased and the appellant. P.W.4 is a maidservant in the house of the appellant and the deceased. P.W.6 P.W.7 P.W.8and P.W.12a Constable of Bhawanipatna Town Police Station Bhawanipatna are formal witnesses being witnessed to the seizures inquest etc. P.W.9 treated the deceased as an injured and submitted report to the police station on 30.07.2002 at 5.00 P.M. P.W.10is the Assistant Surgeon who on examination of the deceased P.W.11 the A.S.I. of 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 P.W.9 as he was acquainted with the signature and hand writing of Dr. P.P. Swain who had conducted post mortem examination of the dead body of the deceased. 04. 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 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 P.W.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 P.W.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. the submission of learned Sri S.K. Moreover 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. learned Additional Public Prosecutor Sri 7. B.K. Patra appearing for the state was express thatfairly concedes to the submissions of the learned defence counsel Sri. S.K. Panda.” Judge ....... ... Judge 

Summary: The common law maxim, “ei incumbit probatio qui dicit, non qui negat” (the burden of proof is on the one who declares, not on one who denies) explains that Burden of proof lies on the party asserting it and never on the party denying it. Division bench of Justice S. K. Mishra and Justice Pramath Patnaik in the case of Pradeep Behera V. State of Orissa [CRLA No.228 of 2003 ] decided that  the prosecution must establish its case beyond all reasonable doubt unless there is an exception case of private defence, alibi etc. However, under exceptional circumstances also only the onus shifts to the defense and not the burden.   In the instant case, the wife of the Appellant died after succumbing to burn injuries, the investigating agency however, failed to record the dying declaration of the deceased. 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 3 Prohibition Act, 1961. After the investigation was completed by the Investigating officer, a Charge-sheet was filed and Appellant was framed with charges under Sections 498A and 302 of the Penal Code. No charge was, however, framed under Section 304B of the Penal Code or under Section 4 of the D.P. Act. On basis of which, the conviction and sentence to undergo imprisonment for life under Section 302 of the Penal Code was granted by the Sessions Judge in Sessions Case No.2/4 of 2003 Bhawanipatna against the appellant. Challenging the decision taken by the Bhawanipatna Session Court, the accused filed a CRLA, a Criminal Appeal against Judgement. The Appellant in the instant case asserted that out of the 14 witness examined by the prosecution, the prosecution witnesses have not supported the case and except for official witnesses, all other witnesses have been declared hostile by the prosecution. It was also found that the prosecution in the Session case failed to provide any incriminating connection to the guilt of the appellant with the commission of the crime. Therefore, relying upon the arguments, The Court opined that, “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.”