Orissa High Court: In a set of two criminal appeals arising out of judgment of the Trial Court convicting the convicts under Sections 302, 201 read with Section 511, and Section 120-B of the Penal Code, 1860 (‘IPC’), the division bench of SK Sahoo* and Chittaranjan Dash, JJ., acquitted two of the convicts and upheld the conviction of the third one, and reiterated that suspicion howsoever strong, cannot be a substitute for proof of guilt of an accused beyond reasonable doubt.
Background:
The case revolves around the murder of the deceased, allegedly conspired by his wife and two co-convicts, as established through circumstantial evidence. The deceased, who lived with his wife and three children, had a strained relationship with his wife due to her intimacy with convict 2. On 12-12-2007, after the deceased left for work, co-convicts visited his house, and convict 2 later sent the deceased’s son to fetch kerosene. In the evening, convict 3 persuaded the deceased, with the wife’s encouragement, to accompany him on the deceased’s motorcycle. Thereafter, convict 3 returned alone, claiming the deceased had gone to a temple. Convict 2 stayed at the deceased’s house, thereafter, threatening the children to stay silent. During the investigation, convict 2 confessed to assaulting the deceased with a bamboo stick, which was recovered later. The Trial Court concluded that the wife conspired with the co-convicts to murder the deceased and convicted them based on circumstantial evidence, including the “last seen” theory and non-explanation of critical events by the convict. Thus, they were sentenced to life imprisonment under Sections 302, 201, 511, and 120-B of the IPC.
Analysis and Conclusion:
The Court delved into every single circumstance noted by the Trial Court and held that the prosecution has established all of them.
The Court then went on to discuss the charge against each convict which is as follows:
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Wife of the deceased, solely been convicted under section 120-B of IPC for entering into criminal conspiracy with convict 2:
The Court noted that there is no discussion in the impugned judgment referring to the evidence on record as to how it found the wife guilty under section 120-B of IPC, with whom she conspired and what are the materials provided by the prosecution to establish the charge. Additionally, no such charge was framed against convict 2.
The Court referred to the cases of Ram Sharan Chaturvedi v. State of M.P., (2022) 16 SCC 166, State of Kerala v. P. Sugathan, (2000) 8 SCC 203 and Ram Narayan Popli v. CBI, (2003) 3 SCC 641, wherein it was held that for the offence of criminal conspiracy some kind of ‘physical manifestation’ of agreement is sine qua non and the evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. The Court held that in the present case, the prosecution has utterly failed to conclusively prove transmission of thoughts between the wife and other accused persons, let alone putting forward any acceptable and rigid evidence regarding physical manifestation of agreement. Therefore, when the basic ingredient of the offence of criminal conspiracy, i.e. agreement between at least two persons, is not proved, no strength remains in the prosecution argument that the wife is liable for criminal conspiracy.
The Court further noted that the evidence of three children and wife of the deceased is totally silent to fulfil the ingredients of offence of criminal conspiracy. The Court noted that in absence of any other clinching evidence, only basing on these suspicious conducts of the convict, it cannot be held to be sufficient to convict the wife for offence of criminal conspiracy. Accordingly, she was acquitted.
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Convict 2, convicted under Section 201 read with Section 511 and Section 34 of IPC:
The Court noted that the evidence of the three children of the deceased did not indicate that convict 2 had accompanied the deceased in the evening hours on 12-12-2007. In fact, there is no evidence on record that when convict 3left with the deceased on that day, convict 2 was present in the house of the deceased, or he played any role in asking the convict 3to take the deceased with him. The Court noted that there is no evidence that the convict 2 had gone to the spot where the dead body was found. There is no evidence that when convict 3returned alone in the night on 12-12-2007, the convict 2was there.
The Court further noted that the conduct of convict 2 in coming to the house of the deceased in his absence and staying with his family after the deceased went missing might raise suspicion against his conduct, but law is well settled that suspicion howsoever strong, cannot be a substitute for proof of guilt of an accused beyond reasonable doubt. The Court stated that in dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind might take the place of proof and therefore, the Court has to be watchful and ensure that such thing should not take place.
The Court noted that in their view the prosecution has failed to elevate the case against him from the realm of “may be true” to the plane of “must be true” as is indispensably require in law for conviction on a criminal charge. Additionally, the evidence regarding the claim that the appellant played any role in causing disappearance of evidence is lacking.
The Court also noted that there is no evidence on record that the kerosene which was procured by convict 2was used in causing burn injuries to the deceased. Additionally, even if the prosecution has proved that one ‘Muli Thenga’ was seized at the instance of the convict 2 and the doctor opined that with such wooden stick, the ante-mortem injuries could be possible on the deceased, all these circumstances taken together do not unerringly point towards the guilt of convict 2
Holding the aforesaid, the Court acquitted the convict 2.
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Appellant Surya Kanta Behera , convicted under Section 201 read with Section 511 read with Section 34 of IPC:
The Court noted that evidence on record clearly establishes the facts concerning convict 3’s involvement. The Court also noted that he has not offered any explanation as to what happened to the deceased and when he parted with the company of the deceased. Additionally, convict 3 had not examined any witness to show that he had gone to see a girl for him with the deceased.
The Court held that the facts regarding proximity of time when the two were last seen together, when the dead body was found, other circumstantial evidence including the medical evidence and failure to discharge his burden under Section 106 of the Evidence Act, 1872 are sufficient to attract the ingredients of both the offences under which he has been found guilty.
Accordingly, the Court upheld the conviction and sentence of convict 3
Thus, holding the above stated acquittals and conviction, the Court allowed one appeal petition and dismissed the other. The Court also directed the cancellation of the bail and surety bonds of the convict 3 and directed him to surrender before the Trial Court within two weeks to serve his sentence.
[Syama Choudhury v. State of Odisha, 2024 SCC OnLine Ori 2591, decided on 14-11-2024]
*Judgment Authored by Justice SK Sahoo
Advocates who appeared in this case :
For the appellants: Ms. Sasmita Nanda, Advocate
For the respondent: Jateswar Nayak, Addl. Govt. Advocate
Buy Penal Code, 1860 HERE
