Not Trying To Ascertain Whereabouts Of Deceased On Not Returning Home Isn’t Sufficient For Conviction In Absence Of Clinching Evidence: Orissa HC
The Orissa High Court observed that if a person does not try to ascertain the whereabouts of the deceased on him not returning home and not report the matter to the police, is not sufficient for conviction under Section 120-B of the Indian Penal Code (IPC) in absence of clinching evidence.
The Court observed thus in Appeals preferred by the accused persons against the Judgment of the Trial Court by which they were convicted in a murder case.
A Division Bench of Justice S.K. Sahoo and Justice Chittaranjan Dash held, “The evidence of three children of the deceased and appellant Nibedita Panda is totally silent to fulfil the ingredients of offence of criminal conspiracy. Even if their evidence that the appellant Syama Choudhury had come to their house on the date of occurrence and was talking with their mother is accepted and it is further accepted that the said appellant Syama Choudhury was staying with their mother after the missing of the deceased in the house of the deceased and it is further accepted that the appellant Nibedita Panda did not try to ascertain the whereabouts of the deceased whom she had sent with the appellant Katiki on 12.12.2007 even though the deceased did not return home for more than a month and did not try to report the matter before police, but in absence of any other clinching evidence, only basing on these suspicious conducts of the appellant, it cannot be held to be sufficient to convict her for offence of criminal conspiracy.”
Advocate Sasmita Nanda appeared on behalf of the Appellants/accused while Additional Government Advocate (AGA) Jateswar Nayak appeared on behalf of the Respondent/State.
Brief Facts -
As per the prosecution case, one unknown male burnt dead body was lying on a road who was aged about 25-30 years. His dead body was lying near the bush in a naked condition and his wearing apparels were burnt except a little piece of shirt and pant sticking to the body and blood was oozing out from the nose, eye, ear, and mouth and there was injury mark also on the left eye brow, the skins were found to be peeled, and water bubbles could be seen over the body. Hence, an FIR was registered and during investigation, the photograph of the dead body was identified. On conducting search in the house of the deceased in presence of police officers, the Appellant Syama Choudhury tried to escape through the back door of the house and apprehended.
Thereafter, the accused persons (Appellants) Syama Choudhury and Nibedita Panda (wife of the deceased) were taken into the custody for interrogation. Accordingly, other accused persons were also identified. The accused persons were charged under Section 201 read with Section 34 of IPC on the accusation that they set fire to the body of the deceased to cause evidence of murder to disappear with the intention of screening themselves from the legal punishment in furtherance of their common intention. The Trial Court acquitted the co-accused persons but found the Appellants guilty under Sections 302, 34, 201, 511, and 120-B of IPC. Being aggrieved, they approached the High Court.
The High Court in view of the facts and circumstances of the case, noted, “In our humble view, whatever materials are there against the appellant Syama Choudhury on record though raised some suspicion against his conduct, but 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.”
The Court added that the evidence is also lacking that the Appellant Syama Choudhury played any role in causing disappearance of evidence and even though it is the evidence of the witness that the Appellant gave him a bottle to fetch kerosene in the afternoon and accordingly, he procured the kerosene and handed over the same to him and thereafter, left the house and even though the doctor’s evidence is that the burn injuries sustained by the deceased were post-mortem in nature which were caused due to dry heat with aid of kerosene like substance, but there is no evidence on record that the kerosene which was procured by the Appellant was used in causing burn injuries to the deceased.
“Even if the prosecution has proved that one ‘Muli Thenga’ (M.O.I) was seized at the instance of the appellant Syama Choudhury from under one culvert near village Ramadihi and the doctor opined that with such wooden stick, the ante-mortem injuries could be possible on the deceased, but all these circumstances taken together, in our humble view do not unerringly point towards the guilt of the appellant and therefore, the prosecution has failed to establish the charges under sections 302/34 and 201/511 of the Indian Penal Code against appellant Syama Choudhury and accordingly, he is acquitted of such charges”, it further said.
The Court also noted that the Appellant Katiki had not examined any witness to show that he had gone to see a girl for him with the deceased and that the proximity of time when the two were last seen together and the dead body was found coupled with the other circumstantial evidence including the medical evidence and failure to discharge his burden under Section 106 of the Evidence Act, is sufficient to attract the ingredients of the offences under which he has been found guilty by the Trial Court.
Accordingly, the High Court acquitted Syama and Nibedita but confirmed the conviction of Katiki.
Cause Title- Syama Choudhury & Anr. v. State of Odisha
