Wife Not Reporting About Missing Of Husband & Staying With Paramour Not Criminal Conspiracy U/S 120-B IPC: Orissa High Court

The Orissa High Court on Thursday held that a wife not reporting the police about missing status of husband, not trying to trace him out and living passively with another man will not amount to criminal conspiracy.

While acquitting the appellant-wife of the charge of criminal conspiracy, the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash observed –

“…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.”

Prosecution Case

On 12.12.2007, after the deceased husband left home for college, the appellant-Syama Choudhury and appellant-Surya Kanta Behera @ Katiki met the appellant-wife (of the deceased) in her house and discussed about something.

In the afternoon, the deceased came back to his house and took a nap. At this point of time, the appellant-Katiki asked the deceased to accompany him to see a girl and the appellant-wife also convinced him to proceed with appellant-Katiki. Accordingly, both the deceased and appellant Katiki left on a motorcycle.

At about 10:30 PM in the night, the appellant-Katiki returned to the house and parked the motorcycle. When the minor daughter of the deceased asked the said appellant about the whereabouts of her father, he informed that he had gone to Hanuman temple and he will return soon.

However, the deceased never returned back to the house thereafter and the appellant-Syama Choudhury started living with the appellant-wife and her three children. Whenever the children used to raise query about the whereabouts of their father, appellant-Syama Choudhury threatened them.

Subsequently, the police found an unknown dead body and in an effort to establish the identity thereof, they widely inquired in different areas carrying the photo of the body which ultimately led them to the house of the deceased. Upon seeing the police, the appellant-Syama Choudhury tried to flee from the house. When police showed the photos of dead body, the children could recognize the same to be of the deceased.

Upon completion of investigation, the police filed charge-sheet against the three appellants and two other accused persons. The trial Court, after examining evidence on record, found the appellants Syama Choudhury and Katiki guilty for commission of offences under Sections 302/34 and Sections 201/511 read with Section 34 of the IPC and it also found the appellant-wife guilty under Section 120-B for hatching criminal conspiracy. However, it acquitted the other two accused persons of all charges.

Being aggrieved by the order of conviction, the three appellants impugned the same by filing these jail criminal appeal and criminal appeal.

Court's Observations

The Court examined all the evidence on record and formulated certain circumstances which were palpable in this case. Considering the evidence of the testimonies of the minor children of the deceased, the Court came to the conclusion that though the deceased and his appellant-wife lived together, but there was dissention between them over frequent visit of appellant-Syama Choudhury to their house.

From the evidence of the minor children of the deceased, the Court also held that the appellant-wife had intimacy with the appellant-Syama Choudhury. Further from their evidence, it became evident that on the date of occurrence, both the appellants (Syama and Katiki) met the appellant-wife in absence of the deceased and subsequently, the appellant-wife convinced the deceased to accompany the appellant-Katiki on a motorcycle to see a girl.

Furthermore, the Court stressed the evidence of minor children about the 'last seen' of the deceased in the company of the appellant-Katiki. It held that this circumstance holds a lot of importance as the said appellant was last seen alive with the deceased and thereafter, nobody has seen the deceased alive.

Thus, it was of the view that if the appellant-Katiki was seen with the deceased and after a short span of time, the latter died a homicidal death, then the onus lies upon the former to explain under which circumstances the deceased died. It was further underlined that though the appellant was confronted about this circumstance while recording his statement under Section 313 of the CrPC, but he failed to furnish any satisfactory explanation.

Apart from the above, the post-mortem report revealed that the burn injuries found from the dead body are caused due to dry heat with the aid of kerosene like substance and all the internal injuries were found to be ante-mortem and homicidal in nature caused by the impact of hard and blunt force. The time of death opined by the doctor was also found to be around the same time when the appellant Katiki was with the deceased.

So far as the conviction of appellant wife for hatching criminal conspiracy to cause the death of the deceased is concerned, the Court pointed out that the trial Court whimsically came to record the conviction as though charge was framed against her under Section 120-B for entering into criminal conspiracy with appellant Syama Choudhury but the latter was not charged for the same offence.

The Court, thus, relied upon the decisions of the Supreme Court in the cases of Bimbadhar Pradhan v. State of Odisha (1956), Maghavendra Pratap Singh v. State of Chhattisgarh (2023) and Girija Sankar Misra v. State of UP (1993) to hold that a single individual cannot be held guilty for entering into criminal conspiracy, as agreement between at least two persons for commission of such offence is a sine qua non.

Further relying upon Ram Sharan Chaturvedi v. State of M.P.(2022), the Court held that for the offence of criminal conspiracy some kind of 'physical manifestation' of agreement is required and mere evidence of transmission of thoughts sharing the unlawful act would not suffice.

“In the present case, the prosecution has utterly failed to conclusively prove transmission of thoughts between the appellant Nibedita Panda and other accused persons, leave alone putting forward any acceptable and rigid evidence regarding physical manifestation of agreement.”

Hence, the Bench held that when the basic ingredient of offence under Section 120-B, i.e. agreement between at least two persons could not be proved by the prosecution to the hilt, the accusations against the appellant-wife, only basing upon her conducts in refraining from lodging complaint about his missing husband, living with another man (appellant Syama) and not trying to trace the deceased out, are not sufficient to hold her guilty under the aforesaid provision.

So far as the culpability of the appellant Syama Choudhury is concerned, the Court held that merely because he was living with the appellant-wife and her children in her house in the absence of the deceased and he led the police team to the spot from where weapon of offence was recovered are not sufficient to uphold his conviction recorded by the trial Court.

Accordingly, the conviction of appellant Katiki was upheld but the other two appellants were acquitted of all the charges.

Case Title: Syama Choudhury & Anr. v. State of Odisha

Case No: JCRLA No. 46 of 2010 and CRLA No. 442 of 2010

Date of Judgment: November 14, 2024

Counsel for the Appellants: Ms. Sasmita Nanda, Advocate

Counsel for the State: Mr. Jateswar Nayak, Additional Government Advocate

Citation: 2024 LiveLaw (Ori) 91

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