The Orissa High Court has overturned the conviction of a woman accused of conspiring to murder her husband, ruling that her failure to report 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.

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 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 of the bosyy, they widely inquired in different areas carrying the photo of the body which ultimately led them to the house 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.

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.

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