The High Court · 2023

Judgment

07.12.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The three appellants, namely, Padabendra Senapati, Kausalay Senapati and Saroj Senapati faced trial in the Court of learned Sessions Judge, Balasore–Bhadrak in [ 2 ] S.T. Case No.53 of 1999 for offences punishable under sections 302, 201 read with section 34 of the Indian Penal Code (hereinafter ‘I.P.C.’) on the accusation that on

26.02.1997 at Belbaria, they committed murder of Manoj Senapati @ Sambhu Senapati (hereinafter ‘the deceased’) in furtherance of their common intention and knowing that certain offences have been committed which is punishable with death or imprisonment for life, they caused certain evidence of the said offences to disappear by throwing away the dead body with an intention to screen themselves from legal punishment. The learned trial Court vide impugned judgment and order dated 16.12.2000 acquitted the appellants of the charge under section 302 of the I.P.C., however, found them guilty under section 201 of the I.P.C. and sentenced each of them to undergo R.I. for a period of one year. Prosecution Case:

2. The prosecution case, in short, is that dead body of the deceased was recovered from the paddy field called ‘Mahabila Nala’ and Jaleswar P.S. U.D. Case No.5 of 1997 was registered by O.I.C., Jaleswar Police Station on [ 3 ]

02.03.1997 on the written report presented by Gourahari Das (P.W.4), the father-in-law of the deceased. P.W.8 Surendra Kumar Behuria, S.I. of Police, Jaleswar Police Station was directed to take up enquiry of the said U.D. case. During the course of enquiry, P.W.8 examined the witnesses, visited the spot, conducted inquest over the dead body of the deceased, seized one check lungi, sent the dead body for post mortem examination and received the post examination report (Ext.3). Subsequently, on

Legal Reasoning

investigation of this case from P.W.6 and finding prima facie [ 8 ] case against the appellants, submitted charge sheet against them. P.W.8 Surendra Kumar Behuria was the Sub- Inspector of Police, Jaleswar Police Station. After receiving written report from P.W.4, P.W.6 directed him to take up enquiry of the case. The prosecution exhibited six numbers of documents. Ext.1 is the F.I.R., Ext.2. is the inquest report, Ext.3 is the post-mortem examination report, Ext.4 is the query made by P.W.8 to P.W.5 and Exts.5 & 6 are the seizure lists. Defence Plea, Defence Witness & Exhibit:

4. The defence plea of the appellants was one of complete denial. The defence, in order to disprove the prosecution case, examined one witness. D.W.1 Sk. Farid Ahamed was an Advocate practising at Jaleswar who stated that one Advocate’s clerk Ananta Rout had scribed an affidavit when he was not present, which was sworn in by P.W.1 on 16.01.1999. He, however, stated that he attested the L.T.I. of P.W.1 on that [ 9 ] affidavit and read over and explained the contents of the affidavit to P.W.1. He further denied to have filed the said affidavit before the Court. The defence exhibited one document. Ext.A/2 is the affidavit sworn in by P.W.1 on 16.01.1999. Findings of the Trial Court:

5. The learned trial Court, after assessing the oral as well as the documentary evidence on record, came to hold that the prosecution has not been able to prove that the death of the deceased was homicidal through the evidence of the doctor (P.W.5) or through any other piece of evidence and the informant (P.W.1) although has stated to have seen the dead body of her husband (the deceased) being carried by the appellants, she has not seen the alleged killing of the deceased. Therefore, it cannot be concluded that the death of the deceased was homicidal. However, the learned trial Court taking into account the evidence on record regarding the conduct of the appellants on the night of occurrence came to hold that the appellants tried their best for causing disappearance of evidence with [ 10 ] regard to the suspicious and unnatural death of the deceased intending to screen them from legal punishment. Accordingly, the appellants were found guilty under section 201 of the I.P.C. Contentions of the Parties:

6. Mr. Sidharth Shankar Lenka, learned counsel for the appellant contended that the appellants have been acquitted of the charge under section 302 of the I.P.C. and the finding of the learned trial Court is that the prosecution has failed to establish that the deceased met with a homicidal death and merely because P.W.1 stated that the dead body of the deceased was removed by the appellants from their house in the dead hour of the night, the ingredients as provided under section 201 of the I.P.C. are not attracted. Learned counsel further argued that the occurrence in question stated to have taken place on

22.06.1997 and four to five days thereafter the dead body was recovered and thereafter the U.D. case was registered and the police was investigating the matter and from the evidence, it further appears that P.W.1 went to stay at her father’s place and in such a situation, had P.W.1 been [ 11 ] aware of the fact that the appellants had committed murder of the deceased, she would have immediately disclosed the same before her family members, villagers and also to the police and in view of the belated lodging of F.I.R., it can be said that the case has been concocted to falsely implicate the appellants and since there is no other cogent evidence on record, it is a fit case where benefit of doubt should be extended in favour of the appellants. Mr. Rajesh Tripathy, learned Additional Standing Counsel on the other hand submitted that even though the appellants have been acquitted of the charge under section 302 of the I.P.C., there is no bar in convicting the appellants under section 201 of the I.P.C., particularly when in view of the evidence of P.W.1, it is apparent that in the dead hour of the night, the appellants were seen removing the dead body of the deceased from the house and they also did not lodge any missing report before the police station and there was ill-feeling between the appellants and the deceased as the deceased was sitting idle in the house and moreover the appellants absconded and all these circumstances substantiate that on the night of occurrence, they removed the dead body of the deceased from their [ 12 ] house for causing disappearance of the evidence and therefore, the learned trial Court has rightly found the appellants guilty under section 201 of the I.P.C. Can conviction be recorded U/S 201 I.P.C. when appellants are acquitted U/S 302, I.P.C.?:

7. The brief and precise question that falls for consideration is whether conviction of the appellants can be sustained under section 201 of the I.P.C. when they have already been acquitted under section 302 of the I.P.C. In the case of Sukhram -Vrs.- State of Maharashatra reported in (2007) 7 Supreme Court Cases 502, relying on the Constitution Bench decision in the case of Kalawati -Vrs.- State of Himachal Pradesh reported in AIR 1953 Supreme Court 131, the Hon’ble Supreme Court held is well settled notwithstanding acquittal of the accused of the offence under section 302 of the I.P.C., his conviction under section 201 of the I.P.C. is still permissible. In the case of Ram Saran Mahto and Anr. -Vrs.- State of Bihar: (1999) 9 Supreme Court Cases 486, the Hon’ble Supreme Court held that conviction under [ 13 ] the main offence is not necessary to convict the offender under section 201 of the I.P.C. To quote: “13. It is not necessary that the offender himself should have been found guilty of the main offence for the purpose of convicting him of offence under section 201. Nor is it absolutely necessary that somebody else should have been found guilty of the main offence.” In Sou Vijaya @ Baby -Vrs.- State of Maharashtra reported in (2003) 8 Supreme Court Cases 296, the Hon’ble Supreme Court reiterated that "there is no quarrel with legal principle notwithstanding acquittal with reference to the offence under section 302 Indian Penal Code, conviction under section 201 is permissible, in a given case." Therefore, a charge under section 201 of the Indian Penal Code can be independently laid and conviction can be maintained, if the requirements as provided under the said provision are met. In other words, the charge under section 201 of the I.P.C. is not a corollary of the charge under 302 of the I.P.C. and both the charges can exist without one another. [ 14 ] Analysis of evidence on record for the charge under section 201 of I.P.C.:

8. To bring home an offence under section 201 of the I.P.C., the prosecution is required to establish the following ingredients: (i) an offence has been committed; (ii) person charged with the offence under section 201 of the I.P.C. must have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to [ 15 ] bring home the charge under section 201 of the I.P.C., a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown. In the case of Hanuman and Ors. -Vrs.- State of Rajasthan reported in (1994) 2 Supp Supreme Court Cases 39, the Hon’ble Supreme Court held that the mere fact that the deceased allegedly died an unnatural death could not be sufficient to bring home a charge under section 201 of the Indian Penal Code. Unless the prosecution was able to establish that the caused person knew or had reason to believe that an offence has been committed and had done something causing the offence of commission of evidence to disappear, he cannot be convicted. I shall now revert to the factual matrix and see whether the conviction in the facts and circumstances of the [ 16 ] case under section 201 of the Indian Penal Code could be sustained. In the case in hand, the doctor (P.W.5), who conducted post-mortem examination over the dead body of the deceased, has stated that the dead body was at the advance stage of decomposition, face and limbs were mutilated and partly eaten away by wild animals, bones, teeth, limbs were exposed, the body was full of maggots and abdomen distended, both the legs were eaten away up to the ankle, left palm was absent up to the wrist. On dissection, he found the intestine was distended, stomach was filled with undigested food and since the body was highly decomposed, no external injury could be marked and with regard to the cause of death, the opinion was reserved pending chemical analysis of viscera. It appears that no viscera report was obtained and produced before P.W.5 to obtain the final opinion regarding cause of the death of the deceased. Therefore, there is no evidence on record that the deceased met with a homicidal death or any unnatural death and that is how the learned trial Court has arrived at [ 17 ] the finding that it cannot be certainly said that the death of the deceased was homicidal. No doubt from the evidence of P.W.1, it appears that she had seen the removal of the dead body of her husband (deceased) from the house by her father-in-law (appellant no.1) and brother-in-law (appellant no.3) and she was also threatened, but unless there is evidence that it was a case of homicidal death or an offence has been committed in relation to the death of the deceased and the appellants having knowledge or reason to believe that an offence has been committed, removed the dead body from their house for causing disappearance of the evidence with regard to that offence, the ingredients of the offence under section 201 of the I.P.C. would not be attracted. Mere removal of the corpse would not be sufficient to find the appellants guilty of such charge. Mere suspicion is not sufficient, it must be proved that the appellants knew or had a reason to believe that the offence has been committed and yet they caused the evidence to disappear so as to screen them from legal punishment. Therefore, I am of the view that there is no material before this Court to come to the conclusion that the appellants had the [ 18 ] knowledge that an offence has been committed or at least they had reasons to believe it and knowingly or having reason to believe the same, they caused disappearance of evidence of commission of that offence. No doubt the learned counsel for the appellants argued regarding delay in lodging the F.I.R. and it appears in this case that the F.I.R. was lodged almost eighteen days after the date of commission of the offence, however, the state of mind of P.W.1 and the threat stated to have given by the appellants to P.W.1 cannot be lost sight of while adjudging the circumstances which led to the delay in lodging the F.I.R. More particularly, the evidence of P.W.1 indicates that she was shocked for which she lost the balance of her mind and P.W.2 (uncle of the informant) has stated that P.W.1 was always crying in her parents’ house and was also becoming senseless at times. Similarly, P.W.4 (father of the informant) has stated that for fifteen to sixteen days, P.W.1 was unable to tell anything out of shock as she lost her balance of mind subsequent to the death of the deceased. Therefore, in my humble view, delay cannot be the sole factor to disbelieve the evidence of P.W.1. [ 19 ] The submissions of learned counsel for the State that there was ill-feeling between the parties as the deceased was not doing anything is no doubt apparent from the evidence of P.W.1, but it is very difficult to believe that the parents and brother of the deceased would go to the extent of killing him for this reason. Therefore, motive behind the commission of crime is also absent in this case. Absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. Though the appellants were found absconding, but the law is well settled that absconding itself cannot be a factor to prove culpability of the accused persons. Conclusion:

9. In view of the foregoing discussions, when the prosecution has not satisfactorily proved the death of the deceased to be homicidal in nature and has also failed to prove that the appellants had the knowledge or reasons to believe that an offence has been committed in relation to the death of the deceased, merely because they were found removing the dead body from the house in question in the dead hour of night as deposed to by P.W.1, it cannot be [ 20 ] said that the ingredients of the offence under section 201 of the I.P.C. are satisfied. Therefore, the appellants are acquitted of the charge under section 201 of the I.P.C. Resultantly, the Criminal Appeal is allowed. Before parting with the case, I would like to put on record my appreciation to Mr. Sidharth Shankar Lenka, learned counsel for the appellant for rendering his valuable assistance towards arriving at the decision above mentioned. This Court also appreciates Mr. Rajesh Tripathy, learned Additional Standing Counsel for ably and meticulously presenting the case on behalf of the State. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 7th December 2023/Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Dec-2023 16:59:25

Arguments

16.03.1997, P.W.1 Smt. Swapnarani Senapati, the widow of the deceased lodged the F.I.R. before Jaleswar police station on the basis of which Jaleswar P.S. Case No.26 dated 16.03.1997 was registered under sections 302/201/34 of the I.P.C. against the appellants wherein it is stated that the deceased was an unemployed and jobless person for which the appellants being the father, mother and brother of the deceased were assaulting him and on the date of occurrence, the deceased was present in the house and when he felt hungry, he came to the kitchen, but found it locked and accordingly, he broke open the lock, entered inside the kitchen and took the food for which his mother Kausalaya Senapati (appellant no.2) threatened him with [ 4 ] dire consequences. The above incident took place at 9.00 a.m. whereafter the informant (P.W.1) went to cultivate the land and returned in the evening and found the deceased was absent in the house and the room of the deceased was also locked. When the informant asked her mother-in-law (appellant no.2) about the whereabouts of the deceased, she told that the deceased had gone to the village. After taking food, P.W.1 went to sleep and the appellant no.2 slept guarding the entrance of the bedroom of P.W.1. In the night, P.W.1 got up and found her father-in-law (appellant no.1) and brother-in-law (appellant no.3) were removing the dead body of the deceased and when the informant started crying, she was threatened by the appellants with dire consequences and was also warned not to disclose the same before anyone. Out of fear, P.W.1 did not disclose the incident before anyone. Subsequently, when the dead body of the deceased was found, she identified the same, but remained silent and did not complain before others on account of fear. When she came to reside at her father’s place after the incident, after getting assurance from the paternal side family members so also the villagers, she lodged the F.I.R. [ 5 ] P.W.7, the Circle Inspector of Jaleswar Police Station took charge of the investigation from P.W.6, who had registered the F.I.R. and started investigation of the case. P.W.7 made a query to the doctor (P.W.5), who conducted post mortem examination over the dead body of the deceased, received the query report (Ext.4/1) so also the post mortem examination report (Ext.3) and on completion of investigation, charge sheet was submitted on

08.03.1998 against the appellants under sections 302/201/34 of the I.P.C. Prosecution Witnesses & Exhibits:

3. During course of the trial, in order to prove its case, the prosecution examined as many as eight witnesses. P.W.1 Swapnarani Senapati is the widow of the deceased and the informant in this case. She elaborately explained the incidents that unfolded on the date of occurrence and implicated the appellants for the murder of the deceased. [ 6 ] P.W.2 Rabindranath Das is the uncle of P.W.1 who scribed the F.I.R. He stated that P.W.1 narrated the entire incident before him which he later reduced to writing as F.I.R. He is also a witness to the preparation of the inquest report vide Ext.2. P.W.3 Banamali Das stated that on 02.03.1997, he was informed by P.W.4 about discovery of the dead body of the deceased from Mahabila. He also stated that the appellants used to assault the deceased and they had separated him and his wife (P.W.1) for which they came to live in the house of P.W.4, but later on, the first appellant came and took the couple back to his house. He further stated that P.W.1 lost her mental balance for 15 days after the death of the deceased. P.W.4 Gourahari Das is the father of P.W.1 and father-in-law of the deceased. He stated that upon learning the discovery of the dead body, he went to the spot and identified the same to be that of the deceased. He inquired from his daughter (P.W.1) as to how the deceased died but she could not tell anything as she had lost her mental balance after seeing the dead body of the deceased. He [ 7 ] further stated that after 15-16 days, P.W.1 informed him that she would file a case against the appellants as they killed the deceased. P.W.5 Dr. Bishnu Prasad Samantaray was working as the Medical Officer (Assistant Surgeon) at the District Headquarters Hospital, Balasore. He conducted post-mortem examination over the dead body of the deceased upon police requisition and proved his report vide Ext.3. He further stated that P.W.8 made a query vide Ext.4, regarding the injury marked on the dead body of the deceased and he answered the same vide Ext.4/1. P.W.6 Mayadhar Swain was posted as the Officer-in-Charge of Jaleswar Police Station who received the written report from P.W.1 and registered the case against the appellants and took up the investigation. Subsequently, he handed over the charge of investigation to the Circle Inspector of Police, Jaleswar (P.W.7). P.W.7 Kshetra Mohan Mohapatra was the Circle Inspector of Police, Jaleswar who took over the charge of