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CASE NO.: Appeal (crl.) 267  of  1991

PETITIONER: V.L. TRESA

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       09/02/2001

BENCH: Umesh C. Banerjee & K.G. Balakrishhnan.

JUDGMENT:

BANERJEE, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This Appeal by the grant of special leave is against the judgment  and  order  dated 22nd January, 1991 of  the  High Court  of  Kerala confirming the conviction for the  offence under  Section 201 of the Indian Penal Code though  however, the sentence has been reduced to simple imprisonment for one year  as against rigorous imprisonment for five years by the learned Sessions Judge.

   The  core  issue  pertains to impediment, if any,  to  a conviction  under  Section 201 IPC on acquittal of the  main offence?   The Appellate Bench of the High Court answered it in  the  negative and confirmed conviction and sentenced  as noted above.

   The  contextual facts depict that Vincent, the deceased, was  a  young advocate and his death was suspected to  be  a murder.   After  investigation,  his wife was  indicted  for murder  and also for giving false information regarding  the incident  in  order to screen herself from punishment.   The learned  Sessions Judge however acquitted her of the  charge of  murder  but convicted her for the offence under  Section 201  of  the  Indian Penal Code and thus  sentenced  her  to undergo  rigorous imprisonment for five years and it is this conviction  and sentence which were challenged in Appeal  by the Appellant herein.

   Before  the  High Court, it was contended in support  of the  appeal;  that the offence under Section 201 of the  IPC can not form the basis of any conviction without there being any principal offence, and as such by reason of the order of acquittal  under  Section  302  and there  being  no  appeal against  such an order of acquittal, question of there being any  conviction  for the alleged offence under Section  201, would  not  arise.   Subsequently, however,  the  revisional jurisdiction  of  the High Court has been initiated  by  the learned Single Judge suo moto against the order of acquittal and  the  matter  was placed before the Division  Bench  for hearing  of the appeal as also the revisional petition.   At

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the  hearing  before the Bench however, the  learned  Public Prosecutor very strongly canvassed for the conviction of the appellant under Section 302 of the I.P.C.

   Before  proceeding  with  the  matter  any  further  the prosecution case be briefly noted hereinbelow:  The deceased advocate  was  residing  with  his wife and  daughter  in  a separate  house  from  his parents and  since  the  deceased incurred  debts  he  wanted to dispose of the land  and  the building  in  which they resided which stood in the name  of his  wife.   As a matter of fact, an agreement for sale  was more  or  less finalised when on the date of occurrence  the deceased advocate after consumption of alcohol returned home in  the night and informed his wife as regards the factum of execution  of the agreement for sale on the following  date. On  this  issue however, there was heated exchange of  words between the husband and the wife and she inflicted an injury on  the forehead of the deceased with a crowbar.  The injury however,  resulted  damage  of skull and  brain  and  almost brought  the  death  instantaneously.    The  accused  wife, however,  became very active thereafter and the crowbar  was concealed  beneath  the  firewood splinters stacked  in  the kitchen  and  it has been made out to all those who  reached the  house  that he committed suicide by  hanging.   Without knowing  however, the real cause of death, the father of the deceased  (P.W.1)  provided  the first  information  to  the Police  and  the first information report was registered  by the  Police  for  unnatural death but when the  autopsy  was done,  the  Police  sensed it to be a case of  murder.   The accused   wife   was   subsequently    arrested   and   upon interrogation,  the  investigation   officer  recovered  the crowbar  from the firewood sprinters stacked in the  kitchen which  was  also  subjected  to chemical  analysis  and  the forensic  report  revealed  that it was stained  with  human blood of the same group as that of the deceased.

   During  the course of examination of the accused  before the  learned  Sessions Judge, she denied her complicity  and stated that as a matter of fact she was not against the sale of  the  property  but she insisted that  the  sale  proceed should  be deposited in her name and since there was such  a dispute,  hot  exchange  of words followed and  the  husband tried to commit suicide on an iron beam above the wash basin in  the  work area and when she caught hold of his  legs  to save  him,  he  fell  down as the knot got  untied  and  his forehead  hit hard surface resulting the fatal injury.  This has been the consistent case of the accused wife both to the persons  who  came to the house immediately after  the  news spread as also in court.

   The  learned Sessions Judge however, came to a  definite conclusion  that the prosecution has not been able to adduce sufficient and reliable evidence that it was the accused and the  accused alone who inflicted the fatal injury on Vincent resulting in his death.  The Sessions Court reminding itself of  the  golden  principles for having a  proof  beyond  all reasonable doubt recorded:  it cannot also be said that the evidence  adduced by the prosecution will conclusively  show that Vincent was a person of expensive habits or squandering money  or was threatening or ill treating the wife and on a consideration  of the totality of the evidence, came to  the finding  as  noticed above against the  prosecution.   Three decisions  of  this  Court  namely Kali  Ram  v.   State  of Himachal  Pradesh [1973 SCC (Crl.) 1048]:  Ramdas v.   State of  Maharashtra  [1977  SCC (Crl.) 254] and Prem  Thakur  v.

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State  of  Punjab [1983 SCC Crl.) 88] were  strongly  relied upon  in arriving at the opinion that the accused cannot  be found guilty of murdering her husband.

   The judgment under appeal does not run counter to such a finding  since  the main thrust is on the effect of  Section 201  IPC.   The order of acquittal under Section 302  though urged by the prosecution as otherwise not in accordance with law  was not considered by the High Court worth anything and thus  candidly  recorded  we refrain  from  distorting  the finding  of the learned Sessions Judge that the  Prosecution has  failed to prove that it was the accused who caused  the death  of the deceased.  In that view of the matter we need not  also delve into the issue in any further detail  though some  attempt has been made before us also, without  however there  being  any cross appeal, on the plea that the  entire matter is before the Court.

   The  issue  thus  pertains  to  the  maintainability  of conviction  and sentence under Section 201.  The law on this score  is well settled since the decision in Kalawatis case (  Kalawati  v.  The State of Himachal Pradesh :AIR 1953  SC 131)  wherein,  Chandrasekhara Aiyar, J.  speaking  for  the Bench observed:

   21.   But there can scarcely be any doubt that she must have  witnessed the murder of her husband lying next to  her on  a charpai.  Shibbi who was at a distance of 18 feet  was roused  by the sound of a sword attack.  Kalawati must  have woke  up  also at least during the course of the assault  if not  at  its  commencement,  several  injuries  having  been inflicted  in  succession.  When Shibbi woke up,  Kalawatis bed was empty, and she was found in a room nearby and not at the place of occurrence.  She trotted out an elaborate story of  dacoity, which cannot be accepted as true.  Even if,  in terror  she  ran away from her bed and stood at a  distance, she  is  almost  sure to have known who  was  the  offender, unless  he had his face muffled.  The first version she gave to  the police head constable when he appeared on the  scene immediately after the occurrence is, we think, false, and we are  of  opinion that she knew or believed it to  be  false. The  border line between abetment of the offence and  giving false  information to screen the offender is rather thin  in her  case,  but it is prudent to err on the safe  side,  and hold  her guilty only of an offence under s.201, Penal Code, as the learned Sessions Judge did.

   It  has however been contended by Shri Sushil Kumar, the learned  Senior Advocate appearing in support of the Appeal, that  the  decision  in Kalawatis case does not,  in  fact, govern  the  present  situation  since  in  Kalawatis  case (supra)  the  wife  was  charged of murder  of  her  husband alongwith  another  person and the court acquitted the  wife for murder but convicted the other person and then proceeded to  consider  as to whether the wife committed  the  offence under Section 201 of the IPC?  It has been contended that on the  factual backdrop in Kalawatis case, (supra) this Court thus  came to the conclusion that acquittal of the wife  for the  main offence is no legal impediment to convict her  for the  offence under Section 201 of the IPC.  Reference to the language  used in Section 201 in this context may be of some relevance.

   Section  201  I.P.C.   reads as below:   201.   Causing disappearance  of  evidence  of  offence,  or  giving  false

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information  to screen offender.- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with  the  intention  of screening the offender  from  legal punishment,  or  with that intention gives  any  information respecting  the  offence  which he knows or believes  to  be false, [if a capital offence] shall, if the offence which he knows  or believes to have been committed is punishable with death,  be punished with imprisonment of either  description for  a term which may extend to seven years, and shall  also be  liable  to fine;  [if punishable with  imprisonment  for life] and if the offence is punishable with imprisonment for life,  or  with imprisonment which may extend to  ten  years shall  be  punished with imprisonment of either  description for  a term which may extend to three years, and shall  also be liable to fine;  [if punishable with less than ten years imprisonment]   and  if  the   offence  is  punishable  with imprisonment  for any term not extending to ten years, shall be  punished  with imprisonment of the description  provided for  the offence , for a term which may extend to one-fourth part  of  the longest term of the imprisonment provided  for the offence, or with fine, or with both.

   Having  regard  to  the  language  used,  the  following ingredients emerge:

   (I) Committal of an offence;

   (II)  person charged with the offence under Section  201 must  have the knowledge or reason to believe that the  main offence has been committed;

   (III)  person charged with the offence under Section 201 IPC  should have caused disappearance of evidence or  should have given false information regarding the main offence and

   (IV) the act should have been done with the intention of screening the offender from legal punishment.  The impact of Section  201 thus is the intent to screen the offender  from legal  punishment.  It is on this score that the High  Court observed:

   Such  intention exists or presumed to exist in the  mind of  the accused when he has some interest in the person  who committed  the  main  offence.  Though the identity  of  the person  who committed the main offence is not established in evidence,  there  must  be  material to  indicate  that  the accused know who the main offender was, when the accused did the act of causing disappearance of evidence or giving false information  regarding the offence.  The intention to screen the  offender  must  be the primary and sole object  of  the accused.   The mere fact that the concealment was likely  to have that effect is not sufficient.

   Having regard to the language used, mere suspicion would not be sufficient.  There must be available on record cogent evidence  that  the  accused  has  caused  the  evidence  to disappear  in order to screen another known or unknown.  The fore-most  necessity  being that the accused must  have  the knowledge or have reason to believe that such an offence has been  committed.   This  observation finds  support  in  the oft-cited decision of this Court in Palvinder Kaur v.  State of  Punjab  (AIR  1952 SC 354).  Further, in Roshan  Lal  v. State  of Punjab (AIR 1965 SC 1413) this Court in  paragraph

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12 of the report observed:

   (12)  Section  201 is somewhat clumsily drafted, but  we think  that  the  expression knowing or  having  reason  to believe in the first paragraph and the expression knows or believes  in  the  second paragraph are used  in  the  same sense.   Take  the  case  of an accused who  has  reason  to believe  than  an offence has been committed.  If the  other conditions  of  the  first paragraph are  satisfied,  he  is guilty  of  an offence under S.201.  If it be supposed  that the  word believes was used in a sense different from  the expression having reason to believe, it would be necessary for the purpose of inflicting punishment upon the accused to prove  that  he believes in addition to having reason  to believe.   We cannot impute to the legislature an intention that an accused who is found guilty of the offence under the first paragraph would escape punishment under the succeeding paragraphs  unless some additional fact or state of mind  is proved.

   In  the matter under consideration death of the deceased was due to homicide and it must have been done either by the accused herself or by some other person, accused has reasons to  know.  On an analysis of evidence, the learned  Sessions Judge  came  to  the conclusion that prosecution  failed  to prove  beyond  reasonable doubt that the accused caused  the death  of the deceased and it is on this score that the High Court came to a conclusion that even if the fatal injury was inflicted  by  somebody  else, the accused is liable  to  be convicted   for  the  offence   under  Section  201.    This observation  of the High Court has been made on the wake  of the  version  of the accused that the deceased committed  or attempted  to  commit  suicide.   Admittedly,  the  deceased Vincent  was  living  in his house with his wife  and  minor child  and  resultantly, therefore, the circumstances  under which  the  deceased  died  would   be  within  the  special knowledge  of  the inmates viz.  wife and the child and  the child  being asleep by reason of the timing of the  incident and  the  only  available option of witnessing  the  action, would  be  the wife and it is this wife who has told  others that  he  was trying to commit suicide by putting a rope  on his  neck  and  while attempting to do so by  reason  of  an effort  to stop the husband from doing so, the latter  falls on the blunt object and hits himself which caused his death. There  can be no doubt that the deceased died on account  of combination  of  injuries  of 6 and 9 as  described  in  the postmortem report.  For convenience sake, the same are noted hereinbelow:

   6.   Lacerated  wound  1.6  cm.  x 1 cm.   x  bone  deep horizontal  on  the middle of upper part of forehead  7  cm. About  root  of nose.  The surrounding scalp  tissues  found contused.   The  outer table of the frontal bone  under  the wound   found  fractured  and   separated  and  produced   a depression  on the bone (1 cm.  x 1 cm.  Size)

   9.   The front aspect of both the frontal lobes of brain showed a laceration of 1 cm.  x 1 cm.  x 1 cm.  size.  There was   subarachinoid   haemorrhage  on   both   the   cerbral haemisphereas.

   It  may  be noted in this context that according to  the accused  version in the statement under Section 313, Vincent

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was  disappointed to see that he was unable to persuade  his wife  to  sign  in  the Agreement for  Sale  of  the  house. Attempt  to  commit suicide by hanging himself on  the  iron beam  fixed  just below the ceiling in the work area of  the house and on the seeing the same, the accused caught hold of his  legs  and since the rope was not tied to his  neck  but tied  to iron beam, Vincent fell down and it is the  accused version  that  when  he  fell down, he  must  have  hit  his forehead  on  some hard object and that is how he  sustained serious  injuries  on  his  forehead.   This  statement  has received the comment of being very clever and attractive but has  been totally disbelieved by the learned Sessions  Judge on scrutiny of the evidence in its entirety.  Significantly, however,  it is to be noted that the defence suggestion that injuries  No.6 and 9 could have been caused when the accused fell  down  with the forehead hitting the hard  object,  was completely  negatived  by  P.W.13 being the doctor  who  has conducted  the  autopsy.  This part of the evidence  of  the doctor, thus negates the defence version of the case that it was an accidental fall which has been the factor responsible for  the  injuries caused to the deceased.  The analysis  of the  evidence  in its entirety as has been effected  by  the learned  Sessions  Judge, could not be found faulted by  the High  Court  and  we also do not intend to record  a  contra finding  disturbing  the concurring finding of  the  learned Sessions  Judge  as also of the High Court in regard to  the failure  of the prosecution to prove that it was the accused who caused the death of the deceased.

   Mr.  Sushil Kumar however, in support of his contentions placed  strong reliance on to the decision of this Court  in Duvvur  Dasratharamareddy v.  State of Andhra Pradesh  (1971 (3)  SCC 247) wherein this Court laid down that if once  the case  of the prosecution regarding the offence of murder  is not  accepted,  it  follows  that the  appellant  cannot  be convicted  for  the  offence under Section  201  IPC  either because  the  evidence  relating to that offence  is  common (vide  paragraph  24 of the report at page 254).  In  Duvvur Dasratharammareddys  case  (supra)  this   Court  had   the following factual backdrop:

   The  appellant was charged of the offence of causing the death  of his father-in-law Adepareddi by beating him with a battle  axe on his head on the night of May 9, 1969 and also for  an offence under Section 201, I.P.C.  by digging a  pit and  burying the dead body and thus causing the evidence  of murder  to disappear.  Though he was convicted also for  the offence  under Section 201, I.P.C., but no separate sentence had  been  passed  as he has been sentenced to  death  under Section  302 I.P.C.  The factual score further disclose that the  deceased Adepareddi was aged about 60 years was  living in  his  village with his wife aged 40 years, two  daughters P.Ws.4  and 5 and two young sons.  One of the cousin brother of  the deceased Shri K .Ramireddi was also living with  the deceased  and had been married to the eldest daughter of the deceased.   The  appellant  as appears used  to  assist  the deceased  in his agricultural operations.  According to  the prosecution,  the appellant was in illicit intimacy with his mother-in-law  and in consequence there was frequent quarrel between  the appellant and his father-in-law, the  deceased. On  May  9,  1989 after some heated exchange of  words,  the deceased  left to sleep in the field as usual which is about 1½  miles from the village.  Shortly after the departure  of the deceased for the field, the appellant requested P.W.1 to accompany  him to the field so that the father-in-law may be

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killed  but on being refused by P.W.1 being a servant of the family  he left the house with the axe alongwith P.W.2 being the  other  servant available in the house.   The  appellant after  going to the field is stated to have given a blow  on the  head  of  the  deceased with the  axe  and  when  P.W.2 attempted to run away from the scene, he was brought back by the  accused with the threat that he will meet the same end. P.W.   2  thereafter  came  back to the scene  and  saw  the appellant  digging  a  pit  and  burying  the  body  of  the deceased.   Both  the appellant and P.W.  2 thereafter  came back  to the house some time in the middle of the night  and put the axe inside the house.  It is a very next day morning that  PW 1 in order to attend to the agricultural operations went  to  the field and found blood near the cot  where  the deceased  used  to sleep and saw a new mound in  the  field. P.W.3  being  the  wife of the deceased after  a  few  days, finding  that  her husband has not come back to  the  house, asked her daughter to write to her uncle in another village, who  came and informed that the deceased has not come to his village.  In the meanwhile rumours afloat that appellant had murdered  his  father-in-law  and buried him in  the  field. Subsequently,  the  village  Munsif   contacted  the  police authorities  who took up the investigations and the body  of the  deceased  was  exhumed  on  July  3,  1969,  with  some injuries.   It  is  on the basis of these facts  and  having regard  to evidence available on record, this Court observed as below:

   25.   Though  normally this Court does not re-  appraise the  evidence,  which has been accepted concurrently by  the two  courts, in view of the strong suspicious circumstances, pointed out above, regarding the truth of the evidence given by  P.W.s1  to  5, we have considered it  necessary  in  the interest   of  justice  to   consider  their  evidence  more critically.

   26.  For the above reasons we are of the opinion that it cannot  be  said  that the prosecution has been  proved  the guilt  of  the  accused  beyond all  reasonable  doubt.   In consequence  the  appeal is allowed.  The conviction of  the appellant  under  Section 302, I.P.C.  and the  sentence  of death imposed for the said offence as well as his conviction for  the offence under Section 201, I.P.C., by the  Sessions Judge, as confirmed by the High Court, are set aside and the accused  is acquitted of those offences.  He shall be set at liberty.

   In  the  contextual  facts, the  situation  however,  is slightly  different  and since the wife alone could  explain the death of the husband in the manner as it is noted above. The  crowbar  was  not available for few days and  it  is  a subsequent  discovery  and on a further search, the  crowbar contained  human  blood which has been proved to be that  of the  deceased.   Both the Sessions Judge and the High  Court have  categorically disbelieved the evidence of the wife and it  is in this regard it cannot but be said that the falsity of  information  given by the accused cannot but  warrant  a punishment  under  Section  201, I.P.C.   since  information regarding  the  offence was available only with the  accused and  there  was a deliberate attempt to screen the  offender from  legal punishment by way of providing false information regarding the offence.

   On  the  wake of the aforesaid, we are unable to  record our concurrence with the submissions of Mr.  Sushil Kumar as

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regards  the conviction for the offence under Section 201 of the  IPC  .  The High Court has been rather lenient  in  the matter  of reducing the sentence but since there is no cross appeal  by the State against the judgment, we do not  intend to proceed with the matter any further, excepting confirming in the contextual facts the judgment of the High Court.  The Appeal   therefore,  fails  and   thus  is  dismissed.   The appellant  be taken into custody forthwith to serve out  the sentence, if not already served.