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CASE NO.: Appeal (crl.)  1203 of 2006

PETITIONER: SUKHRAM

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 17/08/2007

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T

D.K. JAIN, J.:

1.      This appeal under Section 2(a) of the Supreme   Court (Enlargement of Criminal Appellate Jurisdiction)  Act, 1970 has been preferred by Sudhakar, the husband  of the deceased, Meerabai and Sukhram, her father-in- law (hereinafter referred to as appellants A-1 and A-2  respectively) against the common judgment of the High  Court of Judicature at Bombay, Nagpur Bench, Nagpur  passed in Cross Criminal Appeals No. 201 of 1995 and  301 of 1995 respectively filed by the said appellants,  challenging their conviction and sentence under Section  304-B, 498-A read with Section 34 of the Indian Penal  Code (for short \021IPC\022) and by the State challenging their  acquittal for the offences punishable under Section 302  and 201 read with Section 34 IPC.  By the impugned  judgment, while allowing both the appeals, the High  Court has set aside the conviction of both the appellants  under Sections 304-B, 498-A read with Section 34 IPC  but has found both of them guilty and convicted them for  having committed offences punishable under Sections  302 and 201 read with Section 34 IPC.  Each of the  appellant has been sentenced under Section 302 read  with 34 IPC to suffer imprisonment for life and to pay fine  of Rs.1000/- each and under Section 201 read with 34  IPC, each of them has been sentenced to undergo  imprisonment for five years and to pay a fine of Rs.500/-,  with default stipulations. 2.      We may note at the outset that despite  opportunities, appellant A-1 failed to surrender and  consequently vide order dated 10th November, 2006 his  appeal was dismissed.  Therefore, we are required to  consider the appeal filed by A-2. 3.      Marriage between appellant A-1 and the deceased  was solemnized on 21st April, 1986. At the time of  marriage some amount in cash, a gold ring and other  articles are stated to have been given by way of dowry.  It  is alleged that not being satisfied with the same, the  appellants started ill treating her, and further appellant  A-2 had an evil eye on the deceased and he insisted that  she should have illicit relations with him which, she  resisted.  She is stated to have complained to her  parents, brother and other relatives about the ill  treatment.

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4.      On 18th February, 1987, the deceased was reported  to be missing.  The appellants searched for her and found  her body in a nearby well.  Appellant A-2 registered a  report at the police station. On receipt of the information,  the then P.S.I. conducted enquiry; visited the place of  incident i.e. the well wherefrom the body of the deceased  was retrieved; drew panchnama and sent the dead body  of Meerabai for post mortem examination.  Investigations  were taken over by PW-14, who recorded the statements  of various persons; conducted house search of the  accused but nothing incriminating was found; prepared  spot panchnama and seized certain articles from the  brother of the deceased (PW-13).  In the meantime, Bisan  (PW-6), father of the deceased and other relatives reached  deceased\022s place and lodged a complaint at the police  station, suspecting that his daughter had been killed by  the appellants and then thrown in the well.  Post mortem  report was received on 19th February, 1987, in which the  cause of death was mentioned as Asphyxia due to  throttling and smothering and not due to drowning.  On  receipt of the report and after collecting evidence, an FIR  was registered against the accused under Sections       498-A, 302, 201 read with Section 34 IPC and both the  accused were arrested. On completion of the  investigation, charge-sheet was filed against the accused  in the Court of Judicial Magistrate, who in turn  committed the case to the Sessions Court.  5.      Both the accused were charged for having subjected  the deceased to cruelty and harassment in furtherance of  the common intention with a view to coerce her or her  brother to satisfy unlawful demand of dowry and thereby  committed an offence under Section 498-A IPC.  A-1 was  also charged with throttling the deceased in between the  night of 17th and 18th February, 1987 and caused her  death otherwise than under normal circumstances,  within seven years of her marriage and soon before her  death, she was subjected to cruelty or harassment by  him, thereby committing an offence punishable under  Section 304-B IPC.  A-1 was also charged for having  committed murder of Meerabai, thereby committing an  offence under Section 302 IPC.  Both A-1 and A-2 were  charged for having caused disappearance of evidence  connected with the offence of murder, punishable with  life imprisonment, by throwing the body of the deceased  in the well with the intention to screen the offender from  legal punishment and thereby committed an offence  punishable under Section 201 IPC read with Section 34  IPC.  The accused pleaded not guilty and claimed trial.   6.      The prosecution examined a number of witnesses to  prove its case which mainly included panch witnesses  concerned with various panchnamas, relatives of the  deceased, her mother-in-law (PW-12) and the neighbour.   In their statements recorded under Section 313 of the  Code of Criminal Procedure, the accused denied the  commission of the offence.  Their plea in defence was that  of alibi, claiming that on the fateful night they had gone  to their fields.  It was only on the next day in the morning  that they learnt that the deceased was not in the house;  they searched for her and found her body in the well.   Appellant A-2 reported the matter to the police, inter alia,  stating that he had learnt that on the previous night the  deceased had a quarrel with one Shrawan Thakare, who  was staying in their house as a guest and had an evil eye  on her.  On conclusion of the trial, the Trial Court found  that there was no eye-witness to the incident and,

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therefore, the case of the prosecution rested only on  circumstantial evidence.  It was observed that although  Indira Kisan Tiwade (PW-11) and Bhagirathabai (PW-12),  sister and mother of the appellant, A-1, respectively were  in the house, but they had not uttered anything against  A-1.  On the contrary they had tried to implicate one  Shrawan who had come to their house as a guest.  They  also denied having seen the appellants throttling the  neck of the deceased and that she was crying.  Both the  said witnesses were declared hostile.  Nevertheless, the  Trial Court observed that there were two circumstances  against appellant A-1, namely, (i) motive and (ii) last seen  together.   7.      Referring to the statement of PW-12, wherein she  had said that \023accused No.1 and deceased, Meerabai  were sleeping in one room and we were sleeping in the  other room,\024 the Trial Court observed that the  circumstances put forth by the prosecution may lead to  inference that Meerabai\022s death might have been caused  by appellant A-1 but they are not sufficient for convicting  him for the offence of murder.  However, relying on the  evidence of the father (PW-6); mother (PW-10); sister (PW- 7) and cousin (PW-5) of the deceased, the Trial Court  came to the conclusion that Meerabai was subjected to  cruelty on account of demand for dowry, the motive for  causing the death stood proved and that the  circumstance of being last seen together alone in the  company of appellant A-1 also stood proved.  The Trial  Court, thus, held that the prosecution was able to  establish that deceased was ill treated and harassed on  account of demand of dowry and she died within a very  short span of ten months of the marriage. Therefore, the  appellants had committed offences, punishable under  Sections 304-B and 498-A read with Section 34 IPC.  The  Trial Court also held that there was no evidence to show  that the body of the deceased was thrown in the well  either by appellant A-1 or A-2 or both of them and,  therefore, offence under Section 201 IPC was not proved. 8.      As noted above, both the appellants as well as the  State preferred appeals to the High Court against the  said verdict of the Trial Court.  On going through the  evidence, the High Court found that the allegations as  regards demand of Rs.500/- and that appellant A-2 had  an evil eye on the deceased was a material improvement  made by all the witnesses in their evidence before the  court; on which they were confronted with their  statements under Section 161 of Cr.P.C.  The High Court  held that the prosecution had not been able to establish  the charge against both the appellants for having  committed offences under Sections 498-A, 304-B IPC  and, therefore, the Trial Court was not justified in  convicting them for these two offences.  However, the  High Court noted that from the evidence of PW-12 it was  borne out that on the fateful night both the accused, the  deceased and PW-12 were present in the house; though  this witness did not wholeheartedly support  prosecution\022s case, but she had in her evidence admitted  that on the fateful night they were present in the house.   The High Court observed that the factum of the deceased  residing with her husband and in-laws on the fateful  night stood established by the evidence of PW-12, who  had also admitted her own presence in the house, which  was quite natural being the wife of appellant A-2.   Relying on the said evidence, the High Court felt that by  this evidence, the prosecution has established that

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appellant A-1 and the deceased were sleeping together in  one room on the fateful night which was specifically  denied by appellant, A-1, who had taken the plea that he  and his father had gone to the field and his maternal  uncle was a guest in the house and his mother was also  in the house.  According to the High Court, evidence of  PW-12 by itself was sufficient to establish the fact that  both the appellants were present in the house.  As  regards the cause of death, the High Court relied on the  evidence of PW-8, who had performed the post mortem  on the dead body and had found multiple bruises on  both sides of the neck; bruises on nose and lips and  rupture of carotid. According to the opinion of PW-8, the  injuries were anti mortem and the deceased had died due  to throttling and not for any other reason.  Relying on the  evidence of    PW-8 and the Investigating Officer (PW-16),  the High Court came to the conclusion that the  appellants had opportunity to commit the crime.  The  High Court was of the view that the fact that the  deceased was throttled to death and then thrown in the  well, read with established circumstances that on the  fateful night she was sleeping in the room along with her  husband and even appellant A-2 was present in the  house, to which there was no explanation given by both  the appellants, the chain of circumstances stood  completed.  According to the High Court, all these facts  taken together were conclusive to establish that it was  the appellants who in furtherance of their common  intention had committed murder of deceased Meerabai by  throttling her to death and then thrown her dead body in  the well so as to cause disappearance of evidence.   Consequently, as noted above, both the appellants were  convicted for having committed offences punishable  under Sections 302 and 201 read with Sections 34 IPC  and were sentenced as aforementioned.  Hence the  present appeal by the appellants. 9.      Learned counsel appearing on behalf of the  appellant submitted that the High court committed  serious error in holding appellant, A-2 guilty of  commission of offences under Sections 302 and 201 IPC,  particularly when there was no specific charge against  him under Section 302 of IPC.  In so far as the offence  under Section 201 is concerned, it is urged that the High  Court again erred in holding that the said offence stood  established by the evidence of PW-12.  It is submitted  that even if a part of the testimony of PW-12 is held to be  reliable, at best it gives rise to a suspicion about the  presence of A-2 in the house and no more.  It is asserted  that except for the aforenoted statement of PW-12, which  has otherwise been discarded by the Trial Court and the  High Court, there is not even an iota of evidence to show  that appellant A-2 knew or had reason to believe that  appellant A-1 had committed an offence.  Learned  counsel has also argued that the High Court has neither  recorded any reason nor analysed the evidence adduced  by the prosecution and thus, grievously erred in  reversing the finding recorded by the Trial Court to the  effect that ingredients of Section 201 of IPC had not been  proved against the said appellant. 10.     Learned counsel for the State, on the other hand,  supported the view taken by the High Court. 11.     We have perused the Trial Court\022s record.  We find  that though charge for offence punishable under Section  302 of IPC had been framed against appellant A-1, no  such charge was framed against appellant A-2, even with

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the aid of Section 34 IPC.  The only charge framed  against A-2 was for an offence punishable under Section  201 read with Section 34 of IPC.  True that Section 222  Cr.P.C. clothes the Court with the power to convict a  person of an offence which is minor in comparison to the  one for which he is charged and tried, but by no stretch  of imagination, offences under Sections 304-B and 498-A  IPC, under which appellant A-2 was convicted by the  Trial Court, could be said to be minor offences in relation  to that under Section 201 IPC, for which he was charged.   In fact, the three offences are distinct and belong to  different categories.  The ingredients of the offences  under the said Sections are vastly different.  Therefore,  Section 222 Cr.P.C. had no application on facts in hand. 12.     At this junction, we may also note that conviction of  appellant A-2 by the High Court under Section 302 IPC  cannot also be held to be valid when tested on the  touchstone of the provision contained in Section 464(2)(a)  Cr.P.C.   If it was convinced that a failure of justice had,  in fact, been occasioned, the High Court was required to  follow the procedure laid down in the Section, which was  not done.  That apart, even on the proven facts on record,  a case for conviction under Section 302 IPC was not  made out against the said appellant. 13.     Bearing in mind this factual and legal backdrop, we  are of the opinion that the High Court was not justified in  convicting appellant A-2 for having committed a major  offence punishable under Section 302 IPC.  Nonetheless,  it is well settled that notwithstanding acquittal of the said  appellant of the offence under Section 302 IPC, his  conviction under Section 201 IPC is still permissible.  (See: Constitution Bench decision in Smt. Kalawati &  Anr. Vs. The State of Himachal Pradesh ). Therefore,  the question that remains to be examined is regarding  the correctness of the conviction of appellant, A-2 for  offence under Section 201 IPC. 14.     Section 201 IPC reads as follows: \023201. Causing disappearance of  evidence of offence, or giving false  information to screen offender.\027 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

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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.\024

15.     The first paragraph of the Section contains the  postulates for constituting the offence while the  remaining three paragraphs prescribe three different tiers  of punishments depending upon the degree of offence in  each situation.  To bring home an offence under Section  201 of IPC, the ingredients to be established are: (i)  committal of an offence; (ii) person charged with the  offence under Section 201 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 bring home an offence under  Section 201 IPC, 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.   16.     In Palvinder Kaur Vs. The State of Punjab (Rup  Singh-Caveator)  this Court had said that in order to  establish the charge under Section 201 IPC, it is  essential to prove that an offence has been committed;  that the accused knew or had reason to believe that such  offence had been committed; with requisite knowledge  and with the intent to screen the offender from legal  punishment, caused the evidence thereof to disappear or  gave false information respecting such offence knowing or  having reason to believe the same to be false. It was  observed that the Court should safeguard itself against  the danger of basing its conclusion on suspicions,  however, strong they may be. (Also See: Suleman  Rehiman Mulani & Anr. Vs. State of Maharashtra ,  Nathu & Anr. Vs. State of Uttar Pradesh , V.L. Tresa  Vs. State of Kerala ).  17.     In the present case, indubitably there is no eye  witness and the prosecution had sought to establish the  case against the appellants from circumstantial evidence.  It is trite to say that in a case based on circumstantial  evidence, the circumstances from which the conclusion  of guilt is to be drawn have not only to be fully  established but all the circumstances so established  should be of conclusive nature and consistent with the  hypothesis of the guilt of the accused.  Moreover, all the  established circumstances should be complete and there  should be no gap in the chain of evidence.  Therefore, the  evidence has to be carefully scrutinized and each  circumstance should be dealt with carefully to find out  whether the chain of the established circumstances is  complete or not. (See: Dhananjoy Chatterjee Alias

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Dhana Vs. State of W.B.) .  It also needs to be  emphasized at this stage itself that in a case based on  circumstantial evidence motive assumes great  significance inasmuch as its existence is an enlightening  factor in a process of presumptive reasoning.   18.     In the present case, the motive was alleged to be the  greed for dowry and desire of appellant A-2 to have illicit  relationship with the deceased, which theory, as noted  above, has been rejected by the High Court while  acquitting the appellant for offences under Sections     304-B and 498-A IPC.  Therefore, there is no gainsaying  that the prosecution failed to establish the existence of a  motive.  It is in this background that it has to be  examined whether the evidence and the circumstances  relied upon by the High Court while recording the  conviction of appellant A-2 are consistent with the  hypothesis of the guilt of the said appellant. 19.     The sole reason given by the High Court for holding  appellant A-2 guilty of offence under Section 201 of IPC is  the circumstance flowing from the evidence of PW-12,  wherein she had stated that: \021Accused No.1 and the  deceased Meerabai were sleeping in one room and we  were sleeping in the other room\022.  Undoubtedly, the  mainstay of the prosecution case was the testimony of  PW-12. There is absolutely no other evidence or  circumstance attributing to A-2, the knowledge of the  commission of offence in respect of his daughter-in-law,  Meerabai.  Merely because he happened to be father of  appellant A-1, it cannot be presumed as a matter of legal  proof that he must be deemed to have the knowledge of  the offence committed by his son.  Even if the evidence of  PW-12 is taken at its face value, though the witness was  declared hostile and had been cross examined by the  prosecution counsel, mere presence of the appellant, A-2  in the house, in our opinion, is not sufficient to draw a  presumption that he had the knowledge of commission of  offence by his son, appellant, A-1.  There is no other  established circumstance to complete the chain to bring  home the offence under Section 201 IPC.  We are of the  view that the prosecution has failed to establish that the  conduct of appellant A-2, both at the time of the  occurrence and immediately thereafter, is consistent with  the hypothesis of his guilt.  We have therefore, no  hesitation in holding that the learned Judges of the High  Court were in error in convicting appellant A-2 for having  committed offences punishable under Sections 302 and  201 IPC. 20.     In the light of the above discussion, conviction of  appellant A-2 (Sukhram) cannot be sustained.   Accordingly, we allow the appeal to the extent it pertains  to appellant, A-2 and set aside the conviction and  sentence passed on him.  He shall be set at liberty  forthwith unless required in any other case.