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PETITIONER: RAM SARAN MAHTO AND ANR.

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT:       08/09/1999

BENCH: M.B.Shah, K.T.Thomas

JUDGMENT:

THOMAS, J.

       Leave granted.

     The  corpse  of a teenaged dame was recovered  from  a well  attached  to  her  nuptial   home.   That  corpse  was consigned to flames without loss of time.  For that incident her  husband Kalpu Mahto and three others stand convicted of the  offence  under  Section 201 of the Indian  Penal  Code; Though the prosecution did not even venture to establish any other  offence  in respect of the death of that young  lady, the  trial court passed a sentence of rigorous  imprisonment for  seven  years  on one of the convicted persons  while  a sentence  of RI for three years was imposed on the remaining convicted  persons.   They  appealed to the  High  Court  of Patna, but failed.

     We cannot comprehend how the Sessions Court could have escalated the conviction to the topmost layer of the offence for  awarding the maximum sentence of imprisonment for seven years as the said upper limit is fixed only for one category of  cases falling under Section 201 IPC.  The Sessions Judge did  not  even  advert  to the possibility  of  the  offence falling  within  the  aforesaid top category though  he  had chosen to award the maximum sentence only to one of the four convicted  persons.  Learned Single of the Patna High  Court while  restating the sentence portion in his judgment  seems to have committed an error in the following manner:

     4By  the  judgment and order the learned  trial  court convicted  the 4 appellants under Section 201 of the  Indian Penal  Code and sentenced them to undergo R.I.  for 7  years each.

     The  aforesaid  error  in the restatement  would  have escaped  the  notice  of the learned Single  Judge,  but  we mention  it  here for averting any possible consequences  on its account.

     Facts of the case are these:  Deceased Asha Kumari was aged  only  18 when she died.  She was given in marriage  to Kalpu  Mahto  (A-2).  While she was living in her  husbands house  A-3-Ram Saran Mahto (a cousin of her husband) dashed- down  to  her parental house during the wee hours  of  11-6- 1986  and  conveyed  the disquieting information  that  Asha

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Kumari  was missing from the house.  Immediately her brother Ram  Balak  Mahto (PW-3) rushed to the marital home of  Asha Kumari on a bicycle, followed by his father (PW-1) on foot.

     PW-3  Ram Balak Mahto could reach the house earlier as he  was  on  a two-wheeler.  In his presence A-3  Ram  Saran Mahto  suggested  that  the  well of  the  house  should  be searched.   When a search was made pursuant thereto the dead body  of  Asha  Kumari was spotted out and  later  that  was winched out of the well.  Thus far the story seems to be, by and large, undisputed.

     Thereafter, Asha Kumaris hushand Kalpu Mahto and some other  peprsons,  who  were closely related to  him,  showed impatience to have the obsequies of the departed soul.  PW.3 only  wanted the cremation to be postponed till the  arrival of  his  father  but that suggestion was spurned  down.   An altercation  would  have followed and a wrangle  was  ensued therefrom.   PW-3 was trussed up and his cycle was  snatched away.   When PW-1 father of Asha Kumari arrived at the place he too was fastened with a tether.  Dead body of Asha Kumari was  then  removed  to the nearby orchard where it  was  set ablaze and cremated.

     PW-1  and PW-3 went to the police station and lodged a complaint.  After investigation the police charge-sheeted 13 persons, including the appellants, for various offences such as  Section  302 read with Sections 34, 201, 342 and 379  of the  Penal  Code.   The trial court came to  the  undisputed conclusion  that prosecution has failed to prove the charge of  commission  of murder.  Nevertheless, learned  Sessions Judge  proceeded to award the sentence under Section 201  of the  Penal  Code  and the only discussion he made  for  that purpose  was on the question whether any one other than  the four  appellants had committed that offence.  After  holding that  none  among them, except the four appellants,  can  be convicted,  learned Sessions Judge proceeded to convict  all the four appellants without even resorting to a one sentence discussion  on  the culpability of the appellants  regarding the said offence.

     Of   course  appellant  Ram   Saran  Mahto  alone  was convicted  under Sections 379 and 342 of the Penal Code also and  he  was sentenced to undergo R.I.  for six  months  and three  months respectively and the High Court has  confirmed the  said conviction and sentence.  We are not dealing  with the conviction and sentence on those two counts as they have not   been  challenged  before   us.   For  convicting   the appellants  under  Section  201 of the  Penal  Code  learned Single  Judge  of the High Court discussed the case only  in the following lines:

     However,  the  learned  trial   court  proceeded   to consider  the evidence on the point of charge under  section 201  I.P.C.  On this point the informant himself came to his sisters  village  and started first and on arrival  at  the village  he  started searching for the sister and  the  dead body  was recovered from a well and when the accused persons were  contemplating to dispose of the dead body he  objected and  then he was overpowered.  His father (R.W.1) Moti Mahto was  also supported the prosecution story on this point that when  he  arrived  subsequently he found  that  the  accused persons  were engaged in burning the dead body.  The  father (P.W.2)  had  arrived  late because he was  going  on  foot; while his son proceeded on a cycle.  It has been stated that

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cycle  of the informant was snatched by the accused persons. Thus, learned trial court held that unless the dead body was burnt  by  the  accused, they could not  inform  the  police station  and  give opportunity to Police to seize  the  dead body  to  hold  postmortem  examination.   It  is  therefore obvious  that the appellants have disposed of the dead  body with a view to suppress the crime.

     In  this case we find it necessary to extract  Section 201 of the Penal Code which is as follows:

     201.   Causing disappearance of evidence of  offence, or  giving  false information to screen offender.-  Whoever, knowing or having reason to believe that an offence has been committed,  caused  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.

     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.   The  two indispensable ingredients for all  the three tiers in Section 201 are:  (1) The accused should have had  the knowledge that an offence has been committed or  at least that he should have had reasons to believe it.  (2) He should  then  have  caused   disappearance  of  evidence  of commission  of that offence.  Prosecution cannot escape from establishing  the  aforesaid  two   basic  ingredients,  for conviction  of  the accused under Section 201.  The  gravest degree  contemplated  in Section 201 is punishable with  the maximum  sentence  of  imprisonment for  seven  years.   The minimum  requirement for the offence to reach the said  peak degree is that the offender should have caused disappearance of  evidence  of  another offence which is  punishable  with death,  and  that should be established in addition  to  the above-mentioned  two  basic  ingredients.  Even if  the  two basics  are  established,  and  the  prosecution  failed  to

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establish  the next requirement the court cannot convict the accused for the highest tier specified in the section.

     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.   Nonetheless,  it  is imperative  that  prosecution  should have  established  two premises.   First is that an offence has been committed  and second  is that the accused knew about it or he had  reasons to  believe  the commission of that offence.  Then and  then alone  the  prosecution can succeed, provided the  remaining postulates of the offence are also established.

     The  above  position has been well stated by a  three- Judge  Bench  of this Court way back in 1952,  in  Palvinder Kaur v.  The State of Punjab (AIR 1952 SC 354):

     In  order to establish the charge under s.201,  Penal Code,  it  is  essential to prove that an offence  has  been committed,  mere suspicion that it has been committed is not sufficient  - that the accused knew or had reason to believe that  such offence had been committed and with the requisite knowledge  and  with the intent to screen the offender  from legal punishment causes the evidence thereof to disappear or gives  false information respecting such offences knowing or having reason to believe the same to be false.

     It  is  well to remind that the Bench gave a  note  of caution  that the court should safeguard itself against  the danger of basing its conclusion on suspicions however strong they  may  be.   In  Kalawati and anr.   v.   The  State  of Himachal Pradesh (1953 SCR 546) a Constitution Bench of this Court  has, no doubt, convicted an accused under Section 201 IPC  even  though  he  was acquitted of  the  offence  under Section  302.  But the said course was adopted by this Court after   entering  the  finding   that  another  accused  had committed  the  murder  and   the  appellant  destroyed  the evidence  of  it  with full knowledge thereof.  In  a  later decision in Nathu and anr.  v.  State of Uttar Pradesh {1979 (3)  SCC574}  this  Court has repeated the  caution  in  the following words:  Before a conviction under Section 201 can be  recorded,  it must be shown to the satisfaction  of  the court that the accused knew or had reason to believe that an offence  had  been committed and having got this  knowledge, tried to screen the offender by disposing of the dead body.

     In  this context a reference to a more recent decision of this Court would be apposite.  The following observations of  the  Bench in Hanuman and ors.  v.  State  of  Rajasthan {1994 Supple.  (2) SCC 39} are relevant:

     The  mere  fact that the deceased allegedly  died  an unnatural  death  would  not be sufficient to bring  home  a charge  under  Section 201 IPC, unless the  prosecution  was further  able to establish that the accused persons knew  or had  reason  to believe that an offence had been  committed, causing  the  evidence of the commission of the  offence  to disappear.

     In  the  present case, all that the prosecution  could establish  was  that dead body of Asha Kumari was  recovered

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from  the well situated in the compound of her marital  home and  that the cremation was hurried through after physically keeping  her  kith and kin away from the scene.   No  doubt, such a culpable hurry enkindles fumes of suspicion which can be  regarded as an incriminating circumstance against  those who  showed  such  a haste.  But  that  circumstance  stands isolated and unconcatenated with any other circumstance.

     Prosecution  has not even attempted to show, much less prove,  that  any offence has been committed by any  one  in respect  of the death of Asha Kumari, which should have been the  foundation  for establishing the offence under  Section 201 IPC.  It now stands as an unfounded conviction and hence we  have to interfere.  We, therefore, allow this appeal and set  aside  the  conviction  and   sentence  passed  on  the appellants.   They are acquitted.  We direct the  appellants to  be set at liberty forthwith unless they are required  in any other case.