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CASE NO.: Appeal (crl.)  901 of 1996

PETITIONER: Sou. Vijaya Alias Baby                                   

RESPONDENT: Vs. State of Maharashtra                                             

DATE OF JUDGMENT: 03/09/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

                Appellant-Vijaya faced trial along with her brother Nepalchandra  for alleged commission of offences punishable under Sections 302, 304- B, 498-A and 201 of the Indian Penal Code, 1860 (for short ’IPC’). The  II Additional Sessions Judge, Bhandara, acquitted the appellant of  offences relatable to Sections 302, 304-B, 498-A, but held her guilty  for offence punishable under Section 201 IPC and sentenced her to  undergo RI for five years. Her brother (hereinafter described as  ’accused no.1 or A-1’) was found guilty of offence punishable under  Sections 302 and 201 IPC and was sentenced to undergo imprisonment for  life and five years respectively.  The High Court of Judicature at  Bombay, Bench at Nagpur, dealt with the appeals filed by the appellant  (hereinafter described as ’accused no.2 or A-2’).  Both the appeals  were dismissed.  We are informed that the SLP filed by A-1 has also  been dismissed by this Court.   

The accusations which led to trial of both the accused-appellants  are essentially as follows:

Usha (hereinafter described as ’deceased’) was married to A-1 on  16.5.1989. She came to the house of her parents on 18.5.1989 and  remained there upto 4.6.1989. Thereafter the deceased was brought to  the house of A-1. On 24.6.1989, father of the deceased came to know  that she has been burnt to death.  Though A-1 gave out that case was  one of suicide. Father of the deceased did not believe it and lodged  information with police. Investigation was undertaken and charge sheet  was placed charging both the accused-appellants for offences as noted  above. At this point it is to be noted that A-2 was given on marriage  on 15.5.1989 and had come to her brother A-1 house. Thereafter the  prosecution brought materials on record to the effect that deceased and  A-1 were sleeping in one room and formers’ dead body was found in the  Kitchen. The Trial Court analysed the evidence on record to conclude  that part played by both A-1 and A-2 immediately after the incident,  and giving wrong information that the deceased had committed suicide  clearly established that both were guilty. They also gave false  information to the police immediately, as well as the parents of the  deceased and other relatives later about the incident and that  attracted Section 201 IPC. It was further concluded that both the  accused actively participated in causing disappearance of evidence,  having known that murder of the deceased has been committed, in order  to protect themselves from legal punishment. They tried to project as  if there was a suicide.  It analysed in detail the evidence so far as

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the role of A-1 is concerned.  In appeal, unfortunately, the High Court  did not deal with Section 201 IPC specifically and even did not discuss  the evidence and came to the conclusion that since both the accused  persons were present at the relevant time in the house, disappearance  of evidence is the act of both the accused. With this observation the  appellant A-2’s appeal was dismissed.

In support of the appeal Mr. U.R. Lalit, learned senior counsel  submitted that the ingredients of Section 201 IPC are absent.  The  charge as framed was that the appellant has caused certain evidence of  the said offence (murder of Ushabai) to disappear. Section 201  according to him consists of two parts i.e. (1) causing disappearance  of evidence; (2) giving false information to screen offender.  

Admittedly the A-2 was sleeping in a different room. Since the  death was by burning, the question of causing disappearance of evidence  does not arise, in view of her acquittal relating to offence under  Section 302 IPC.  A-2 had no role to play in the murder of the  deceased.  That being so, the conviction is unsustainable.            Per contra, learned counsel for the State submitted that the High  Court has endorsed view of the Trial Court, which analysed the  evidence. This is clearly a case where Section 201 has application.  Reference is made to a decision of this Court in V.L. Tresa vs. State  of Kerala (2001(3) SCC 549) to contend that even if an accused is  acquitted of offence relatable to Section 302 IPC, yet conviction under  Section 201 is permissible.

Section 201, IPC presents a case of accusations after the fact.  "An accessory after the fact" said Lord Hale, "may be, where a person  knowing a felony to have been committed, receives comforts, or assists  the felon.  (See 1 Dale 618).  Therefore, to make an accessory ex post  facto it is in the first place requisite that he should know of the  felony committed. In the next place, he must receive, relieve, comfort,  or assist him. And, generally any assistance whatever given to a felon  to hinder his being apprehended, tried or suffering punishment, makes  the assister an accessory.  What Section 201 requires is that the  accused must have had the intention of screening the offender. To put  it differently, the intention to screen the offender, must be the  primary and sole object of the accused.  The fact that the concealment  was likely to have that effect is not sufficient, for Section 201  speaks of intention as distinct from a mere likelihood.   

Section 201 punishes any person, who knowing that any offence has  been committed, destroys the evidence of that offence or gives false  information in order to screen the offender from legal punishment.   Section 201 is designed to penalize "attempts to frustrate the course  of justice".   

Section 201 deals with the following two types of offences :-

(1)     Where the offender causes the evidence of the commission of  the offence to disappear. (2)     Where the offender gives any information respecting the  offence which he knows or believes to be false.

The ingredients of offence under Section 201 are â\200\223

(i)     that an offence has been committed, (ii)    that the accused knew or had reason to believe the  commission of such an offence, (iii)that with such knowledge or belief he â\200\223 (a)     caused any evidence of the commission of that offence  to disappear, or (b)     gave any information relating to that offence which

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he then knew or believed to be false. (iv)    that he did so as aforesaid with the intention of screening  the offender from legal punishment.

On applying the aforesaid legal principles to the factual  scenario it is clear that the prosecution has not established the  essential ingredients.  The decision relied upon i.e. V.L. Tresa  (supra) by the respondent-State is really of no assistance to it.   There is no quarrel with the legal principle that notwithstanding  acquittal with reference to offence under Section 302 IPC, conviction  under Section 201 is permissible, in a given case.  In the present case  in addition to the fact that the appellant A-2 has been acquitted of  the charges relating to Section 302 IPC, there is no material to bring  in application of Section 201 by attributing knowledge of the  commission of the offence to her. It is rightly contended by Mr. Lalit  that the charges framed were for causing disappearance of evidence.  Though in a given case defective charge does not vitiate trial in terms  of Section 464 of the Criminal Procedure Code 1908, (for short ’the  Code’) where the omission is vital and even the substance of  accusations is totally different from what is sought to be established  by the prosecution, and there is no evidence on record to attribute  knowledge of commission of the offence by the other accused that can be  an additional factor for acquitting the accused.  Looked at from any  angle conviction of the appellant-accused A-2 cannot be maintained and  is set aside. The appeal is allowed. The bail bonds are cancelled.