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CASE NO.: Appeal (crl.)  407 of 2001

PETITIONER: State of Karnataka

RESPONDENT: Madesha and Ors

DATE OF JUDGMENT: 01/08/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the order passed by a  Division Bench of the Karnataka High Court directing  acquittal of the respondents.  

2.      In this appeal, a notice limited to applicability of Section  201 of the Indian Penal Code, 1860 (in short the ’IPC’) was  issued by this Court. The High Court came to the conclusion  that Section 201 IPC can only be applied to situations wherein  an offence has taken place and the accused did some act  towards screening the offenders and more importantly  destroying or tampering with the evidence. When no offence  was established to have been committed, Section 201 will not  be applicable.  

3.      This Court had occasion to deal with such plea. In V.L.  Tresa v. State of Kerala (2001 (3) SCC 549) it was noted as  follows:

"9.     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 Kalwati case  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 woken  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, Kalawati’s  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,

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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 borderline 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 Section 201 Penal  Code, as the learned Sessions Judge  did."

               xx              xx              xx

               11. Section 201 IPC reads as below: "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,  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."

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

(I)     commission 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 1PC 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.

       xx              xx              xx              xx

14. 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 foremost 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. Further, in Roshan  Lal v. State of Punjab, this Court in AIR para  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 that an  offence has been committed. If the  other conditions of the first  paragraph are satisfied, he is guilty  of an offence under Section 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."

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4.      The position was re-iterated in Sou. Vijaya @ Baby v.  State of Maharashtra (2003 (8) SCC 296) as follows:

"6.     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.

7.      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".  

5.      In this case, however, there was no evidence on record to  attribute knowledge of the commission of offence to the  accused. Therefore, it was held that Section 201 IPC cannot be  applied.  

6.      Learned counsel for the State has submitted that  evidence of PW-26 establishes that the accused persons A-3  and A-4 had thrown the body of the deceased to fire.  It was  submitted that there was no question of exercising the right of  private defence vis-‘-vis the deceased and, therefore, the order  passed by the High Court cannot be maintained.  

7.      Learned counsel for the respondents on the other hand  supported the order of acquittal. 8.      Coming to the question whether the plea relating to  exercise of right of private defence can be made available vis-‘- vis the deceased who had no role to play in the dispute, the  provisions of Section 106 IPC needs to be noted.  It reads as  follows:

"106-Right of private defence against deadly  assault when there is risk of harm to innocent  person- If in the exercise of the right of private  defence against an assault which reasonably  causes the apprehension of death, the  defender be so situated that he cannot  effectually exercise that right without risk of  harm to an innocent person, his right of  private defence extends to the running of that

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risk."           

9.      Therefore, the possibility of the right of private defence  vis-‘-vis the deceased has to be considered in the background  of what was stated in Section 106 IPC. It has been held that   A-1 to A-5 were not the members of any unlawful assembly. A  specific stand was that A-3 and A-4 had thrown the body of  the deceased to fire and reliance was placed on the evidence of  PW-26.   

10.     It is to be noted that there can be no dispute that   Section 201 would have application even if the main offence is  not established in view of what has been stated in V.L. Tresa’s  and Sou. Vijaya’s cases (supra). PW-26 who was the star  witness was not believed by the trial Court and the High Court  and it was held that his evidence was not cogent and credible.   Therefore, while clarifying the position in law we find no scope  for interference with the order of the High Court in view of the  specific findings recorded regarding the role played by A-3 and  A-4.  

11.     The appeal fails and is dismissed.