High Court

Legal Reasoning

{1} CRI APPEAL 111 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 111 OF 20041.Neelkanth s/o Sadashiv Deshmukh Age: 26 yrs., Occu.: Agri.2.Aashabai w/o Sadashiv DeshmukhAge: 57 yrs., Occu.: Household.3.Sadashiv s/o Vishnu DeshmukhAge: 61 yrs., Occu.: Agri.All R/o. : At post Sukali, Tq.Shevgaon,Dist.Ahmednagar. (As per Court order dated 02-05-2013, appeal is abated as against Appellantno.3)...Appellants Versus.The State of Maharashtra ...Respondent …..Advocate for Appellants : Ms.Shilpa Aurangabadkar h/f. Mr.Satej S.Jadhav APP for Respondent : Mr.K.K.Naik….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 19 JULY, 2024 PRONOUNCED ON : 09 AUGUST, 2024 JUDGMENT :- 1.Appellants herein assail judgment and order passed by I Ad-hoc Additional Sessions Judge, Ahmednagar in Sessions Case no.131 {2} CRI APPEAL 111 OF 2004of 2002 recording guilt and conviction of the appellants for offenceunder Section 201 read with 34 of the Indian Penal Code (IPC).2.It is to be mentioned here that during pendency of the appeal,appellant no.3 namely Sadashiv s/o Vishnu Deshmukh, who isoriginal accused no.4, died, therefore, by order of this Courtdated 02-05-2013, appeal stood abated against him. Consequently,appeal of only appellant nos.1 and 2 has now remained forconsideration. IN NUTSHELL PROSECUTION CASE 3. Deceased Anita, daughter of informant PW1 Dada, wasmarried with appellant no.1 and she went to cohabit with husbandand in-laws. Everything was smooth for a period of one year.Thereafter, son-in-law i.e. appellant no.1 put up demand ofRs.35,000/- for setting up T.V. shop for his younger brother at villageMahi-Jalgaon. In the backdrop of such demand, there was mal-treatment to Anita. When informant went and even when Anitacame for festivals, she reported about above demand and ill-treatment to informant. At 09:00 p.m. on 12-05-2002 information was received thatAnita was sick and admitted in the hospital. Informant and all {3} CRI APPEAL 111 OF 2004relatives reached village Sukali i.e. where accused resided. Onreaching, they were informed that Anita died and her funeral wasalso over. Therefore, on the next day, informant approachedShevgaon Police Station and lodged report, on the strength of whichcrime was registered bearing no.65 of 2002 against husband and in-laws for offence under Sections 498-A, 304-B, 201, 306, 34 of theIPC. PW5 Bahure (PI), who was entrusted with investigation,carried out the same and chargesheeted accused, who were tried by IAd-hoc Additional Sessions Judge, Ahmednagar vide Sessions Case131 of 2002 for offence u/s 498-A, 304-B, 306, 201 read with 34 ofIPC.Prosecution adduced evidence of in all five witnesses. Defencealso adduced evidence of one witness. On appreciating oral and documentary evidence, learned trialJudge reached to a conclusion that prosecution failed to establish thecharges against appellants for offence under Sections 498-A, 304-B,306 read with 34, however, guilt was recorded for commission ofoffence under Section 201 read with 34 of the IPC and accordingly,present appellants were convicted and sentenced to suffer rigorousimprisonment for two years and to pay fine. {4} CRI APPEAL 111 OF 2004Above judgment is taken exception to by filing instant appealon various grounds. SUBMISSIONSOn behalf of appellants :4. Learned counsel for appellants pointed out that prosecutionhas miserably failed to establish its case and charges by adducingcogent, reliable and trustworthy evidence. She pointed out thatthough there was charge of offence under Sections 498-A, 304-B,306 read with 34 alongwith charge of 201 of the IPC, learned trialCourt had already acquitted appellants and accused no.4 from suchcharges, but has held appellants guilty for offence under Section 201read with 34 of the IPC. She would strenuously submit that maincharges for which appellants were tried were not proved i.e. 498-A,304-B as well as 306 of the IPC, therefore, she questions theconviction of appellants for offence under Section 201 of the IPC asaccording to her, there was no direct or circumstantial evidence.5.According to her, prosecution version is false, fabricated andafterthought. Learned Counsel took this Court through thetestimonies of father and brother of deceased and would submit thatspecific defence of accused is that deceased Anita was suffering from {5} CRI APPEAL 111 OF 2004incurable disease. She was treated for the said ailment. Thattreating Doctor has been examined and therefore, death of Anita wassolely due to illness and ailment and therefore, no offence wascommitted or even made out. She pointed out that when offence isnot shown to be committed, where is the question of recording guiltfor causing disappearance of evidence for the offence which at all isnot proved to be committed. According to learned Counsel, there isimproper appreciation of evidence and non-consideration of legalrequirements by the learned trial Judge. 6.Learned Counsel also pointed out that testimonies of informantfather and brother of deceased are full of material omissionsrendering the prosecution version doubtful. According to her,witnesses are not consistent or lending support to each other andtherefore, learned trial Court has rightly discarded the prosecutionversion on main charges of Section 498-A, 304-B, 306 read with 34of the IPC.7.Lastly, she submitted that even essential ingredients forattracting charge of Section 201 of the IPC are not available onrecord. That informant father and brother of deceased, in theirsubstantive evidence, admitted that information of admission of {6} CRI APPEAL 111 OF 2004Anita in hospital was conveyed to them. That they all had reachedlate night. That they had attended the last rituals, though theydenied it in the witness box. There was no suppression of anyinformation and when no offence is shown to be committed, learnedCounsel questions the conviction and prays to interfere by allowingthe appeal. On behalf of State :8.Per contra, learned APP supported the conviction by submittingthat though in trial Court prosecution failed to establish charge ofSections 498-A, 304-B or 306 read with 34 of the IPC, he submittedthat there is deliberate with-holding of information relating to deathof Anita i.e. from parents. According to learned APP, to savethemselves, last rituals are hurriedly performed. Therefore, it is hissubmission that required ingredients for attracting second limb of201 are available in the evidence and therefore, learned trial Courtcommitted no error in recording guilt for offence under Section 201read with 34 of the IPC and so he prays to dismiss the appeal. PROSECUTION EVIDENCE ON RECORD9.In support of its case, prosecution has adduced evidence of fivewitnesses. Sum and substance of their evidence is as under : {7} CRI APPEAL 111 OF 2004PW1 Dada Anna Kale / informant father deposed at exh.27that, after marriage, his daughter Anita went to reside with herhusband and in-laws at village Sukali, Tq.Shevgaon. That she wastreated properly for one year, but thereafter, appellant no.1 - son-in-law put up demand of Rs.35,000/- for starting T.V. shop for hisyounger brother. That as informant refused to comply, husband,sister-in-law started ill-treating Anita. That during Panchami festival,when Anita came to maternal home and went back to accused, shewas not allowed to reside in the house. That during marriage ofcousin brother-in-law of Anita, accused husband demandedRs.20,000/-, which was assured to be thought over on consultationwith son. That five days after the demand, news that Anita was sickand hospitalized was received and when informant and othersreached at around 01:45 a.m., they were told that Anita has expiredand even funeral is over and therefore, on the next day he lodgedreport. PW2 Vishwanath Ramrao Pawar, Pancha to spot panchanamaexh.30 deposed about panchanama being drawn in his presence on15-05-2002 in house of accused. {8} CRI APPEAL 111 OF 2004 PW3 Satish Dadasaheb Kale, brother of deceased, deposed thathis sister was treated properly for one year. When his sister came tomaternal home, she informed about ill-treatment by husband and in-laws on account of bringing money for setting up T.V. shop foryounger brother of accused no.1. Initially demand was of Rs.35,000/-but subsequently demand was made for Rs.20,000/-. As demandwas not met, accused persons beat Anita and made her sleep withoutfood. She also reported about ill-treatment when she came forDiwali festival. During marriage of cousin brother-in-law of Anita,she had come, she cried and reported about serious torture. OneMohanrao Shelke came and informed that Anita was seriously ill andthey all left for Ratnapur at around 09:00 p.m. to 10:00 p.m. andreached Sukali at 01:00 a.m. to 02:00 a.m. There, on enquiry, theywere told that funeral is over. He deposed that they suspected thataccused persons killed his sister by administering poison. PW4 Virendra Chintaman Baraskar is Police Head Constable,who noted the FIR and registered crime. PW5 Kisansing Sandosing Bahure (PI) is the InvestigatingOfficer, who narrated all the steps taken by him during investigation. {9} CRI APPEAL 111 OF 2004 DEFENDANT EVIDENCE ON RECORD10. Defence has also adduced evidence of one witness i.e. DW1Dr.Amit Bhanudas Phadke, Medical Officer at exh.42, who testifiedabout Anita being brought with history of per vaginal bleeding on15-02-2000, 17-02-2000, 18-02-2000 and Sonography test revealedher pregnancy. During visit on 27-11-2000, there was complaint ofburning micturation and was given medical treatment. During visitof Anita on 25-02-2002, she was two months’ pregnant and at thattime, she gave previous history. Doctor carried photocopies ofmedical papers exh.44 and 45. ANALYSIS11.Admittedly, though there was charge for Section 498-A, 304-B,306 read with 34 of the IPC, appellants are acquitted from suchcharges, but they are held guilty and convicted for offence underSection 201 read with 34 of the IPC. State has not questioned theacquittal from above charges by filing any proceedings. Therefore,only the short point, which arises for consideration in this appeal, iswhether prosecution at all succeeded in establishing charge ofSection 201 read with 34 of the IPC. {10} CRI APPEAL 111 OF 200412.Section 201 of the IPC for ready reference and comprehensionis reproduced as under :“201. Causing disappearance of evidence of offence, orgiving false information to screen offender.- Whoever,knowing or having reason to believe that an offence hasbeen committed, causes any evidence of the commission ofthat offence to disappear, with the intention of screeningthe offender from legal punishment, or with that intentiongives any information respecting the offence which heknows or believes to be false;if a capital offence.— shall, if the offence which heknows or believes to have been committed is punishablewith death, be punished with imprisonment of eitherdescription for a term which may extend to seven years,and shall also be liable to fine;if punishable with imprisonment for life.— and if theoffence is punishable with [imprisonment for life], or withimprisonment which may extend to ten years, shall bepunished with imprisonment of either description for aterm which may extend to three years, and shall also beliable to fine;if punishable with less than ten years’ imprisonment.— and if the offence is punishable with imprisonment forany term not extending to ten years, shall be punished withimprisonment of the description provided for the offence,for a term which may extend to one-fourth part of the {11} CRI APPEAL 111 OF 2004longest term of the imprisonment provided for the offence,or with fine, or with both.”13.The essentials to prove the offence punishable under Section201 of the IPC are time and again dealt by the Hon’ble Apex Court inumpteen judgments. The relevant observations and requirements insome of the known cases are as under : (i)In the case of Palvinder Kaur v. State of Punjab, AIR 1952 SC354, the Hon’ble Apex Court has observed in paragraph 14 as under :“14. In order to establish the charge under 201 of the PenalCode, it is essential to prove that an offence has beencommitted - mere suspicion that it has been committed isnot sufficient – that the accused knew or had reasons tobelieve that such offence had been committed and withrequisite knowledge and with intent to screen the offenderfrom legal punishment causes the evidence thereof todisappear or gives false information respecting suchoffences knowing or having reasons to believe the same tobe false.”(ii)In the case of Suleman Rehiman Mulani v. State ofMaharashtra AIR 1968 SC 829, the Hon’ble Apex Court has observedin paragraph 6 as under :“6. The conviction of the Appellant 2 under Section 201IPC depends on the sustainability of the conviction of {12} CRI APPEAL 111 OF 2004Appellant 1 under Section 304-A IPC. If Appellant 1 wasrightly convicted under that provision, the conviction ofAppellant 2 under Section 201 IPC on the facts foundcannot be challenged. But on the other hand, if theconviction of Appellant 1 under Section 304-A IPC cannotbe sustained, then, the second appellant's conviction underSection 201 IPC will have to be set aside, because toestablish the charge under Section 201, the prosecutionmust first prove that an offence had been committed notmerely a suspicion that it might have been committed - andthat the accused knowing or having reason to believe thatsuch an offence had been committed, and with the intentto screen the offender from legal punishment, had causedthe evidence thereof to disappear. The proof of thecommission of an offence is an essential requisite forbringing home the offence under Section 201 IPC - see thedecision of this Court in Palvinder Kaur v. State of Punjab.”(iii)In the case of Nathu v. State of U.P. (1979) 3 SCC 574, theHon’ble Apex Court has observed in paragraph 1 as under :“1. Before a conviction under Section 201 can berecorded, it must be shown to the satisfaction of the courtthat the accused knew or had reason to believe that anoffence had been committed and having got thisknowledge, tried to screen the offender by disposing offthe dead body.” {13} CRI APPEAL 111 OF 2004(iv)In the case of Ram Saran Mahto v. State of Bihar (1999) 9 SCC486, the Hon’ble Apex Court has observed in paragraph 13 as under :“13. It is not necessary that the offender himselfshould have been found guilty of the main offence for thepurpose of convicting him of offence under Section 201.Nor is it absolutely necessary that somebody else shouldhave been found guilty of the main offence. Nonetheless, itis imperative that the prosecution should have establishedtwo premises. First is that an offence has been committedand the second is that the accused knew about it or he hadreasons to believe the commission of that offence. Thenand then alone the prosecution can succeed, provided theremaining postulates of the offence are also established.”(v)In the case of V.L.Tresa v. State of Kerala (2001) 3 SCC 549, theHon’ble Apex Court has observed in paragraph 12 as under :“12. Having regard to the language used, thefollowing ingredients emerge :(I) committal of an offence :(II) person charged with the offence under Section201 must have the knowledge or reason to believe that themain offence has been committed:(III)person charged with the offence under Section201 IPC should have caused disappearance of evidence orshould have given false information regarding the mainoffence; and(IV) the act should have been done with the {14} CRI APPEAL 111 OF 2004intention of screening the offender from legalpunishment.” (vi)In the case of Sukhram v. State of Maharashtra (2007) 7 SCC502, the Hon’ble Apex Court has observed in paragraph 18 as under :“18. The first paragraph of the Section contains thepostulates for constituting the offence while the remainingthree paragraphs prescribe three different tiers ofpunishments depending upon the degree of offence in eachsituation. To bring home an offence under Section 201 ofIPC, the ingredients to be established are: (i) committal ofan offence; (ii) person charged with the offence underSection 201 must have the knowledge or reason to believethat an offence has been committed; (iii) person chargedwith the said offence should have caused disappearance ofevidence and (iv) the act should have been done with theintention of screening the offender from legal punishmentor with that intention he should have given informationrespecting the offence, which he knew or believed to befalse. It is plain that the intent to screen the offendercommitting an offence must be the primary and sole aim ofthe accused. It hardly needs any emphasis that in order tobring home an offence under Section 201 IPC, a meresuspicion is not sufficient. There must be on record cogentevidence to prove that the accused knew or hadinformation sufficient to lead him to believe that theoffence had been committed and that the accused has {15} CRI APPEAL 111 OF 2004caused the evidence to disappear in order to screen theoffender, known or unknown.”Very recently the Hon’ble Apex Court, while deciding CriminalAppeal 265–66 of 2018 in the case of Dinesh Kumar Kalidas Patel v.State of Gujarat, (2018) 3 SCC 313, after discussing above referredprecedent in paragraph 14 has observed as under :“14.Thus, law is well settled that a charge underSection 201 IPC can be independently laid and convictionmaintained also, in case the prosecution is able to establishthat an offence had been committed, the person chargedwith the offence, had the knowledge or the reason tobelieve that the offence has been committed, the saidperson has caused disappearance of the evidence and suchact of disappearance has been done with the intention ofscreening the offender from legal punishment. Meresuspicion is not sufficient, it must be proved that theaccused knew or had a reason to believe that the offencehas been committed and yet he caused the evidence todisappear so as to screen the offender. The offender maybe either himself or any other person.”14.Having regard to above legal position, if we revert to thefactual matrix of the case in hand, it is noticed that PW1 informantand his son PW3, who are the only witnesses from family of deceasedand who are examined by prosecution, they both in examination-in- {16} CRI APPEAL 111 OF 2004chief itself speak about news of Anita being sick and admitted in thehospital was received in the night of 12-05-2002. They claim to havereached Sukali village at around 01:00 a.m. to 02:00 a.m.(midnight). No other relative accompanying them has beenexamined to substantiate about receipt of news and they reachingvillage Sukali at around 01:00 a.m. to 02:00 a.m. Even noindependent villager is examined. It is to be noted that even thoughPW1 informant claims that news was received from Mohanrao Shelkeand he accompanied informant and others, he is not examined.Informant’s testimony shows that at his instance they all returnedback to their own village Ratnapur same night i.e. on interveningnight of 12-05-2002 and 13-05-2002 without reporting occurrence toPolice. Evidence to above extent was crucial because allegations ofprosecution are that before parents and family members of Anitareached village Sukali, funeral was hurriedly performed. Therefore,it was expected of prosecution to show that without waiting forinformant and other family members, deliberately to savethemselves, funeral and last rituals were completed by the accused.Because one of the essentials for attracting offence under Section 201of the IPC is suppression of commission of an offence. {17} CRI APPEAL 111 OF 200415.Learned trial Court had already acquitted accused from chargeof Sections 498-A, 304-B as well as 306 read with 34 of IPC.Prosecution witnesses i.e. PW1 Dada, informant, in FIR, allegesabetment to commit suicide whereas his own son PW3 Satishdeposed that they suspected that accused persons killed his sister byadministering poison. Consequently, witnesses are not consistent asregards to allegation of mode and manner of death. 16.Here, admittedly there is nothing to show that deceased Anitamet unnatural death. Specific defence of accused in trial Court isthat deceased was suffering from serious and incurable disease.Deceased was reported to be and also diagnosed of being pregnant,but surprisingly informant had flatly denied about any ailment, anytreatment given to his daughter and has shown ignorance about herpregnancy. This is found in paragraph 8 of cross-examination wherehe has denied that Anita underwent abortion twice. He has alsoshown ignorance about accused husband taking Anita for medicalcheck up from time to time at Nitya Seva Hospital, Shevgaon. Healso denied that Anita lost her hairs and was finding it difficult towork and sit due to pains to her limbs and joints. He has flatlydenied that she was suffering from serious disease. He also {18} CRI APPEAL 111 OF 2004expressed his ignorance that husband frequently took Anita to evenEknath Ayurvedic Hospital, Shevgaon. In paragraph 9 of cross-examination he has also denied that accused persons were waitingfor them for funeral ceremony and that after they reached around11:00 p.m., in their presence funeral was performed. He also deniedin paragraph 10 of cross-examination about ritual of collecting bonesand ashes was conducted on 3rd day of death and said rituals wereattended by over 20-25 persons from his side. 17.Likewise, PW3 Satish, brother of deceased, in paragraph 5 hasadmitted that Anita died on 12-05-2002 and programme of collectingbones and ash was performed on 14-05-2002. He expressed hisinability to state whether it was conducted in the morning and flatlydenied that he and his family members attended the funeralprogramme. 18.Defence has examined DW1 Dr.Amit Fadke, a Medical Officerworking in Nitya Seva Hospital, Shevgaon, at exh.42 wherein hedeposed that he worked as Medical Officer in said hospital for last sixyears. He has deposed that Anita Neelkantha Deshmukh visited thehospital on 15-02-2000. He himself and Dr.Karkaria, C.M.O. {19} CRI APPEAL 111 OF 2004attended Anita, who disclosed history of per vaginal bleeding. Hedeposed that on examination, it was revealed that she was carryingtwo months’ pregnanay. He stated that she visited their hospital on17-02-2000 and again made complaint of per vaginal bleeding. Sheeven paid visit on 18-02-2000, and on said date her Sonography wasperformed, which revealed she to be two months’ pregnant. That shevisited hospital on 27-11-2000 and was complaining of burningmicturation and was given medical treatment. Thereafter, she cameon 25-02-2002 and that time she had given history of two previousabortions; one in 4th month and another in pre-term delivery i.e. in7th months. Witness carried two medical papers maintained by thehospital, which are in his own handwriting as well as in thehandwriting of Dr.Karkaria, which identified to be true and correct.Said documents are marked as exh.44 and 45. In cross-examination above Medical Officer answered that hehad examined Anita on 29-04-2002 and he stated that she had notcome there for any treatment of Cancer nor complaint of any disease.19.From above material, it is emerging that though PW1informant father is denying any ailment or even pregnancy of hisdeceased daughter, defence witness DW1 examined by accused does {20} CRI APPEAL 111 OF 2004show that Anita was being treated for complaint of per vaginalbleeding since February 2000. There is history of two previousabortions. There was complaint of micturation and was beingtreated for the same. Surprisingly, informant father is eitherexpressing ignorance or denying any disease or ailment to hisdaughter. 20.Above discussed material shows that Anita did have healthissues. PW1 Informant and his son PW3 both do not deny aboutnews being received about hospitalization of Anita. News ofhospitalization was passed on to them by one Mohanrao Shelke.Informant and other relatives have reached village of accused samenight. No complaint has been lodged that night and complainantparty had returned back to their village Ratnapur and had come onthe next day to lodge report. Cross-examination of informant showsthat it was very much possible to lodge report on same night if at allthere was any complaint. Why he refrained same night from doingso has not been properly explained. Only reason quoted by him isthat he was frightened. Even his cross-examination in paragraph 6shows that he had gone back to Shevgaon Police Station at around07:00 p.m. to 08:00 p.m. next day. {21} CRI APPEAL 111 OF 200421.Therefore, apparently there is no prompt lodgment ofcomplaint. There are direct suggestions, though denied, that allfamily members had attended the last rituals and even attended the3rd day ritual ceremony. Except PW1 father and PW3 brother ofdeceased, there is no independent witness in support of their casethat before they reached, funeral was concluded. It does not seem tobe a case that without any intimation, accused persons completed thefuneral and last rituals. Inspite of news of hospitalization beingallegedly received at around 09:00 p.m. and when informant himselfclaims that distance between his village Ratnapur and village ofaccused is about 2-3 hours, complainant party claims to have reachedSukali at around 01:00 a.m. to 02:00 a.m. (midnight). PW1 fatherhas admitted that his son Satish, being at Bombay, was informed lateand he reached late. Therefore, such circumstances goes to show that complainantparty did go to the village of accused. Though denied, there are clearsuggestion that they had all attended the funeral and thereafter,returned back. Delayed FIR without plausible explanation rendersdefence version doubtful and possibility of false implication onafterthought story cannot be brushed aside lightly. {22} CRI APPEAL 111 OF 2004SUMMATION22.In the light of above, keeping the above legal requirements inmind, here firstly commission of offence has not been proved anddeath of Anita is not proved to be either due to suicide oradministration of poison, which are alleged by PW1 father and PW3brother of deceased. It appears that Anita, who had physical ailmentand was being treated for same, did meet unnatural death, but thereis nothing to show that accused are responsible for the same. Theessential ingredients for attracting offence under Section 201 readwith 34 of the IPC are not available in the prosecution evidence. 23.Perused the judgment under challenge. Learned trial Judge hadreadily accepted prosecution version regarding the offence underSection 201 read with 34 of the IPC without getting convinced andsatisfied regarding availability of essential ingredients required forconvicting accused for the said charge. Hence, it is a case calling forinterference by allowing the appeal. Accordingly, I pass the followingorder : ORDERI)Criminal Appeal No.111 of 2004 is allowed. {23} CRI APPEAL 111 OF 2004II)The conviction awarded to appellant nos.(1) Neelkanths/o Sadashiv Deshmukh and (2) Aashabai w/o SadashivDeshmukh in Sessions Case No.131 of 2002 by the learnedI Ad-hoc Additional Sessions Judge, Ahmednagar on22-01-2004 for the offence punishable under Section 201 readwith 34 of the Indian Penal Code, stands quashed and set aside.III)The appellant nos.1 and 2 stand acquitted of the offencepunishable under Section 201 read with 34 of the Indian PenalCode.IV)The bail bonds of appellant nos.1 and 2 stand cancelled. V)The fine amount deposited, if any, be refunded to theappellant nos.1 and 2 after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT