Sou. Vijaya Alias Baby vs State Of Maharashtra

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

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 –

(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 –

(a) caused any evidence of the commission of that offence

to disappear, or

(b) gave any information relating to that offence which

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.