Habu and another vs State of M.P.

S.L. Kochar, J.

This is an appeal preferred against the judgment dated 30-9-1997 passed by the learned Second Addl. Sessions Judge to the Court of Sessions Judge, Jhabua in Sessions Trial No. 230/90, thereby finding the appellants Habu, Dungaria and Dhundharia guilty of the offence punishable u/s 201, Indian Penal Code for causing disappearance of the evidence of offence of murder for screening the offender from legal punishment and sentencing them each to suffer R.I. for five years. The appellant Dhundhariya, expired during the course of pendency of this appeal, therefore, the same stood abated as against this appellant.

The prosecution case as unfurled before the trial Court is that on 26-3-1988 in the morning father and mother of complainant PW-1 Vesta namely, Raisingh and Bhuribai along with one Shankaria went for treatment of his wife at village Bada. They did not return therefrom upon which Vesta (PW 1) on 27-3-1988 in the morning went to village Bada and enquired from Shankariya about his mother and father. Shankaria in his turn told him that they had already returned back to their village Mordhi in the evening. Complainant Vesta returned back to his village and disclosed this fact to Hakli, Gamti, his brother Inderia and uncle Desingh. Thereafter, they all went in search of both persons and they saw the head of the mother of complainant Vesta, deceased Bhuribai, in the ditch situated near Mordhi Tank. The other parts of her body were also seen by them in the same ditch. After seeing the dead-body of Bhuribai, they returned back to their village Mordhi and informed this fact to village Chowkidar Bhikharia and villagers Indersingh, Patel, Mayala and Kisnia. Thereafter, they all went in search of the father of complainant PW-1 Vesta and found the dead body of father of complainant Vesta namely Raisingh in another ditch of water situated by the side of village tank. After seeing the dead bodies of mother and father of PW-1, his companions returned back to his house. PW-1 Vesta lodged the report to this effect view Ex. P/l at the Police Station on 27-3-1988 at 9.10 PM. In this report also he mentioned the above facts about seeing the different parts of dead body of his mother in the water ditch and the dead body of his father. It is further stated by the prosecution that the deceased Raisingh was having two wives, one was deceased Bhuribai and another Noorbai. From Noorbai, his father was having three issues namely, the appellants Dongariya and deceased Dhundaria (died during pendency of this appeal and Inderiya (since acquitted by the trial Court).

The complainant disclosed his suspicion in the First Information Report also on these three step brothers because they were demanding their share by partition in the lands. The Police stepped into investigation and filed charge-sheet against the six accused persons. The appellants and other acquitted accused persons were charged only u/s 302, Indian Penal Code. They denied the charge and pleaded innocence. Therefore, they were put to trial. The learned trial Court, after examining the prosecution witnesses and hearing both the parties, acquitted co-accused Bhoorsingh, Chimliya, and Indriya, whereas convicted the present appellants Habu, Dogariya and Dhundariya only u/s 201, Indian Penal Code for causing disappearance of evidence of offence of murder by screening the offender from legal punishment. The appellants were not charged for this section but, since the offence u/s 201, Indian Penal Code was lesser in degree than section 302, Indian Penal Code, therefore, the learned trial Court relying on the commentary in the Book of Law of Crimes 23rd Edition by Ratanlal and Dhirajlal and revived the some by former Justice D. A. Desai and M. L. Jain and Dr. M. R. Madhav Menon.

Learned counsel for the appellants has vehemently argued that since the appellants have been acquitted from the charge of murder punishable u/s 302, Indian Penal Code, they cannot be convicted u/s 201, Indian Penal Code. He placed reliance on the Supreme Court judgment passed in the case of State of U.P. Vs. Kapil Deo and another, and Duvvur Dasratharammareddy Vs. State of Andhra Pradesh, .

Per contra, learned Government Advocate (P.P.) has supported the judgment and finding of conviction recorded by the learned trial Court.

Having heard learned counsel for the parties and after perusing the entire record, this Court does not find any force in the submission of the learned counsel for the appellants who placed reliance on the judgments passed by the Supreme Court in the cases of State of U. P. and Devvur Dasratharamma Reddy (supra). In both the cases, the Supreme Court has not ruled that once the accused is acquitted from the charge of murder, he cannot be convicted u/s 201, Indian Penal Code. In both the cases the Supreme Court, after evaluation of the prosecution evidence, found the same insufficient to prove that the appellant/accused persons caused disappearance of the evidence of offence of murder for screening the offender from legal punishment.

Apart from the aforesaid submission of the learned counsel for the appellants, otherwise also the conviction of the appellant is not sustainable because in the First Information Report (Ex. P/l) lodged by PW-1 Vesta, the information about both the dead bodies lying in the ditch of water situated by the side of tank of village Mordhi was also mentioned. The law in this connection is very well settled by the judgments of the Apex Court that when any fact deposed to and discovered in consequence of information given by accused of any offence, in the custody of the police officer would not be considered as a fact discovered at the instance of accused, which was already known to the police prior to taking the accused in custody and disclosure of the fact so discovered by the accused :

(See : Krishan Mohar Singh Dugal Vs. State of Goa, , Jaffar Hussain Dastagir Vs. State of Maharashtra, , Aher Raja Khima Vs. The State of Saurashtra, .

In the instant case, the dead bodies were already lying openly in public ditch of water situated near village tank and also seen by PW-1 Vesta as well as so many other villagers. Therefore, after the arrest of the appellants, their disclosure statement to this effect would not be considered as a fact discovered in the wake of the statements made by the appellants. In this situation, it cannot be said that the dead bodies or some parts of the dead body were discovered at the instance of the appellants.

The appellants were arrested on 29-3-1988 i.e. after three days of the incident and two days after lodging of the FIR Ex. P/l in which PW-1 Vesta had mentioned that he and other villagers including village Chowkidar and Sarpanch saw the dead bodies of his mother and father lying near a tank in the ditch of water.

In this factual back drop, it cannot be said that exclusively the appellants were having knowledge of the place where the dead bodies were found. It was an open and easily accessible place by anybody. Therefore, the appellants could also see and know about presence of the dead bodies on the surfaces of two ditches of water. Therefore, an inference cannot be drawn that they were the persons who threw the dead bodies in the ditch of water and thereby committed the offence punishable u/s 201 of the Indian Penal Code for causing disappearance of the evidence of offence of murder for screening the offender from legal punishment.

As a result of the foregoing discussion, this appeal succeeds and is hereby allowed. The conviction and sentences of the appellants are hereby set aside and they are acquitted of the charge. The appellants are on bail. Their bail and surety bonds shall stand discharged.