Mukesh and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—The appellant, Mukesh S/o. Bhairu Ram, as submitted was posted as Constable in the Wireless Wing of the Rajasthan Police. He was married with Sanjubala @ Beena daughter of Mohan Singh (PW-11) way back on 10.02.2000 as per Hindu Customs and Religious Rites.

Appellant, Ram Singh, the co-accused of Mukesh, is friend of Mukesh and colleague, being posted along with him in the Wireless Wing of the Rajasthan Police.

Appellants, namely Bhairu Ram and Smt. Prem Devi are parents of Mukesh, Lalchand is brother of Mukesh and Smt. Kamlesh is sister of Mukesh.

The case of the prosecution is that Mukesh along with his wife, Sanjubala @ Beena and their daughter, aged about twenty-days, way back on 12.04.2005 came to reside in a rented room at Jaipur in the building owned by Mahesh Kumar (PW-2). In the morning of 13.04.2005 at about 05:00 A.M., it was announced that Sanjubala @ Beena wife of Mukesh had died.

As per prosecution case, by hiring a Quails vehicle driven by Sanjay S/o. Tarachand (PW-14), the dead-body of Sanjubala @ Beena was transported from Jaipur to Village Nareda, native Village of Mukesh, appellant, falling within the jurisdiction of Police Station, Kotputali, District Jaipur.

It has come in the evidence that Sanjubala @ Beena died due to Asphyxia caused by strangulation and daughter of Sanjubala @ Beena, aged about twenty-days, died due to head injury, sustained by her.

Prosecution story, in nut-shell is that on presentation of written-report (Exhibit-P/15) by Mohar Singh (PW-11), the father of Sanjubala @ Beena, before Kesar Singh Shekhawat (PW-20), Station House Officer, Police Station, Kotputali, the criminal proceedings were initiated.

On the basis of above said written-report (Exhibit-P/15), a formal First Information Report bearing No. 211/2005, (Exhibit-P/21) was registered at Police Station, Kotputali, District Jaipur for offences punishable under Sections 498-A, 304-B and 302 of Indian Penal Code.

The above said First Information Report was investigated. A report to this effect under Section 173 of the Code of Criminal Procedure, 1973 was submitted in the Court of concerned Magistrate and the accused after committed were sent for the trial.

The Investigating Agency came to a conclusion that appellant, Mukesh, being husband along with his parents, brother and sister had harassed and maltreated Sanjubala @ Beena, and had subjected her to cruelty and furthermore, appellant, Mukesh committed murder of his wife and daughter aged about twenty-days. Furthermore, he along with his friend and co-accused Ramsingh had taken away the dead-body of Sanjubala @ Beena from the place of occurrence to his native Village by washing the place of occurrence.

The trial Court charged appellant, Mukesh, for offences punishable under Sections 498-A, 304-B I.P.C. and in alternative for offences punishable under Sections 302 and 201 of Indian Penal Code.

Appellant Ram Singh was charged for offence under Section 201 and 176 I.P.C.

Appellants, Bhairu Ram, the father-in-law, Smt. Prem Devi, the mother-in-law, Lalchand, the brother-in-law, being brother of husband of deceased Sanjubala @ Meena, and Smt. Kamlesh, the sister-in-law, being sister of the husband of deceased Sanjubala @ Meena were only charged for offence punishable under Section 498-A I.P.C.

Appellants denied the charges and claimed trial. After conclusion of the trial, appellant, Ramsingh was convicted for offences punishable under Sections 201 and 176 I.P.C., whereas appellants, Bhairuram, Smt. Premdevi, Lalchand and Smt. Kamlesh and Mukesh were convicted for offence punishable under Section 498-A I.P.C.

Appellant Mukesh was also convicted for offence under Section 302, 304-B and 201 I.P.C.

Having convicted the appellants, named herein above, for the above said offences, vide a separate order of even date, the trial Judge had sentenced them as under:--

"Appellants, Mukesh, Smt. Prem Devi, Smt. Kamlesh and Lalchand : Under Section 498-A I.P.C. to six months simple imprisonment and to pay a fine of Rs. 300/- each. In default of payment of fine to further undergo one month simple imprisonment.

Appellant, Mukesh : Under Section 302 I.P.C. to life imprisonment and to pay a fine of Rs. 2000/-. In default of payment of fine to further undergo three months simple imprisonment.

Appellant, Mukesh : Under Section 304-B I.P.C. to seven years simple imprisonment and to pay a fine of Rs. 2000/-. In default of payment of fine to further undergo two months simple imprisonment.

Appellants, Mukesh and Ram Singh : Under Section 201 I.P.C. to two years simple imprisonment and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo one month simple imprisonment.

Appellant, Ram Singh : Under Section 176 I.P.C. to one month simple imprisonment and to pay a fine of Rs. 300/-. In default of payment of fine to further undergo fifteen days simple imprisonment."

Aggrieved against the judgment of conviction and the order of sentence pronounced by the trial Court, appellant, Mukesh has filed D.B. Criminal Appeal No. 1603/2007, appellants, Bhairu Ram, Smt. Prem Devi, Lalchand and Smt. Kamlesh have preferred D.B. Criminal Appeal No. 1466/2007 and appellant, Ramsingh has instituted D.B. Criminal Appeal No. 1421/2007, under Section 374 of the Code of Criminal Procedure, 1973.

Since in all the afore-quoted appeals the impugned judgment is common, we shall decide all these appeals together.

Mohar Singh, (PW-11), the father of Sanjubala @ Beena, submitted written-report (Exhibit-P/15) before Kesar Singh Shekhawat (PW-20), who was then posted as Station House Officer, Police Station, Kotputali stating therein that his daughter Sanjubala @ Beena was married with the appellant, Mukesh way back on 10.02.2000 according to the Hindu Customs and Rites. At the time of marriage, he had given dowry beyond his capacity. The in-laws of the daughter started harassing her after six months and were demanding dowry, that they subjected his daughter Sanjubala @ Meena to physical and mental cruelty. They used to beat her and demand Maruti Car and Rs. 1,00,000/-. It was stated that the complainant had brought his daughter to her parental house, where she gave birth to a son. When the son was aged about one-year, at that time, husband Mukesh, his father and brother Rakesh etc., in the presence of five/ten persons, had sought forgiveness and assured that in future, they will not maltreat Sanjubala @ Beena. After few days, "chhuchhak-ceremony" of the child was to be celebrated. The complainant came to the village of the accused along with the others and had given Rs. 51,000/- in cash, gold, mangalsutra, other household articles and clothes etc. At that time, the in-laws demanded Rs. 1,00,000/- and a Maruti Car; and had also given beating to the complainant and his relatives. Later-on, accused-party had sought forgiveness. It was further stated in written-report that on 24.03.2005 when Jogendra (PW-7), nephew of complainant had gone to meet Sanjubala @ Beena, she complained that she had been given beating by husband and his relatives and had sent her son with Jogendra (PW-7). Lastly, it was stated in the complaint that later-on, after hatching conspiracy, accused had killed Sanjubala @ Beena and his daughter; and had not relayed the information to the parents of Sanjubala @ Beena.

Dr. Suman Kumar Yadav (PW-15) on 13.04.2005 at B.D.S. Hospital, Kotputali had conducted autopsy on the dead-body of a twenty-days old baby of Sanjubala @ Beena. He was Member of the Medical Board and as per the Post Mortem Report, (Exhibit-P/18), he had noted following injuries on the person of the daughter of deceased, aged about twenty-days.

"(i) Lacerated wound 5x1 x bone deep on the right temporal region.

(ii) Swelling on right side of forehead."

As per opinion of the Medical Board, the cause of death was coma due to head injury.

Dr. Birbal Yadav (PW-18) on 13.04.2005 at 02:40 P.M., being Member of the Medical Board had conducted Post Mortem on the dead-body of Sanjubala @ Beena. The ligature mark was found around the neck of the deceased and as per opinion of the Medical Board, the cause of death was Asphyxia due to strangulation.

At the trial, prosecution in all had examined twenty-witnesses, apart from placing reliance upon several documents.

The prosecution witnesses can be divided into the following three categories:--

"A. The parents and relatives of the deceased who have deposed regarding the fact that Sanjubala @ Beena was married with the appellant, Mukesh and she was harassed, beaten, maltreated and subjected to mental and physical cruelty by her husband, Mukesh, his parents Bhairu Ram and Smt. Prem Devi; and sibling of Mukesh, namely Lalchand and sister Smt. Kamlesh.

B. The second set of witnesses include the landlord in whose house, in a rented room Mukesh and deceased Sanjubala @ Beena had stayed together for a night and in the morning Sanjubala @ Beena was found dead, transportation of her dead-body from Jaipur to Village Nareda, native village of appellant Mukesh, preparation made to cremate her and her child; and seizure of the dead-body by the Police and the follow up Post Mortem.

C. The third set of witnesses effected the arrest of the accused and had participated in the investigation and attested Inquest proceedings."

Mohar Singh (PW-11), the father of deceased, Smt. Santosh, (PW-10), the mother of deceased, Sher Singh (PW-9), uncle being elder brother of Mohar Singh, father of deceased (taya), Jaikishan (PW-12), uncle being brother of the father of deceased (chacha), Jogendra Kumar (PW-7), being cousin i.e. son of elder brother of Mohar Singh and Bhura Ram (PW-8), being neighbour of Mohar Singh appeared as witnesses, in the Court, and have broadly stated that Sanjubala @ Beena on 10.02.2000 was married with the present appellant, Mukesh. She was subjected to harassment and given beating by her in-laws on account of demand of dowry. These witnesses, broadly stated that two days before the marriage, ''lagan'' was sent, but they received a telephonic call from the father of appellant, Mukesh that Rs. 1,00,000/- and Maruti Car be given in dowry. However, since the demand was not satisfied, after marriage taunts were given to Sanjubala @ Beena and it was said that your father is beggar. The witnesses further said that Sanjubala @ Beena on telephone used to inform that father-in-law, Bhairuram and mother-in-law Smt. Prem Devi, brother-in-law Rakesh and Lalchand used to beat and maltreated her. It was stated that number of times, Panchayat was called. Accused admitted their guilt, sought forgiveness and assured that in future they will treat Sanjubala @ Beena well, but every time promise was not kept and finally it was mentioned that on the night of 12.04.2005, they had taken Sanjubala @ Beena and her daughter to Jaipur. In the morning of 13.04.2005, they had brought her dead-body to the native village of Mukesh and were making preparations for cremation. Upon information, the said witnesses reached at the Village of accused and foiled the attempt of accused to cremate the dead-body.

Thus, from deposition of above witnesses, offence under Section 498-A I.P.C. is well established against all the appellants, except appellant, Ram Singh. Therefore, we uphold conviction of appellants, namely Bhairu Ram, Smt. Prem Devi, Lal Chand and Smt. Kamlesh; and appellant Mukesh for offence punishable under Section 498-A I.P.C.

Now we shall consider whether offence under Section 302 I.P.C. is made out against the appellant Mukesh or not.

Mahesh Kumar (PW-2) stated that he knew Sunil Punia (PW-3), who was posted in the Wireless Wing of the Rajasthan Police. He had remained as a tenant in his house for seven/eight months. On 7th or 8th of April, 2005, Sunil Punia along with Ram Singh, appellant came and stated that room is required on rent. The rent was settled as Rs. 1100/-. It is further deposed by this witness that Mukesh came and finalized the room at the top floor. On 12.04.2005 Mukesh along with his wife came and stayed for a night. In the morning at about 05:00 to 05:30 AM., he was informed by Mukesh that his wife has died. Mukesh was accompanied by Ramsingh, who informed that his wife was sick and she has died. This witness directed them to call Sunil Punia through whom he had given house on rent.

Sushil Kumar (PW-3) appearing in the Court, stated that he knew Ram Singh, appellant. He stayed as a tenant in the house of Mahesh Kumar. Later-on, on allotment of the Government Quarter, he had vacated the rented house. He was approached by Ram Singh, appellant that a house on rent is required for his friend Mukesh. On his introduction, Mahesh Kumar (PW-2) had given a room on rent to Mukesh @ Rs. 1100/- per month. On 13.04.2005 Ram Singh, appellant came and said that the wife of the person for whom room was taken on rent, has expired. The witness stated that he had gone inside the room and saw that a lady was lying in the bed. . Thereafter, a vehicle was arranged, the body was kept in the vehicle and was taken by appellant, Mukesh to his native village.

In cross-examination, this witness stated that in the building, wherein room was taken on rent, number of persons were residing as tenants. Since, they all belonged to the Police Department, they were on good terms.

Lakhan Pal Singh (PW-13) stated that he knew Ram Singh, appellant. He is also working as Constable along with him. On 13.04.2005, Mukesh, Ram Singh and Harlal came to him. This witness stated that he knew Mukesh earlier. Mukesh informed that his wife was sick and she has died. Therefore, a vehicle be arranged. In the neighbourhood of this witness, Sanjay, driver was residing. They arranged a vehicle. He came to the house where the dead-body was lying on the mattress and was covered with a bed-sheet. They kept the dead-body in the vehicle.

In cross-examination, this witness stated that he is posted as Constable in the Wireless Wing of the Rajasthan Police from last twenty-two years. Ram Singh, appellant is also posted as Constable. Lastly, this witness stated that Ram Singh, appellant has good reputation. Mukesh, appellant was also posted in Police Department at Jaipur.

Sanjay (PW-14), driver, stated that in his Quails vehicle, he had transported the dead-body.

Kesar Singh Shekhawat (PW-20) at the relevant time was posted as Station House Officer, Police Station, Kotputali. This witness, in the Court, stated that he had received an information from Village Nareda that Bhairuram, after killing his dauther-in-law is making preparations for cremation. This witness along with Sitaram, S.I. and Banwari, S.I. reached at the spot. The dead-body of Sanjubala @ Beena and her daughter was taken into possession. The witness learnt from the Villagers that the parents of Sanjubala @ Beena had already been informed. Thereafter, the dead-body was sent for the Post Mortem. Mohar Singh (PW-11), the father of Sanjubala @ Beena had presented written-report (Exhibit-P/15) and on the basis thereof, a formal F.I.R. (Exhibit-P/21) was registered.

Thus, prosecution has conclusively proved that the appellant, Mukesh last slept with his wife in a room taken on rent by him from Mahesh Kumar (PW-2). In the morning, his wife was found dead in the said room. The cause of death of Sanjubala @ Beena is Asphyxia due to strangulation. The cause of death of daughter of appellant, Mukesh and Sanjubala @ Beena is head injury.

Therefore, it was necessary for the appellants to explain as to how Sanjubala @ Beena had died, when appellant, Mukesh alone was with her in the rented room.

Recently, the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 , had observed as under:--

"Discussion and conclusion

Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal.

We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872.1 This section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.

Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Way back in Shambhu Nath Mehra v. State of Ajmer this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:

"This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

Reliance was placed by this Court on Ganeshlal v. State of Maharashtra in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

Similarly, in Dnyaneshwar v. State of Maharashtra this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

In Jagdish v. State of Madhya Pradesh this Court observed as follows:

"It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

More recently, in Gian Chand v. State of Haryana a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words:

"During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.

Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar''s death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.

It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do"

The similar view was also formulated by the Hon''ble Supreme Court in the case of State of Rajasthan Vs. Kashi Ram, AIR 2007 SC 144 : (2006) 10 JT 28 : (2006) 11 SCALE 440 : (2006) 12 SCC 254 : (2006) 9 SCR 501 Supp , and His Lordship has observed as under:--

"17. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated In Re: Naina Mohamed, (1960) CriLJ 620 : (1960) ILR (Mad) 157 : (1960) 73 LW 210 : (1960) 1 MLJ 118 .

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."

In view of the evidence led by the prosecution and the interpretation of Section 106 of the Indian Evidence Act made by the Hon''ble Apex Court in the above noted judgments, we have no hesitation to hold that the prosecution has succeeded to prove offence punishable under Section 302 of Indian Penal Code against appellant, Mukesh.

Now we shall consider the case of the appellant, Ram Singh, who was posted as Constable in the Wireless Wing of the Rajasthan Police.

Appellant, Mukesh was also posted as Constable.

Sushil Kumar (PW-3) and Lakhan Pal Singh (PW-13) are also posted as Constables in the Wireless Department of the Rajasthan Police.

Ram Singh, being colleague and friend, on learning that wife of his colleague and friend has expired, has extended all help for arranging vehicle for transportation of the dead-body to Village Nareda, the native Village of accused, Mukesh. On getting information that wife of his friend has expired on humanitarian grounds, being a colleague and friend, appellant Ram Singh was expected to extend all possible help.

Prosecution has no way proved that Ram Singh, appellant knew that Sanjubala @ Beena has been murdered.

It has come in the evidence of Sushil Kumar (PW-3) and Lakhan Pal Singh (PW-13) that they along with Ram Singh, appellant had gone inside the room taken on rent by Mukesh and they found that Sanjubala @ Beena was lying dead.

Nobody had examined the dead-body.

A close friend is not expected to minutely examine the dead-body of the wife of the friend. It cannot be ruled out that Ram Singh, appellant believed version of his friend that his wife being sick has expired. At the hour of bereavement, a neighbour, a friend and a colleague will render all possible help.

We cannot rule out that Ram Singh, appellant being gullible and in zeal to do good had rendered all help, which a good human being is supposed to extend.

Prosecution has failed to prove mens-rea on the part of the appellant to commit offence under Section 201 I.P.C. Necessary ingredients of offence under Section 201 I.P.C. is ''whoever knowing or having reason to believe that an offence has been committed'', cause disappearance of evidence.

In the present case, prosecution has miserably failed to prove that the appellant, Ram Singh knew or had reason to believe that an offence has been committed.

So far as appellant, Ram Singh is concerned, he only knew that the wife of his friend has expired and as per version given by the friend, his wife was ailing and sick.

In the facts and circumstances of the case, it cannot be said that the appellant Ram Singh knew that Mukesh had murdered his wife or he had assisted him to hide the dead-body.

In the case of Ram Saran Mahto and Another Vs. The State of Bihar, AIR 1999 SC 3435 : (1999) CriLJ 4311 : (1999) 3 Crimes 125 : (1999) 6 JT 501 : (1999) 5 SCALE 396 : (1999) 9 SCC 486 : (1999) 2 SCR 250 Supp : (1999) AIRSCW 3416 : (1999) 7 Supreme 545 , the Hon''ble Apex Court has held as under:--

"10. In this case we find it necessary to extract Section 201 of the Penal Code which is as follows:

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, caused 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.

The first paragraph of the section contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. The two indispensable ingredients for all the three tiers in Section 201 are:

(1) The accused should have had the knowledge that an offence has been committed or at least that he should have had reasons to believe it.

(2) He should then have caused disappearance of evidence of commission of that offence.

Prosecution cannot escape from establishing the aforesaid two basic ingredients, for conviction of the accused under Section 201.

The gravest degree contemplated in Section 201 is punishable with the maximum sentence of imprisonment for seven years. The minimum requirement for the offence to reach the said peak degree is that the offender should have caused disappearance of evidence of another offence which is punishable with death, and that should be established in addition to the above-mentioned two basic ingredients. Even if the two basics are established, and the prosecution failed to establish the next requirement the court cannot convict the accused for the highest tier specified in the section.

It is not necessary that the offender himself should have been found guilty of the main offence for the purpose of convicting him of offence under Section 201. Nor is it absolutely necessary that somebody else should have been found guilty of the main offence. Nonetheless, it is imperative that prosecution should have established two premises. First is that an offence has been committed and second is that the accused knew about it or he had reasons to believe the commission of that offence. Then and then alone the prosecution can succeed, provided the remaining postulates of the offence are also established.

The above position has been well stated by a three- Judge Bench of this Court way back in 1952, in Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator), AIR 1952 SC 354 : (1953) CriLJ 154 : (1953) 4 SCR 94 :

In order to establish the charge under s.201, Penal Code, it is essential to prove that an offence has been committed, mere suspicion that it has been committed is not sufficient - that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false.

It is well to remind that the Bench gave a note of caution that the court should safeguard itself against the danger of basing its conclusion on suspicions however strong they may be. In Kalawati and Another Vs. The State of Himachal Pradesh, AIR 1953 SC 131 : (1953) CriLJ 668 : (1953) 4 SCR 546 a Constitution Bench of this Court has, no doubt, convicted an accused under Section 201 IPC even though he was acquitted of the offence under Section 302. But the said course was adopted by this Court after entering the finding that another accused had committed the murder and the appellant destroyed the evidence of it with full knowledge thereof. In a later decision in Nathu and Another Vs. State of Uttar Pradesh, AIR 1979 SC 1245 : (1979) CriLJ 1066 : (1979) 3 SCC 574 : (1979) SCC(Cri) 557 : (1979) 11 UJ 298 this Court has repeated the caution in the following words:

Before a conviction under Section 201 can be recorded, it must be shown to the satisfaction of the court that the accused knew or had reason to believe that an offence had been committed and having got this knowledge, tried to screen the offender by disposing of the dead body.

In this context a reference to a more recent decision of this Court would be apposite. The following observations of the Bench in Hanuman and ors. v. State of Rajasthan {1994 Supple. (2) SCC 39} are relevant:

The mere fact that the deceased allegedly died an unnatural death would not be sufficient to bring home a charge under Section 201 IPC, unless the prosecution was further able to establish that the accused persons knew or had reason to believe that an offence had been committed, causing the evidence of the commission of the offence to disappear.

In the present case, all that the prosecution could establish was that dead body of Asha Kumari was recovered from the well situated in the compound of her marital home and that the cremation was hurried through after physically keeping her kith and kin away from the scene. No doubt, such a culpable hurry enkindles fumes of suspicion which can be regarded as an incriminating circumstance against those who showed such a haste. But that circumstance stands isolated and unconcatenated with any other circumstance."

Taking totality of the circumstances and the evidence of Sushil Kumar (PW-3) and Lakhan Pal Singh (PW-13) and Harlal (PW-19), who had deposed in their cross-examinations that in the Police Line, all the employees have cordial relations and extend help to each other and Ram Singh, appellant learning that the wife of Mukesh had died, had extended help, we shall extend benefit of doubt to appellant, Ram Singh, as a possibility that he never knew that offence has been committed cannot be ruled out.

Hence, we are of the view that the conviction and sentence of the appellant, Ram Singh awarded by the trial Court for offence punishable under Section 201 I.P.C. cannot be sustained and he is liable to be acquitted of this charge.

Since we have held that the prosecution has failed to prove that the appellant, Ram Singh knew or had reason to believe that offence has been committed, it cannot be said that he was bound to give information to the Police regarding commission of the alleged offence.

Thus, we shall also record acquittal of the appellant, Ram Singh, for offence punishable under Section 176 I.P.C. by extending him benefit of doubt.

In the present case, occurrence has taken place in the year, 2005. The appellants, namely Bhairu Ram, Smt. Prem Devi, Lalchand and Smt. Kamlesh have been convicted and sentenced for commission of offence punishable under Section 498-A I.P.C. to six months simple imprisonment and to pay a fine of Rs. 300/-.

Considering the fact that the appellants are in the corridors of the Court from last ten-years and they are not previous convicts, we are of the view that sending the appellants, namely Bhairu Ram, Smt. Prem Devi, Lalchand and Smt. Kamlesh behind the bars, at this stage, will not serve the ends of justice.

Consequently, we order that the appellants, namely Bhairu Ram, Smt. Prem Devi, Lalchand and Smt. Kamlesh shall be released on probation to enable them to follow the path of rectitude and be of good conduct.

Consequently, the sentence awarded upon the appellants, namely Bhairu Ram, Smt. Prem Devi, Lalchand and Smt. Kamlesh is suspended and they are ordered to be released on probation for a period of six months on furnishing of requisite bonds and surety bonds to the satisfaction of the trial Court. The trial Court may incorporate all the necessary conditions to be followed by the appellants during period of probation in the bonds.

We also impose cost of Rs. 10,000/- (Rupees Ten Thousand Only) upon each appellant, namely Bhairu Ram, Smt. Prem Devi, Lalchand and Smt. Kamlesh. The cost shall be deposited by the appellants in the trial Court. The cost, so deposited shall be disbursed to the legal heirs of deceased Sanjubala @ Beena.

As a result of above discussions, D.B. Criminal Appeal bearing No. 1603/2007 filed by appellant Mukesh is, hereby, dismissed. His conviction and sentence for offence punishable under Section 302 I.P.C. is, hereby, uphold.

In view of conviction of the appellant for offence under Section 302 I.P.C., the conviction for offence under Section 304-B I.P.C. being superfluous, is, hereby, set aside.

We also uphold the conviction and sentence awarded to the appellant, Mukesh for offence punishable under Section 201 I.P.C. and 498-A I.P.C. All sentences awarded upon appellant Mukesh as ordered by the trial Court shall run concurrently.

However, D.B. Criminal Appeal bearing No. 1421/2007 preferred by Ram Singh is, hereby, accepted. He is acquitted of offences under Sections 201 and 176 I.P.C. for which he was convicted by the trial Court. His conviction and sentence is, hereby, set aside and he is acquitted of all the charges.

D.B. Criminal Appeal bearing No. 1466/2007 instituted by appellants, namely Bhairu Ram, Smt. Prem Devi, Lalchand and Smt. Kamlesh is disposed of by maintaining conviction of the appellants. However, they are ordered to be released on probation for a period of six months in the terms and conditions, noted by us herein above.