Sitaram S/O Narsingh vs State Of Madhya Pradesh

S.K. Gangele, J

These two appeals have been filed against a common judgment dated 14/01/2009 passed in Sessions Trial No. 15/2006. Criminal Appeal No. 171/2009

has been filed by accused-Sitaram and Criminal Appeal No. 285/2009 has been filed by accused-Prahlad Singh, husband of the deceased. Both these

appeals are being decided by this common order.

Prosecution story in brief, is that the deceased was wife of appellant-Prahlad. Accused Prahlad Singh used to torture the decease when she was

living with her in-laws, appellant married with another lady Sunita Bai, sister of accused-Sitaram. Inspite of the fact that appellant had performed

second marriage, family members of the deceased sent the deceased to the house of appellant two to three months before the incident on the basis of

compromise. It is alleged that appellant had killed the deceased and buried the dead body in the field of another accused Sitaram. Dead body was

taken on motor bike. Appellant-Prahlad lodged missing person report at the police station. At the instance of appellant-Prahlad, dead body of the

deceased was recovered after five days of the incident. The police registered FIR and on the interrogation of the appellant, spade and other articles

were seized. AppellantPrahlad was arrested. After investigation charge-sheet was filed against three accused persons. They abjured their guilt during

trial and pleaded innocence. Trial court convicted appellantPrahlad for commission of offence punishable under Sections 302 and 201 of IPC and

awarded sentence for life and R.I. for three years, appellant- Sitaram was convicted for commission of offence punishable under Section 201 of IPC

and awarded sentence for RI three years and accused Gopichand has been acquitted from the offence.

Learned counsel appearing on behalf of appellant-Prahlad has submitted that conviction of appellant is based on circumstantial evidence. Chain of

circumstances is not complete. The memorandum of appellant is not reliable and the statement which was given by him to the police is also not

reliable.

Learned counsel appearing on behalf of appellant-Sitaram has submitted that there is no sufficient evidence to hold appellant- Sitaram guilty for

commission of offence punishable under Section 201 of IPC. In support of his contention learned counsel for the appellant relied on the judgment of

Hon’ble Apex Court delivered in the case of Dinesh Kumar Kalidas Patel Vs. State of Gujarat (2018) 3 SCC 313.

Contrary to this learned Government Advocate has submitted that there is sufficient evidence against appellantPrahlad. On his disclosure dead

body of the deceased was recovered after 5 days. Articles which were used in the murder of the deceased were also seized. Appellant-Prahlad is

husband of the deceased. Trial court has appreciated the evidence properly and awarded proper sentence. In support of his contentions learned

counsel for the appellant relied on the judgment of Hon’ble Supreme Court delivered in the case of Kishore Bhadke Vs. State of Maharashtra

(2017) 3 SCC 760.

PW/1 Jagdish @ Mangu Singh is the father of the deceased. He deposed that marriage of the deceased was performed with the appellant five

years before the incident. A daughter was born. There was a demand of dowry from the family members of the appellant, hence the deceased was

living at my house. I also lodged report against the family members of the appellant, thereafter compromise had taken place and family members of

the appellant agreed that they would give two acres of land to another wife of appellant Sunita and half portion of house, thereafter I had sent the

deceased to the house of the appellant. I alongwith family members tried to find out the deceased, thereafter, police has told us that appellant-Prahlad

informed that he had killed the deceased and concealed the dead body of the deceased. We went to Mundi where SDM and Town Inspector were

also present. Appellant told to police about the place where dead body of the deceased was buried. Dead body of the deceased was taken out

and ornaments were not on the body. He has further admitted in his cross-examination that before three to four days of the death, deceased came to

the house of the appellant.

PW/2 Kadwa is the Kotwar who had digged the earth thereafter dead body of the deceased was taken out from the field of another co-accused

Sitaram. He turned hostile about seizure of the articles.

PW/6 Inder Singh, another witness who is relative of the deceased. He deposed that the family members of the appellant used to torture the

deceased and he was present on the place from where dead body of the deceased was taken out, SDM and other persons were also present at the

place. Police prepared dead body Panchanama Ex. P/18, I signed the same. He further verified the seizure of Spade vide seizure memo Ex. P/14.

From possession of the appellant Mangalsutra and other articles were seized vide seizure memo Ex. P/13. He further verified that on the

instruction of appellant-Prahlad a motor cycle was also seized from 200 meters of the place of incident vide seizure memo Ex. P/16.

PW/9 Prakash Vyas. deposed that I was posted as SDO (Revenue) on 22/12/2005 at Khandwa also came at village Kutawal at the field of

Sitaram, appellant-Prahlad and Sitaram were also present there. Appellant-Prahlad informed the police that he had buried dead body of the deceased,

thereafter Kadwa- Kotwar digged out the field one bag was there and after opening the bag dead body of a lady was found. Mama of the deceased

verified her as Madhuri. Thereafter spot map was prepared which is Ex. P/22, I signed the same.

PW/10 Gabbu, deposed that dead body was recovered from the field of Sitaram who was declared hostile. In his cross examination he admitted

that when he was sleeping in the field a motor cycle came and when I inquired, Sitaram replied. Sitaram had taken out a pipe and he had gone to his

field on motor cycle. Another person was also with him, I could not identify him.

PW/8 Dr. Shanta Tirki, performed postmortem of the deceased. He deposed that there was injury 5â€x2†bruise on the neck of deceased. On

internal examination I noticed injuries on trachea. Thyroid bone and Thyroid cartage were broken. In my opinion the deceased was died due to

strangulation. Death has taken place within six to ten days of the postmortem.

PW/4 I.O. deposed that on investigation appellantPrahlad had admitted that he had killed the deceased by strangulation thereafter, I went to the

spot and prepared spot map Ex. P/6. On the memorandum of the appellant Ex. P/2 spade was seized. Appellant Sitaram was also arrested. Appellant

Prahlad informed that he had buried dead body of the deceased in a filed of Udavat. His memorandum was recorded which is Ex. P/11. Gold articles

were also seized. On instruction of the appellant, Motor Cycle was also seized. S.D.O. was present when the dead body of the deceased was taken

out. I recorded the statements of witnesses.

The Hon’ble Supreme court in the case of Kishore Bhadke Vs. State of Maharashtra (2017) 3 SCC 760 has held as under in regard to

criminal conspiracy leading to murder and fact of recovery of dead body:

It was contended by the counsel for the accused No.3 that the evidence regarding discovery of the dead body of Raman cannot be used against

accused No.3. Inasmuch as, when accused No.3 gave his statement and recorded in the form of Memorandum under Section 27of the Evidence Act,

the Police already knew about the spot where the dead body was thrown as it was disclosed by accused No.2. It was contended that the statement

made by accused No.2 can be used only against accused No.2. This argument has been negatived by the Trial Court after analyzing the decisions

which were brought to its notice, as can be discerned from para 46 to para 53 of the judgment. The Trial Court found that in the present case the

accused Nos.2 and 3 made disclosure (about the spot where dead body of Raman was thrown by them) one after another in quick succession and that

their statement came to be recorded separately. The only thing that had happened was a joint discovery made at the instance of both the accused

Nos.2 and 3, on proceeding to the spot along with the police.Section 27of the Evidence Act is an exception to Section 25of the Act. Section

25mandates that no confession to a Police Officer while in police custody shall be proved as against a person accused of any offence. Section 27,

however, provides that any fact deposed to and discovered in consequence of information received from a person accused of any offence, in the

custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby

discovered, may be proved.

The fact where the dead body of deceased Raman was disposed, was disclosed by both the accused Nos.2 and 3 to the Investigating Officer in

the presence of SK Idris (PW 2) one after another on 12th May 2003 at 3.05 hrs and 3.25 hrs. respectively. The discovery was made only after

accused Nos.2 and 3 were taken together by the police to the spot in the neighbouring State (Madhya Pradesh), where the recovery Panchnama was

recorded bearing Exh.76A. In other words, the disclosure of the relevant fact by accused No.3 to the Investigating Officer preceeded the discovery of

dead body from the disclosed spot at the instance of both the accused Nos. 2 and 3. It was not a case of recording of statement of accused No.3 after

discovery nor a joint statement of accused Nos.2 and 3, but disclosure made by them separately in quick succession to the Investigating Officer,

preceding the discovery of the fact so stated. The fact disclosed by them, therefore, and the discovery made at their instance, was admissible against

both the accused in terms of Section 27of the Evidence Act.

In the case of State (NCT of Delhi) Vs. NavjotSandhu,[20] this Court has held that a joint disclosure or simultaneous disclosures, per se, are not

inadmissible under Section 27. A person accused need not necessarily be a single person, but it could be a plurality of the accused. The Court held that

a joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in chorus. When two

persons in custody are interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact

which was reduced into writing, such disclosure by two or more persons in police custody do not go out of the purview of Section 27altogether. What

is relevant is that information given by one after the other without any break, almost simultaneously, as in the present case and such information is

followed up by pointing out the material things by both of them then there is no good reason to eschew such evidence from the regime of Section 27.

Whether that information is credible is a matter of evaluation of evidence. The Courts below have accepted the prosecution version in this behalf,

being credible. Suffice it to say that the disclosure made by Accused No. 3 about the relevant fact, per se, is not inadmissible.â€​

In the present case dead body of the deceased was recovered on the disclosure of appellant-Prahlad. Deceased was wife of the appellant. The

conduct of the appellant is also suspicious. He lodged missing report of the deceased. From the evidence of doctor who performed postmortem of the

deceased, this fact has been established that deceased was died due to strangulation. The articles which were wearing by the deceased have also

been recovered on the instruction of the appellant. In view of the evidence on record, in our opinion, the trial court has rightly held that the appellant

has murdered his wife and thereafter concealed her body, hence, conviction and sentence awarded by the trial court to appellant-Prahlad is proper.

Now the next question is that whether there is sufficient evidence to convict appellant Sitaram for commission of offence punishable under Section

201 of the IPC. There is evidence that dead body of the deceased was recovered from the field of accused-Sitaram. PW/10 is the only witness who

deposed that he had seen appellant-Sitaram in the night on a motor cycle and another person was with him. He did not mention name of another

person.

The Hon’ble Apex Court in the case of Dinesh Kumar Kalidas Patel Vs. State of Gujarat (2018) 3 SCC 313 has held as under in regard to

ingredients which have to be proved for commission of offence punishable under Section 201 of IPC.

“8. Relying on Palvinder Kaur (supra), this Court in Suleman Rehiman (supra), made the following observation:

“6. The conviction of Appellant 2 under Section 201IPC depends on the sustainability of the conviction of Appellant 1 under Section 304-A IPC. If

Appellant 1 was rightly convicted under that provision, the conviction of Appellant 2 under Section 201IPC on the facts found cannot be challenged.

But on the other hand, if the conviction of Appellant 1 under Section 304-AIPC cannot be sustained, then, the second appellant’s conviction under

Section 201IPC will have to be set aside, because to establish the charge under Section 201, the prosecution must first prove that an offence had been

committed not merely a suspicion that it might have been committed â€" and that the accused knowing or having reason to believe that such an

offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear. The

proof of the commission of an offence is an essential requisite for bringing home the offence under Section 201IPC â€" see the decision of this Court

in Palvinder Kaur v. State of Punjab.â€​

It is necessary to note that the reason for acquittal under Section 201in the above case was that there was no evidence to show that the rash and

negligent act of appellant No.1 caused the death of the deceased. Hence, the court acquitted appellant No. 2 under Section 201. The observation at

paragraph 6 has to be viewed and analysed in that background.

In Ram Saran Mahto and another v. State of Bihar4, this Court discussed Kalawati (supra) and Palvinder Kaur (supra). It has been held at

paragraphs13 to 15 that conviction under the main offence is not necessary to convict the offender under Section 201of the IPC. To quote:

“13. 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 the prosecution should have established two premises. The first is that an offence has been committed and the 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 statedby a three-Judge Bench of this Court way back in 1952, in Palvinder Kaur v. State of Punjab:

“14. In order to establish the charge under Section 201, Penal Code, it is essential to prove that an offence has been committed, â€" mere suspicion

that it has been committed is not sufficient â€" 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.â€​

It is well to remind that the Bench gave a note ofcaution that the court should safeguard itself against the danger of basing its conclusion on

suspicions however strong they may be. In Kalawati v. State of H.Pa Constitution Bench of this Court has, no doubt, convicted an accused under

Section 201IPC 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 v. State of U.P. this Court has repeated the caution in the following words: (SCC p. 575, para 1)

“Before a conviction under Section 201can 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.â€​

In V.L. Tresa v. State of Kerala5, this Court has discussed the essential ingredients of the offence under Section 201of the IPC at paragraph 12:

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

(I) committal of an offence;

(II) person charged with the offence underSection 201must have the knowledge or reason to believe that the main offence has been committed;

(III) person charged with the offence underSection 201IPC 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.â€​

In Sukhram v. State of Maharashtra6, this Court discussed Kalawati (supra), Palvinder Kaur (supra), Suleman Rehiman (supra) and V.L. Tresa

(supra) among others. The essential ingredients for conviction under Section 201of the IPC have been discussed at paragraph 18:

“18. 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. To (2001) 3 SCC 549 (2007) 7 SCC 502 bring home an offence

under Section 201IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201must

have the knowledge or reason to believe that an offence has been committed; (iii) person charged with the said offence should have caused

disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that

intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the

offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence

under Section 201IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information

sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the

offender, known or unknown.â€​

In Sou Vijaya @ Baby v. State of Maharashtra7, though this Court held that the decision in V.L. Tresa (supra) was of no assistance to the State

in the particular facts, it re-iterated that  “there is no quarrel with the legal principle that notwithstanding acquittal with reference to the offence

under Section 302IPC, conviction under Section 201is permissible, in a given case.â€​ (2003) 8 SCC 296 14.

The decisions in Sou Vijaya (supra) and V.L. Tresa (supra) were noticed in State of Karnataka v. Madesha8. While the appeal of the State was

dismissed, this Court in unmistakeable terms held that:

“9. It is to be noted that there can be no dispute that Section 201would have application even if the main offence is not established in view of what

has been stated in V.L. Tresa and Sou. Vijaya cases…â€​

Thus, the law is well-settled that a charge underSection 201of the IPC can be independently laid and conviction maintained also, in case the

prosecution is able to establish that an offence had been committed, the person charged with the offence had the knowledge or the reason to believe

that the offence had been committed, the said person has caused disappearance of evidence and such act of disappearance has been done with the

intention of screening the offender from legal punishment. Mere suspicion is not sufficient, it must be proved that the accused knew or had a reason to

believe that the offence has been committed and yet he caused the evidence to disappear so as to screen the offender. The offender may be either

himself or any other person. (2007) 7 SCC 35 16.

Having thus analysed the legal position, we shall revert to the factual matrix and see whether the conviction in the facts and circumstances of the

case under Section 201of the IPC could be sustained. An analysis of the judgment of the Sessions Judge in this context would be quite relevant. At

paragraph-16, having analysed the facts and having referred to the minute details of the alleged commission of the offence, the court has entered the

following finding:

“16....In this manner this entire case suggest that the behaviour of the accused no. 1 was very suspicious. He has not undertaken the process for

the PM of the dead body. He has not declared the facts before the police and the last rites of the dead body have been performed before the maternal

family reaches from Ahmedabad. In this manner, while considering the facts on record I come at a conclusion that the accused no. 1 has failed in his

duty as a husband. The husband has kept the wife in a bungalow and has most of the time remained away from her. This is very torturing and

harassing for a wife. Thus as per my opinion it is proved by the prosecution on the basis of the facts on record and especially the chit at 0-1 that there

was mental harassment upon the deceased Lila, from the side of the accused no.1. The fact remains that the accused no.1 has not informed the police

even though an unnatural death has occurred and the last rites have also been performed without performing the post-mortem and without informing

the police. Thus as per my opinion the accused no. 1 is prima facie guilty of the crime under section 498(a)and 201of the IPC and therefore the

prosecution has proved the case partly in affirmation.â€​

The principal of law laid down is that in convicting an accused under Section 201 of IPC, the prosecution has to prove that the person hadÂ

knowledge or the reason to believe that the offence had been committed, the said person has caused disappearance of evidence and such act of

disappearance has been done with the intention of screening the offender from legal punishment. Mere suspicion is not sufficient. In the present case

there is evidence of PW/10 that he had seen accused-Sitaram in one night on a motor cycle. The dead body of the deceased was recovered from the

field of accusedSitaram, however, this evidence is not sufficient to hold the accused-Sitaram guilty for commission of offence punishable under

Section 201 of IPC beyond reasonable doubt. Hence, in our opinion the conviction of the accused-Sitaram is not proper.

Consequently, the appeal filed by appellant-Prahlad Cr.A. No. 285/2009 is hereby dismissed. He is in jail, he shall suffer jail sentence as

awarded by the trial court. Appeal filed byappellant-Sitaram Cr.A. No. 171/2009 is hereby allowed. His conviction and sentence awarded by the trial

court vide impugned judgment is hereby set-aside. He is in bail, his bail bonds are hereby discharged.