DINESH KUMAR KALIDAS PATEL versus THE STATE OF GUJARAT on 12 February 2018

[2018] 1 S.C.R. 641

DINESH KUMAR KALIDAS PATEL

v.

THE STATE OF GUJARAT

(Criminal Appeal Nos. 265-266 of 2018)

FEBRUARY 12, 2018

[KURIAN JOSEPH AND AMITAVA ROY, JJ.]

Penal Code, 1860:

s.201 – Whether conviction under s.201 could be maintainedwhile acquitting the accused of main offence – Held: A charge unders.201 can be independently laid and conviction maintained also, incase the prosecution is able to establish that an offence had beencommitted, the person charged with the offence had the knowledgeor the reason to believe that the offence had been committed, thesaid person has caused disappearance of evidence and such act ofdisappearance has been done with the intention of screening theoffender from legal punishment – Mere suspicion is not sufficient,it must be proved that the accused knew or had a reason to believethat the offence has been committed and yet he caused the evidenceto disappear so as to screen the offender.

s.201 – Unnatural death – Prosecution case was that the wifeof the accused committed suicide by hanging – Last rites attendedby father and brother of the deceased – After four months the fatherof the deceased initiated criminal proceedings against accusedunder various sections including s.498A and s.201 – Trial courtconvicted the accused under s.498A and s.201, however, High Courtset aside conviction under s.498A while maintaining convictionunder s.201 on the ground that appellant did not give intimation tothe police of the unnatural death and that no post mortem wasconducted – On appeal, held: Neither the trial court nor the HighCourt had any case that there was any intentional omission to giveinformation by the appellant to the police under s.202 against theappellant – Mere fact that deceased allegedly died an unnaturaldeath could not be sufficient to bring home a charge under s.201 –Unless prosecution was able to establish that accused knew or hadreason to believe that an offence has been committed and had done

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Asomething causing the offence of commission of evidence todisappear he cannot be convicted – There was no such allegationagainst the appellant – The last rites of the deceased were performedin the presence of the members of her family – They had no suspicionat that time of the commission of any offence – The private complaintwas lodged after more than three months – It was also not the caseBof the complainant that he had requested for post-mortem of thebody and that intimation should have been given to the police beforethe last rites were performed – In the facts and circumstances, theconviction of the appellant under s.201 was not maintainable.

Allowing the appeals, the CourtCHELD: 1. The High Court is not justified in maintainingthe conviction under Section 201 only on the ground that nocommunication was given to the police and that the post-mortemhad not been performed. The Trial Court has taken note of thefact that the father of the deceased and her brother (who is aDdoctor) had attended the last rites of the deceased and neither ofthem had any complaint or suspicion at that time of the commissionof any offence. The Sessions Court has also taken note of thesuicide note left by the deceased wherein she had taken the entireblame on herself. Yet the court has taken the view, from theEconsideration we have extracted from paragraph-16 of theSessions court judgment, that the deceased might have been in astate of depression having remained alone for most of the timeand it amounted to torture. The appellant has been acquitted ofthe offence under Section 498A by the High Court, and rightlyso. The prosecution has also not been able to satisfy theFingredients under Section 201 of the IPC. Neither the SessionsCourt nor the High Court has any case that there is any intentionalomission to give information by the appellant to the police. It isalso to be noted that prosecution has no case under Section 202of the IPC against the appellant. [Para 20] [651-B-E]G

2. There is no such allegation against the appellant. Thelast rites of the deceased were performed in the presence of themembers of her family. They had no suspicion at that time of thecommission of any offence. The private complaint was lodgedafter more than three months. There is no charge under SectionH202 of the IPC of intentionally omitting to give information of the AB

unnatural death to the police. It is also not the case of thecomplainant that he had requested for post-mortem of the bodyand that intimation should have been given to the police beforethe last rites were performed. In the above facts andcircumstances, the Sessions Court is not justified in convictingthe appellant under Section 201 of the IPC and the High Courtmaintaining the same. [Paras 22, 23] [651-G-H; 652-A-B]

Hanuman and others v. State of Rajasthan (1994) Supp2 SCC 39; Palvinder Kaur v. State of Punjab AIR 1952SC 354 : [1952] SCR 94; Suleman Rehiman Mulaniand another v. State of MaharashtraAIR 1968 SC829 : [1968] SCR 515; Ram Saran Mahto and anotherv. State of Bihar (1999) 9 SCC 486 : [1999] 2 Suppl.SCR 250; V.L. Tresa v. State of Kerala(2001) 3 SCC549 : [2001] 1 SCR 973; Sukhram v. State ofMaharashtra (2007) 7 SCC 502 : [2007] 9 SCR 44;Sou Vijaya @ Baby v. State of Maharashtra (2003) 8SCC 296 : [2003] 3 Suppl. SCR 340; State of Karnatakav. Madesha (2007) 7 SCC 35 : [2007] 8 SCR 757;Hanuman and others v. State of Rajasthan (1994) Suppl.2 SCC 39 – relied on.

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Smt. Kalawati and Ranjit Singh v. State of HimachalPradesh AIR 1953 SC 131 : [1953] SCR 546 –distinguished.

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Case Law Reference

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ACRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 265-266 of 2018.

From the Judgment and Order dated 16.12.2015 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 939 of 1995 with CriminalAppeal No. 1132 of 1995.

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P. B. Suresh, Vipin Nair, Abhay Pratap Singh, Advs. for theAppellant.

D. N. Ray, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. ShodhikaSharma, Advs. for the Respondent.

CThe Judgment of the Court was delivered by KURIAN, J.: 1. Leave granted.

2. The appellant was convicted by the Sessions Judge, Mehsana(State of Gujarat) for offences under Sections 498A and 201 of theIndian Penal Code, 1860 (hereinafter referred to as “the IPC”). ADsentence of one year rigorous imprisonment and a penalty of Rs.1,000/-with a default sentence of three months was awarded under Section498A and six months and Rs.500/- with a default sentence of one monthfor the offence under Section 201 of the IPC.

3. This is a case where the appellant’s wife committed suicide byEhanging. The incident took place on 26.12.1990. The information wasconveyed to the family of the deceased. The father and brother of thedeceased, who is a doctor by profession, attended the last rites. Aftermore than three months, the father of the deceased filed a complaintbefore the Judicial Magistrate at Kadi on 01.04.1991. The same wasinvestigated, and the appellant was charged under Sections 304B, 306,F498A and 201 read with Section 120B of the IPC and Section 4 of theDowry Prohibition Act, 1961. Along with the appellant, seven otherpersons also faced the trial. By judgment dated 12.09.1995, the SessionsJudge convicted the appellant under Sections 498A and 201 of the IPCbut acquitted the seven others.G

4. The appeals filed in 1995 were heard in the year 2015 and, asper the impugned judgment, the appellant was acquitted of the offenceunder Section 498A of the IPC but conviction under Section 201 of theIPC was maintained. Thus aggrieved, the appellant is before this Court.

5. Heard learned Counsel appearing for the appellant and learnedHCounsel appearing for the State.

6. Several contentions have been raised on merits. That apart, theappellant has also raised a question of law as to whether the convictionunder Section 201 of the IPC could have been maintained while acquittinghim of the main offence under Section 498A of the IPC.

7. Learned Counsel have placed reliance on the decisions of thisCourt in Palvinder Kaurv. State of Punjab1, Smt. Kalawati andRanjit Singhv. State of Himachal Pradesh2, andSuleman Rehiman3Mulani and anotherv. State of Maharashtra.

8. In Palvinder Kaur(supra), this Court held as follows:

“14. In order to establish the charge under Section 201 of theIndian Penal Code, it is essential to prove that an offence hasbeen committed, — mere suspicion that it has been committed isnot sufficient, — that the accused knew or had reason to believethat such offence had been committed and with the requisiteknowledge and with the intent to screen the offender from legalpunishment causes the evidence thereof to disappear or givesfalse information respecting such offences knowing or havingreason to believe the same to be false.”

The conviction in this case was ultimately set aside on theaforementioned legal position and the facts.

9. The Constitution Bench decision inKalawati(supra) may notbe of much assistance in this case since the facts are completely different.The co-accused was convicted under Section 302 of the IPC for themain offence, and in the peculiar facts and circumstances of that case,this Court deemed it fit to convict Kalawati only under Section 201 ofthe IPC.

10. Relying on Palvinder Kaur(supra), this Court in SulemanRehiman(supra), made the following observation:

“6. The conviction of Appellant 2 under Section 201 IPC dependson the sustainability of the conviction of Appellant 1 under Section304-A IPC. If Appellant 1 was rightly convicted under thatprovision, the conviction of Appellant 2 under Section 201 IPC onthe facts found cannot be challenged. But on the other hand, if 1 AIR 1952 SC 354

2 AIR 1953 SC 131

3 AIR 1968 SC 829

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Athe conviction of Appellant 1 under Section 304-A IPC cannot besustained, then, the second appellant’s conviction under Section201 IPC will have to be set aside, because to establish the chargeunder Section 201, the prosecution must first prove that an offencehad been committed not merely a suspicion that it might havebeen committed — and that the accused knowing or having reasonBto believe that such an offence had been committed, and with theintent to screen the offender from legal punishment, had causedthe evidence thereof to disappear. The proof of the commissionof an offence is an essential requisite for bringing home the offenceunder Section 201 IPC — see the decision of this Court inCPalvinder Kaur v. State of Punjab.”It is necessary to note that the reason for acquittal under Section201 in the above case was that there was no evidence to show that therash and negligent act of appellant No.1 caused the death of the deceased.Hence, the court acquitted appellant No. 2 under Section 201. TheDobservation at paragraph 6 has to be viewed and analysed in thatbackground.

11. In Ram Saran Mahto and anotherv.State of Bihar4, this Court discussed Kalawati(supra) and Palvinder Kaur(supra). It hasbeen held at paragraphs-13 to 15 that conviction under the main offenceEis not necessary to convict the offender under Section 201 of the IPC.To quote:

“13.It is not necessary that the offender himself should havebeen found guilty of the main offence for the purpose of convictinghim of offence under Section 201. Nor is it absolutely necessaryFthat somebody else should have been found guilty of the mainoffence. Nonetheless, it is imperative that the prosecution shouldhave established two premises. The first is that an offence hasbeen committed and the second is that the accused knew about itor he had reasons to believe the commission of that offence. Thenand then alone the prosecution can succeed, provided the remainingGpostulates of the offence are also established.

14. The above position has been well stated by a three-JudgeBench of this Court way back in 1952, in Palvinder Kaur v.State of Punjab:

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“In order to establish the charge under Section 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 offencehad been committed and with the requisite knowledge and withthe intent to screen the offender from legal punishment causesthe evidence thereof to disappear or gives false informationrespecting such offences knowing or having reason to believethe same to be false.”

15. It is well to remind that the Bench gave a note of caution thatthe court should safeguard itself against the danger of basing itsconclusion on suspicions however strong they may be. In Kalawativ. State of H.P a Constitution Bench of this Court has, no doubt,convicted an accused under Section 201 IPC even though he wasacquitted of the offence under Section 302. But the said coursewas adopted by this Court after entering the finding that anotheraccused had committed the murder and the appellant destroyedthe evidence of it with full knowledge thereof. In a later decisionin Nathu v. State of U.P. this Court has repeated the caution inthe following words: (SCC p. 575, para 1)

“Before a conviction under Section 201 can be recorded, itmust be shown to the satisfaction of the court that the accusedknew or had reason to believe that an offence had beencommitted and having got this knowledge, tried to screen theoffender by disposing of the dead body.”

12. In V. L. Tresav.State of Kerala5, this Court has discussedthe essential ingredients of the offence under Section 201 of the IPC atparagraph 12:

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

(I) committal of an offence;

(II) person charged with the offence under Section 201 musthave the knowledge or reason to believe that the main offencehas been committed;

(III) person charged with the offence under Section 201 IPC

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648SUPREME COURT REPORTS

[2018] 1 S.C.R.

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(IV) the act should have been done with the intention ofscreening the offender from legal punishment.”

13. InSukhramv. State of Maharashtra6, this Court discussedBKalawati(supra),Palvinder Kaur(supra),Suleman Rehiman(supra)and V.L. Tresa(supra) among others. The essential ingredients forconviction under Section 201 of the IPC have been discussed at paragraph18:

“18. The first paragraph of the section contains the postulatesCfor constituting the offence while the remaining three paragraphsprescribe three different tiers of punishments depending upon thedegree of offence in each situation. To bring home an offenceunder Section 201 IPC, the ingredients to be established are: (i)committal of an offence; (ii) person charged with the offenceDunder Section 201 must have the knowledge or reason to believethat an offence has been committed; (iii) person charged withthe said offence should have caused disappearance of evidence;and (iv) the act should have been done with the intention ofscreening the offender from legal punishment or with that intentionhe should have given information respecting the offence, whichEhe knew or believed to be false. It is plain that the intent to screenthe offender committing an offence must be the primary and soleaim of the accused. It hardly needs any emphasis that in order tobring home an offence under Section 201 IPC, a mere suspicionis not sufficient. There must be on record cogent evidence toFprove that the accused knew or had information sufficient to leadhim to believe that the offence had been committed and that theaccused has caused the evidence to disappear in order to screenthe offender, known or unknown.”

In Sou Vijaya @ Babyv. State of Maharashtra7, though this GCourt held that the decision inV. L. Tresa (supra) was of no assistanceto the State in the particular facts, it re-iterated that “there is no quarrelwith the legal principle that notwithstanding acquittal with referenceto the offence under Section 302 IPC, conviction under Section201 is permissible, in a given case.” 6 (2007) 7 SCC 502H 7 (2003) 8 SCC 296

14. The decisions in Sou Vijaya(supra) andV. L. Tresa(supra)8were noticed in State of Karnatakav. Madesha. While the appeal ofthe 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 establishedin view of what has been stated in V.L. Tresa and Sou. Vijayacases…”

15. Thus, the law is well-settled that a charge under Section 201of the IPC can be independently laid and conviction maintained also, incase the prosecution is able to establish that an offence had beencommitted, the person charged with the offence had the knowledge orthe reason to believe that the offence had been committed, the saidperson has caused disappearance of evidence and such act ofdisappearance has been done with the intention of screening the offenderfrom legal punishment. Mere suspicion is not sufficient, it must be provedthat the accused knew or had a reason to believe that the offence hasbeen committed and yet he caused the evidence to disappear so as toscreen the offender. The offender may be either himself or any otherperson.

16. Having thus analysed the legal position, we shall revert to thefactual matrix and see whether the conviction in the facts andcircumstances of the case under Section 201 of the IPC could besustained.

17. An analysis of the judgment of the Sessions Judge in this contextwould be quite relevant. At paragraph-16, having analysed the facts andhaving referred to the minute details of the alleged commission of theoffence, the court has entered the following finding:

“16....In this manner this entire case suggest that the behaviourof the accused no. 1 was very suspicious. He has not undertakenthe process for the PM of the dead body. He has not declared thefacts before the police and the last rites of the dead body havebeen performed before the maternal family reaches fromAhmedabad. In this manner, while considering the facts on recordI come at a conclusion that the accused no. 1 has failed in his dutyas a husband. The husband has kept the wife in a bungalow andhas most of the time remained away from her. This is very torturing 8 (2007) 7 SCC 35

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Aand harassing for a wife. Thus as per my opinion it is proved bythe prosecution on the basis of the facts on record and especiallythe chit at 0-1 that there was mental harassment upon the deceasedLila, from the side of the accused no.1. The fact remains that theaccused no.1 has not informed the police even though an unnaturaldeath has occurred and the last rites have also been performedBwithout performing the post-mortem and without informing thepolice. Thus as per my opinion the accused no. 1 is prima facieguilty of the crime under section 498(a) and 201 of the IPC andtherefore the prosecution has proved the case partly inaffirmation.”

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18. The High Court, in appeal, however, took the view that theappellant was not liable to be convicted under Section 498A of the IPC.However, his conviction under Section 201 of the IPC was liable to bemaintained. To quote:

“5... We have re-appreciated and re-evaluated the evidence onDthe touchstone of the latest decisions of the Hon’ble Apex Court.Taking into consideration the fact that the complaint was lodgedalmost after a period of four months of the incident in question,the fact remains is that no post mortem was performed of thedeceased. Even if the case of defence is accepted, it was aEpremature and unnatural death and therefore the mandatoryrequirements under the law, at least to inform the police of thedeath and to get the post mortem of the deceased done, were notfulfilled. Admittedly, nothing has come on record to show that thepost mortem was carried out and/or the police complaint wasimmediately filed. Considering the said aspect, we have all reasonsFto believe that the offence is made out under section 201 of theIPC. However, so far as offence punishable under Section 498Aof the IPC is concerned, we believe the contention of Mr.Anandjiwala, learned senior advocate for the accused No.1, thatalmost after a period of four months, the complaint was lodgedGand there is nothing on record to substantiate the case of theprosecution qua cruelty being perpetrated to the deceased forwant of dowry and on the contrary, the accused No.1 had helpedthe father of the deceased and gave Rs.1 lakh. Under thecircumstances, we are of the opinion that the learned trial judgehas rightly convicted the accused No.1 for the offence punishable D

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under Section 201 of the IPC, however, has committed an error inholding conviction of the accused No.1 for the offence punishableunder Section 498A of the IPC and same is not sustainable.”

19. Thus, the only ground for maintaining the conviction underSection 201 of the IPC is that the appellant did not give intimation to thepolice of the unnatural death and that no post-mortem was conducted.

20. We are afraid, the High Court is not justified in maintainingthe conviction under Section 201 only on the ground that no communicationwas given to the police and that the post-mortem had not been performed.The Trial Court has taken note of the fact that the father of the deceasedand her brother (who is a doctor) had attended the last rites of thedeceased and neither of them had any complaint or suspicion at thattime of the commission of any offence. The Sessions Court has alsotaken note of the suicide note left by the deceased wherein she hadtaken the entire blame on herself. Yet the court has taken the view, fromthe consideration we have extracted from paragraph-16 of the Sessionscourt judgment, that the deceased might have been in a state of depressionhaving remained alone for most of the time and it amounted to torture.The appellant has been acquitted of the offence under Section 498A bythe High Court, and rightly so. The prosecution has also not been able tosatisfy the ingredients under Section 201 of the IPC. Neither the SessionsCourt nor the High Court has any case that there is any intentionalomission to give information by the appellant to the police. It is also to benoted that prosecution has no case under Section 202 of the IPC againstthe appellant.

21. As held by this Court in Hanuman and othersv. State of9Rajasthan, the mere fact that the deceased allegedly died an unnaturaldeath could not be sufficient to bring home a charge under Section 201of the IPC. Unless the prosecution was able to establish that the accusedperson knew or had reason to believe that an offence has been committedand had done something causing the offence of commission of evidenceto disappear, he cannot be convicted.

22. There is no such allegation against the appellant. The last ritesof the deceased were performed in the presence of the members of herfamily. They had no suspicion at that time of the commission of anyoffence. The private complaint was lodged after more than three months.

9 1994 Supp (2) SCC 39

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AThere is no charge under Section 202 of the IPC of intentionally omittingto give information of the unnatural death to the police. It is also not thecase of the complainant that he had requested for post-mortem of thebody and that intimation should have been given to the police before thelast rites were performed.

B23. In the above facts and circumstances, we are of the view thatthe Sessions Court is not justified in convicting the appellant under Section201 of the IPC and the High Court maintaining the same. Accordingly,the appeals are allowed. The conviction of the appellant under Section201 of the IPC is set aside.

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Devika Gujral

Appeals allowed.

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