CASE NO.: Appeal (crl.) 407 of 2001 PETITIONER: State of Karnataka RESPONDENT: Madesha and Ors DATE OF JUDGMENT: 01/08/2007 BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a
Division Bench of the Karnataka High Court directing
acquittal of the respondents.
2. In this appeal, a notice limited to applicability of Section
201 of the Indian Penal Code, 1860 (in short the ‘IPC’) was
issued by this Court. The High Court came to the conclusion
that Section 201 IPC can only be applied to situations wherein
an offence has taken place and the accused did some act
towards screening the offenders and more importantly
destroying or tampering with the evidence. When no offence
was established to have been committed, Section 201 will not
be applicable.
3. This Court had occasion to deal with such plea. In V.L.
Tresa v. State of Kerala (2001 (3) SCC 549) it was noted as
follows:
“9. The issue thus pertains to the
maintainability of conviction and sentence
under Section 201. The law on this score is
well settled since the decision in Kalwati case
wherein Chandrasekhara Aiyar, J, speaking for
the Bench observed:
“21. But there can scarcely be any
doubt that she must have witnessed
the murder of her husband lying
next to her on a charpai. Shibbi who
was at a distance of 18 feet was
roused by the sound of a sword
attack. Kalawati must have woken
up also at least during the course of
the assault if not at its
commencement, several injuries
having been inflicted in succession.
When Shibbi woke up, Kalawati’s
bed was empty, and she was found
in a room nearby and not at the
place of occurrence. She trotted out
an elaborate story of dacoity, which
cannot be accepted as true. Even if,
in terror she ran away from her bed
and stood at a distance, she is
almost sure to have known who was
the offender, unless he had his face
muffled. The first version she gave
to the police head constable when
he appeared on the scene
immediately after the occurrence is,
we think, false, and we are of
opinion that she knew or believed it
to be false. The borderline between
abetment of the offence and giving
false information to screen the
offender is rather thin in her case,
but it is prudent to err on the safe
side, and hold her guilty only of an
offence under Section 201 Penal
Code, as the learned Sessions Judge
did.”
xx xx xx
11. Section 201 IPC reads as below:
“201. 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,
causes 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.”
12. Having regard to the language used, the
following ingredients emerge:
(I) commission of an offence;
(II) person charged with the offence under
Section 201 must have the knowledge or
reason to believe that the main offence
has been committed;
(III) person charged with the offence under
Section 201 1PC 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.
xx xx xx xx
14. Having regard to the language used, mere
suspicion would not be sufficient. There must
be available on record cogent evidence that the
accused has caused the evidence to disappear
in order to screen another known or unknown.
The foremost necessity being that the accused
must have the knowledge or have reason to
believe that such an offence has been
committed. This observation finds support in
the oft-cited decision of this Court in Palvinder
Kaur v. State of Punjab. Further, in Roshan
Lal v. State of Punjab, this Court in AIR para
12 of the Report observed:
“(12) Section 201 is somewhat
clumsily drafted but we think that
the expression ‘knowing or having
reason to believe’ in the first
paragraph and the expression
‘knows or believes’ in the second
paragraph are used in the same
sense. Take the case of an accused
who has reason to believe that an
offence has been committed. If the
other conditions of the first
paragraph are satisfied, he is guilty
of an offence under Section 201. If it
be supposed that the word ‘believes’
was used in a sense different from
the expression ‘having reason to
believe’, it would be necessary for
the purpose of inflicting punishment
upon the accused to prove that he
‘believes’ in addition to ‘having
reason to believe’. We cannot impute
to the legislature an intention that
an accused who is found guilty of
the offence under the first
paragraph would escape
punishment under the succeeding
paragraphs unless some additional
fact or state of mind is proved.”
4. The position was re-iterated in Sou. Vijaya @ Baby v.
State of Maharashtra (2003 (8) SCC 296) as follows:
“6. Section 201 IPC presents a case of
accusations after the fact. “An accessory after
the fact” said Lord Hale, “may be, where a
person knowing a felony to have been
committed, receives, comforts, or assists the
felon”. (See 1 Dale 618.) Therefore, to make an
accessory ex post facto it is in the first place
requisite that he should know of the felony
committed. In the next place, he must receive,
relieve, comfort, or assist him. And, generally
any assistance whatever given to a felon to
hinder his being apprehended, tried or
suffering punishment, makes the assister an
accessory. What Section 201 requires is that
the accused must have had the intention of
screening the offender. To put it differently, the
intention to screen the offender, must be the
primary and sole object of the accused. The
fact that the concealment was likely to have
that effect is not sufficient, for Section 201
speaks of intention as distinct from a mere
likelihood.
7. Section 201 punishes any person, who
knowing that any offence has been committed,
destroys the evidence of that offence or gives
false information in order to screen the
offender from legal punishment. Section 201 is
designed to penalize “attempts to frustrate the
course of justice”.
5. In this case, however, there was no evidence on record to
attribute knowledge of the commission of offence to the
accused. Therefore, it was held that Section 201 IPC cannot be
applied.
6. Learned counsel for the State has submitted that
evidence of PW-26 establishes that the accused persons A-3
and A-4 had thrown the body of the deceased to fire. It was
submitted that there was no question of exercising the right of
private defence vis-`-vis the deceased and, therefore, the order
passed by the High Court cannot be maintained.
7. Learned counsel for the respondents on the other hand
supported the order of acquittal.
8. Coming to the question whether the plea relating to
exercise of right of private defence can be made available vis-`-
vis the deceased who had no role to play in the dispute, the
provisions of Section 106 IPC needs to be noted. It reads as
follows:
“106-Right of private defence against deadly
assault when there is risk of harm to innocent
person- If in the exercise of the right of private
defence against an assault which reasonably
causes the apprehension of death, the
defender be so situated that he cannot
effectually exercise that right without risk of
harm to an innocent person, his right of
private defence extends to the running of that
risk.”
9. Therefore, the possibility of the right of private defence
vis-`-vis the deceased has to be considered in the background
of what was stated in Section 106 IPC. It has been held that
A-1 to A-5 were not the members of any unlawful assembly. A
specific stand was that A-3 and A-4 had thrown the body of
the deceased to fire and reliance was placed on the evidence of
PW-26.
10. It is to be noted that there can be no dispute that
Section 201 would have application even if the main offence is
not established in view of what has been stated in V.L. Tresa’s
and Sou. Vijaya’s cases (supra). PW-26 who was the star
witness was not believed by the trial Court and the High Court
and it was held that his evidence was not cogent and credible.
Therefore, while clarifying the position in law we find no scope
for interference with the order of the High Court in view of the
specific findings recorded regarding the role played by A-3 and
A-4.
11. The appeal fails and is dismissed.