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REPORTABLE

   IN THE SUPREME COURT OF INDIA      CRIMINAL APPELLATE JURISDICTION

     CRIMINAL APPEAL NO. 40 OF 2007

PADMINI MAHENDRABHAI GADDA                       … APPELLANT

VERSUS

STATE OF GUJARAT                     … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

1. Aggrieved by the judgment and order, dated 4th October, 2006,

passed  by  the  High  Court  of  Gujarat  at  Ahmadabad  in

Criminal  Appeal  No.  833 of  1997 and Crl.M.A.  No.  1121 of

1998 in Crl.A. No. 833 of 1997, the appellant is before this

Court.

2. The  facts  of  the  case  in  a  nutshell  as  presented  by  the

prosecution, are that the appellant herein and Mahendrabhai

(deceased) had love marriage in the year 1981 and they were

blessed with two daughters. The deceased was running health

clubs in the city of Ahmedabad in the name and style of P.M.

Health Club at two different locations; one at Naranpura and

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the other at Ambawadi.  Accused No.1 i.e. Kishore Thakkar

was employed by the deceased to work at Naranpura location.

With  passage  of  time,  the  appellant  (A2)  developed

extramarital  relationship  with  Kishore  Thakkar  (A1)  and  in

consequence  of  their  pursuit,  they  planned  together  to

eliminate  Mahendrabhai  (deceased).  In  that  context,  on

12.12.1994,  when  the  complainant’s  wife  contacted  the

appellant at about 10:30 AM, appellant informed her that the

deceased had gone to Naranpura Health Club. Further, when

complainant  enquired  about  the  deceased  at  3:00  PM,

appellant is alleged to have replied that the deceased left for

Bombay. Hearing this, complainant became suspicious about

the way his sister replied.  The complainant along with his

wife,  at  about  4  pm on  that  day,  visited  the  house  of  the

appellant and asked her to go and get her elder child back

from the school. After she went out of the house hesitatingly,

he searched the house and found his brother-in-law lying dead

in a pool of blood in the bathroom and A1 was present there.

As soon as he tried to catch hold of A1, he ran away from the

spot  half  naked  by  pushing  him.   While  that  is  so,  the

appellant  who went  to  bring  back  her  elder  child  from the

school, did not return to her home.

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3.  Basing on the complaint of the brother-in-law of the deceased,

police registered Crime No. I.C.R. 759 of 1994 under Section

302 read with Sections 120B and 201 of Indian Penal Code,

1860  [hereinafter  ‘I.P.C’  for  brevity].   After  conducting

panchnama at the scene of offence, body of the deceased was

sent for postmortem. Carrying on investigation of the crime,

police nabbed and arrested both the accused on 23.01.1995

from  S.T.  Bus  Station,  Mehsana.  After  that,  they  collected

evidences  from various  places  where  both  the  accused had

spent  their  days  together  after  the  date  of  occurrence  until

their arrest.  Upon filing of charge sheet by the police, the trial

court  took  cognizance  of  the  offence  and  framed  charges.

Accused pleaded not guilty and claimed to be tried.  

4. The trial court framed the following charges for trial:

“(1)    On 12-12-1994 before about six o’ clock  in  the  evening  you  all  accused together  with  one  another  absconding accused who has not been arrested, namely, Piyush Sevantilal Raval hatched a criminal conspiracy  to  commit  murder  of  the deceased  Mahendrabhai  at  House  No.1, Shakuntal Apartment, Opp: C.N.Vidhyalaya situated  in  Navrangpura  area,  in Ahmedabad and by doing so you committed an offence under Sec. 120(B) of Indian Penal Code within the jurisdiction of this Court.

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(2) Further  more,  on  the  aforesaid date, time and at the aforesaid place, with regard  to  complete  your  criminal conspiracy,  accused  No.1  and  the absconding  accused  Piyush  by  inflicting numerous blows by knife on the body of the deceased  Mahendrabhai  Gadda,  causing grievous  injuries  intentionally  caused  his death by committing murder and by doing so you accused have committed the offence U/s.302 r/w sec.120(B) of the Indian Penal Code within the jurisdiction of this Court.

(3) Further,  on  the  aforesaid  date, time and place, pursuance to your aforesaid criminal  conspiracy,  you  accused,  by shifting the dead body of the deceased and by cleaning  the  place  of  offence  destroyed the  evidence  with  an  intention  to  get freedom  from  the  imprisonment  of  the offence of murder and thereby you accused have  committed  the  offence  punishable u/S.201 of the Indian Penal Code within the jurisdiction of this Court.  

(4) Further,  on  the  aforesaid  date, time and place, pursuant to your criminal conspiracy, to make pieces of the dead body, committed  an  attempt  to  destroy  the evidence by collecting a needle, jute-thread, plastic  bag,  iron  blade  etc.,  with  an intention to destroy the evidence and to see that  no  evidence  regarding  the  identity  of the dead body as also regarding the injuries caused to Mahendrabhai Gadda is available, and  by  doing  so  you  have  committed  an offence punishable U/s. 201 r/w sec. 511 of the  Indian  Penal  Code  within  the jurisdiction of this Court.  

(5) Further,  on  the  aforesaid  date, time  and  place,  you  accused  No.1  by possessing a deadly weapon like knife with

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you, committed a breach of Public Notice of Prohibition of Arms published by the Police Commissioner,  Ahmedabad  City  and  by doing  so  you  have  committed  the  offence punishable U/s.135(1) of the Bombay Police Act, within the jurisdiction of this Court.”

5. The  trial  court,  after  full-fledged  trial,  came  to  the

conclusion that A1 has committed offences punishable under

Sections 302 and 201 of I.P.C. and Section 135(1) of Bombay

Police Act and convicted him to undergo life imprisonment for

the offences punishable under Section 302 of I.P.C., in default

to  suffer  rigorous  imprisonment  for  3  months,  and  for  the

offence punishable under Section 201 of I.P.C. sentenced him

to undergo rigorous imprisonment for two years and imposed

fine of Rs.5,000/-, in default to suffer rigorous imprisonment

for three months.  Appellant herein, who was convicted for the

offence  punishable  under  Section  201  of  I.P.C  alone,  was

sentenced to undergo rigorous imprisonment for 2 years and

imposed  fine  of  Rs.  5,000/-,  in  default  to  further  suffer

rigorous imprisonment for 3 months.  

6. Both the accused,  being dissatisfied with the judgment of

the trial court, approached the High Court by way of separate

criminal appeals. The High Court, upon considering the facts

and circumstances of the case, initiated suo motu proceedings

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for  enhancement  of  sentence  in  respect  of  accused

No.2/appellant  herein.  The  High  Court  while  rejecting  the

appeals  preferred  by  the  accused,  passed  an  order  in  the

criminal  miscellaneous  application  enhancing  the  sentence

imposed  by  the  trial  court  in  respect  of  accused

No.2/appellant  herein  for  the  offence  punishable  under

Section 201 of I.P.C to rigorous imprisonment for seven years

and  imposed  fine  of  Rs.7,000/-  failing  which  she  had  to

further suffer rigorous imprisonment for two years.   Assailing

the same, the appellant is  before  this Court by way of  this

appeal.  7. Mr.  V.  Giri,  learned  senior  counsel  appearing  for  the

appellant, vehemently contended that the Courts below have

committed serious error in appreciating the evidences against

the appellant and wrongly convicted her under Section 201 of

I.P.C, disregarding numerous vital portions of her statements.

The appellant/accused No. 2 had never been part of the crime

and the reason behind her keeping silence when accused No. 1

made entry into her house and committed the heinous crime

of brutally murdering her husband was that as a matter of

fact, on the fateful day at the time of occurrence, the appellant

was sleeping with her children. Accused No. 1 subjected her to

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remain  under  great  fear  that  if  she  raises  any  alarm,  her

children may also be assaulted by the intruder, which drove

her to be a silent spectator to the incident.  

8. It  is  further  contended  that  after  the  occurrence,  the

appellant has not eloped with accused No.1 willfully but by

taking  advantage  of  their  relationship,  accused  No.  1  has

forcefully  taken  her  to  various  places  and  kept  her  under

fictitious  names.  It  is  also  worthwhile  to  point  that  the

appellant remained silent during her stay with accused No. 1

after the incident because of her apprehension that police and

family members would first of all find fault with her due to her

illicit  relationship  with  the  main  accused.  Even  during  the

period when the appellant was held hostage by accused No. 1

at various places till their arrest, she could not get access to

seek  help  of  anyone  mainly  because,  whenever  the  main

accused went out of the room, he used to keep the appellant

locked inside. This fact is evident from the deposition of PW19

(Ext. 72).  Her behavior at that moment was quite natural and

she had not played any role to destroy the evidence, but the

Courts  below  did  not  appreciate  the  same  in  true  legal

perspective  before  convicting  her  under  Section  201  IPC.

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Taking  a  dig  at  the  order  of  Courts  below,  learned  senior

counsel  submitted that  the  appellant  at  any rate  could not

have been held guilty for the offence merely basing upon the

circumstantial  evidence  i.e.  needle,  jute  thread,  plastic  bag,

iron  blade  etc.,  were  found  in  the  house  of  appellant

connecting  her  to  the  crime and attributing  role  by  way of

aiding the main offender.

9. Advancing  another  fervent  argument  that  the  High  Court

passed  the  impugned  order  in  a  mechanical  way  without

application of legal principles to the case of appellant, learned

senior counsel invited our attention to Ext. 4 to show that the

appellant  was in fact charged for  the offence under Section

201 r/w Section 511 of I.P.C. In that situation, if the appellant

is,  per  se, convicted  for  the  offence,  she  would  have  been

awarded the maximum quantum of sentence which comes up

to three years and six months only.   Placing reliance on a

decision of this Court in Ananda Dagadu Jadhav & Ors. Vs.

Rukminibai Anand Jadhav & Anr. (1993) Supp. (3) SCC 68,

learned senior counsel made a strenuous attempt that the trial

court after considering this aspect by tangible legal principle

took a right view and accordingly imposed sentence. Even if

this  Court  finds  the  appellant  guilty  of  the  offence,  the

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impugned order passed by the High Court should be set aside

restoring that of the trial court.

10. Learned counsel for the State of Gujarat, however, supported

the judgment of the High Court and submitted that the High

Court  has  rendered  the  impugned  judgment  following  just

principles  of  law  and  taking  into  account  the  veracity  of

offence  committed  by  the  appellant,  the  sentence  has  been

reasonably  enhanced  and  the  same  does  not  call  for

interference by this Court.

11. Having  heard  the  learned  counsel  for  both  sides  and

bestowing attention to the voluminous material placed before

this Court, following issues fall for consideration of this Court:

1) Whether the Courts below were right in convicting the

appellant under Section 201 of the Indian Penal Code?

2) Whether  the  High  Court  was  right  in  suo  motu

enhancing the sentence from two years to seven years?

12. I  have  given my anxious consideration to several  aspects

involved in the case. The entire case of the prosecution rests

upon circumstantial evidence except for the direct evidence of

Ami, who is the daughter of the deceased and the appellant. It

is well settled that circumstantial evidence should be strong,

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convincing and unassailable leading to the only inference that

crime should have been committed by the accused only and it

should not give any other inference.  

13. A thorough look at the facts of the case put forth by the

prosecution reveals that accused Nos.1 and 2 are living in an

illicit  relationship  and  in  pursuit  of  the  same,  they  have

committed the murder of the deceased and the complainant is

none other than the brother of appellant and brother-in-law of

the deceased.   

14. Prosecution,  to  bring home the  guilt  of  the  accused,  has

examined  48  witnesses  in  addition  to  voluminous

documentary evidence.  After a full-fledged trial, the trial court

has come to the conclusion that accused No.1 with the help of

the  absconding  accused  has  committed  the  murder  of  the

deceased and held him guilty for the offence punishable under

Sec.302  of  I.P.C.    As  far  as  accused  No.2/appellant  is

concerned, the Court has observed that there is no evidence

available to show that she is a consenting party or she had a

previous meeting of  mind with accused No.1 to murder the

deceased  and  as  such  accused  No.2  is  not  guilty  for  the

offence of murder and for the acts done by accused No.1 of

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committing  the  murder  of  the  deceased.   The  trial  court

further observed that her silence is due to fear and being in a

helpless condition and with an apprehension that her children

and herself might be injured by accused No.1 and absconding

accused.  It is quite natural that accused No.2 could not have

asked for help.  But the trial court opined that up to 1.00 or

2.00 p.m., accused No.1 was away from the place of offence

and during that time, she could have got the help.   

15. The  trial  court  further  observed  that  her  subsequent

conduct can be attributed for her consent or abetment of the

offence of destroying the proof of murder.  Cutting instrument,

its blades, plastic yellow color tags and other articles found at

the place of offence and second part of the plastic yellow tag

found from the house of relative of accused No.1 would go to

show that the preparation for destroying the proof of murder

was planned by accused No.1 and accused No.2 by remaining

silent.  Still the Court felt that she is not a conspirator but

after 7.30 a.m. on 12-12-1994, she allowed accused No.2 to

enter into her house again and remain with the dead body in

the bathroom of the bedroom.  That act shows that either out

of fear or for reasons best known to her, she abetted or aided

the offence punishable  under Section 201 I.P.C.   Regarding

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disappearance of the evidence of offence, it is further observed

by  the  trial  court  that  though  there  is  no  evidence  of

participation of accused No.2 in causing disappearance of the

said proof of offence of murder but by remaining silent, she

abetted the  offence  of  causing disappearance  of  evidence  of

murder and as such convicted both the accused for the offence

under Section 201 I.P.C.  

16. The High Court while hearing the appeals as well  as the

miscellaneous  petition  for  the  suo  motu enhancement  of

sentence, has categorically observed that accused No.1 might

have entered into the house of the deceased with the consent

of A2.  Further, she gave all false replies to the complainant

and his wife.   The High Court observed that when accused

No.1 was not present in the house for 6 to 7 hours, at least

she  should  have  informed  anyone  about  the  incident.   All

these  clearly  involve  her  actively  in  the  crime  along  with

accused  No.1.   The  evidence  also  establishes  that  accused

No.2  permitted  accused  No.1  to  enter  into  the  house  and

allowed  him  to  keep  other  articles.   All  the  above  acts

demonstrate her active involvement in the crime in question

indicating  that  conspiracy  has  been  established  by

prosecution, but as no appeal is filed by the State, the High

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Court has not dealt with the issue.   The High Court finally

held that by way of cogent, reliable and consistent evidence,

the  prosecution proved  that  accused  No.2,  though knowing

fully well that her husband was brutally murdered by accused

No.1, did not inform anyone nor filed complaint.   The High

Court  held  that  the  trial  court  was  therefore  justified  in

convicting accused No.2 for commission of offence punishable

under Section 201 I.P.C, but the trial court has imposed lesser

sentence which is improper, miscarriage of justice and in the

result, enhanced the punishment to seven years.

17. At this  juncture,  I  deem it  appropriate  to extract Section

201 of I.P.C for better appreciation.  

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

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1[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 pro- vided for the offence, or with fine, or with both.  

Illustration A, knowing that B has murdered Z,  assists  B  to  hide  the  body  with  the intention of screening B from punishment. A is  liable  to  imprisonment  of  either description for seven years, and also to fine.

18. As laid down by this Court in Sou. Vijaya alias Baby Vs.

State of Maharashtra, (2003) 8 SCC 296, in order to convict

a person under Section 201 of I.P.C, following ingredients are

necessary- a. That an offence has been committed;

b. That the accused knew or had reason to believe the commission of such offence;

c. That  with  such  knowledge  or  belief he/she-

1. caused any evidence of the commission of that offence to disappear; or

2. gave  any  information  respecting  that offence which he/she knew or believed to

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be false;

d. That  he  did  so  as  aforesaid  with  the intention of screening the offender from legal punishment.

……..Therefore,  to  make  an  accessory  ex post  facto, the  first  requisite  is  that  the accused  should  know  about  the  crime committed.  In  the  next  place,  he  must receive, relieve, comfort, or assist him and generally  any assistance whatever given to an  offender  to  hinder  his  being apprehended, tried or suffering punishment, makes  the  assister  an  accessory. What Section 201 of IPC 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.”

19. Criminal trial can never be a fanciful flight of imagination.

While considering the charge under Section 201 of I.P.C, it is

mandatory  for  the  prosecution  to  prove  that  the  accused

actively participated in the matter of disappearance of evidence

and with an intention to screen the offender.  To convict the

accused for the offence punishable under Section 201 of I.P.C,

it is necessary that all  the ingredients are satisfied pointing

out at the guilt of the accused and a mere suspicion is not

sufficient.   Accused can never be convicted on the basis  of

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probabilities  or  on  assumptions  and  presumptions.   In  the

light of the above, it has to be examined whether the appellant

has committed the offence punishable under Section 201 of

I.P.C.

20. The appellant is before this Court questioning the conviction

imposed by the trial court which was confirmed by the High

Court on one hand and on the other hand, she is aggrieved by

the order passed by the High Court in enhancing the sentence

from 2 years to 7 years.    Having gone through the judgment

passed by the trial court and specifically the reasoning given

by  the  Court  for  convicting  the  appellant/accused  No.2,

admittedly,  accused  No.2/appellant  was  charged  for  the

offences punishable  under  Sections 302, 120(B) and 201 of

I.P.C.  read  with  Section  511  of  I.P.C   The  trial  court  has

acquitted  accused  No.2/appellant  on  all  other  charges  but

convicted for the offence under Section 201 of I.P.C Here, for

better appreciation of the issues involved in the case, I would

like to extract the relevant portion of the findings of the trial

court, which read as under:  

“I  am  unable  to  hold  accused  No.2 guilty for the offence of murder for the act done  by  accused  No.1  of  committing  the murder of the deceased.  It is true that her silence  may  be  due  to  fear  and  one  can

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understand that said fear in the mind of the lady  who  has  seen  her  husband  being attacked  with  knives  as  seen  in  helpless condition  and  she  had  a  mind  to  save herself  and  her  children  from  further attack…… So, I  am aware of  the fact that this silence on the part of accused No.2 may suggest that accused No.2 is also one of the conspirators…….

……she has declared her  desire  to  have  a divorce.  So, she has no mind to murder her husband at any point of time.  So, these two circumstances  lead  me  to  not  to  hold accused No.2 as one of the conspirators of the conspiracy to commit the murder of the deceased.   

….subsequent  conduct  of  accused  are sufficient to prove her guilt.  Accused No.2 can  be  held  for  abetting  the  offence  of disappearing  the  evidence  of  offence committed by them.   

….From the above discussed evidence, I am of  the  view  that  prosecution  has  proved beyond all reasonable doubts that accused No.1  had  committed  the  murder  of  the deceased by inflicting the multiple injuries to the deceased with the help of absconding accused.   I am of the opinion that accused No.2  is  not  held  guilty  for  the  offence  of murder  of  the  deceased.   Regarding  the disappearance  of  the  evidence  of  offence, though  there  is  no  evidence  of  the participation  of  accused  No.2  in disappearing  the  said  proof  of  offence  of murder, but by remaining silence, she has indirectly  abetted  the  offence  of disappearance  of  evidence  of  murder.   I reply point is held guilty for the offence of murder and accused No.2 is held not guilty for the said offence of murder.          I reply

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point No.4 that both the accused are held guilty for the offence of sec. 201 IPC.”

21. Looking at the entire findings of the trial court, it is crystal

clear that the court has given a clean chit  to the appellant

saying that she is in no way involved in commission of the

crime.  At para 73 of the judgment, at one breath a categorical

finding was given by the trial court that there is no evidence of

participation of accused No.2 in disappearing the said proof of

offence of murder, but by remaining silent, she has indirectly

abetted  the  offence.  At  another  breath  the  trial  court  has

observed that either out of fear or for the best reason known to

her,  she  remained  silent  and  abetted  or  aided  the  offence

punishable under section 201 of IPC.  

22. Admittedly, the whole case of the prosecution is based upon

circumstantial  evidence  except  for  the  evidence  of  sole  eye

witness Ami.  The eye witness, in her statement, has clearly

stated  that  the  appellant  was  crying  and she  was  pleading

accused No.1 not to kill her husband.  She further stated in

the  cross-examination  that  accused  No.1  told  her

mother/appellant to keep mum and not to make any trouble

as accused No1 and the absconding accused will come back.

Accused No.2/appellant reiterated the same in her statement

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under Section 313 of CrPC.    

23. The relevant portion of the evidence of Ami, eye witness, is

extracted below:

“I jumped from the cot towards my mummy. I  went  there  immediately  after  getting  up. My  mummy  immediately  took  me  to  the drawing room.  It is not true that my mother was standing there silently with Pooja, she was saying “don’t beat…..don’t beat…”

“Next day morning, when I got up at 7:30 o’ clock morning, Kishorbhai, one more person came out from the bedroom, and Kishorbhai tried to adore me but I rejected his gesture. At that time, the person with him did not tell anything.  Kishorbhai told my mummy to keep mum and not to make any trouble as they were coming back.”

24. The  relevant  portion  of  the  statement  of  accused

No.2/appellant under Section 313 CrPC is as under:

“It  is  true.   While  going  Kishore  had threatened  me  that  the  corpse  is  lying  in your  house,  we  are  going  the  entire responsibility will  fall  on you, therefore till the  time  we  come  back  till  then  remain quiet, do not do anything.”

25. I am unable to accept the finding of the courts below, that

by  remaining  silent,  accused  No.2/appellant  has  indirectly

abetted  the  offence  of  causing  disappearance  of  proof  of

murder.  Remaining silent and absconding with accused No.1

and moving from one place to another place will not supply the

20

evidence  or  fill  the  gap  which  is  necessary  to  prove  the

ingredients under Section 201 of I.P.C.   The trial court, having

specifically observed that accused No.2 has nothing to do with

the  disappearance  of  evidence  and  without  recording  any

finding with regard to motive, has convicted her under Section

201 of  I.P.C.  In  fact  the  reasoning  given by  the  trial  court

makes it  clear that court could not give any reasoning with

regard  to  motive  which  is  the  crucial  aspect  to  fasten  the

liability  on  the  accused.  With  regard  to  the  factum  of

remaining silent the reason is forthcoming from the evidence

of eye witness and the 313 statement of appellant which was

not  taken  into  consideration.  In  the  present  case  the

prosecution has miserably failed to prove the same.

26. The Five Judge Bench of this Court in  Raghav Prapanna

Tripathi v. State of U.P.,  AIR 1963 SC 74, has dealt with

Section 201 of  I.P.C.  and the ingredients to be satisfied for

convicting  an  accused  under  Section  201  of  I.P.C.   The

relevant portion of the same is as under:

“Thus  these  two  appellants  have  been rightly  convicted  and  their  appeals  are dismissed. In regard to the case of Ramanuj Das  and  Jai  Devi  the  finding  of  the  High Court is that the dead bodies of Kamla and her son Madbusudan were not found in the house of Ramanuj Das and they must have

21

therefore  been  removed  ;  that  an  attempt was made to wash out the bloodstains from inside  the  rooms and  also  outside  on  the roof ; that the dead bodies could not have been  removed  without  the  knowledge  and active cooperation of Ramanuj Das and Jai Devi  and  further  that  both  Ramanuj  Das and Jai Devi absconded. On this basis the conviction of these appellants was held by the High Court to be justified. It is true that the murder was committed in the house of Ramanuj Das and that there is the evidence to show that the blood inside and outside the  living  rooms  was  washed  and  an attempt was made to obliterate any sign of it though it was unsuccessful. It also may be that  both Ramanuj  Das and Jai  Devi  had knowledge of the removal of the dead-bodies but  what s.  201 requires  is  causing  any evidence of the commission of the offence to disappear  or  for  giving  any  information respecting  the  offence  which  a  person knows or believes to be false. In this case there  is  no  evidence  of  either.  It  is  not shown that these two appellants caused any evidence to disappear. There may be a very strong suspicion that if from the house dead bodies  are  removed  or  blood  was  washed, person  placed  in  the  position  of  the appellants must have had a hand in it but still that remains a suspicion even a strong suspicion at that. It is true that they were absconding but merely absconding will not fill the gap or supply the evidence which is necessary to prove the ingredients of section 201 of the Indian Penal Code. In our opinion the case against Ramanuj Das and Jai Devi has not been made out. There appeals must therefore  be  allowed  and  they  be  set  at liberty.”  

27. In  view  of  the  above  discussion,  I  am  of  the  considered

22

opinion  that  the  trial  court  went  wrong  in  convicting  the

appellant without there being any finding with regard to the

mens rea of  the accused as settled by this Court in several

cases.  Particularly, when a specific finding is recorded by the

trial court that there is no evidence for convicting the accused

under Section 201 of I.P.C., it ought not to have convicted her

for the same more on assumptions and presumptions.  When

the appellant and accused no 1 assailed the order of trial court

before the High Court, the High Court has issued notice under

Section  377  of  the  Criminal  Procedure  Code  for  suo  motu

enhancement of sentence to the appellant. The High Court has

enhanced the sentence to 7 years by dismissing the appeal

preferred by the accused.  The reasoning given by the High

Court is extracted below:

“Evidence shows that accused travelled by public transport i.e. AMTC bus.  Therefore, in absence of  accused No.1 for  nearly 6-7 hours in the house, at least she could have informed  somebody.   Moreover,  when  she was  moving  in  various  places,  she  had ample opportunities.  However, she did not utilize any of these opportunities.  All these clearly involve her actively in the crime in question along with accused No.1.”

….Thereafter  also,  she  remained  silent, went away with the accused No.1, stayed at different  public  places  on fictitious  names as husband and wife and absconded for a

23

period of one and half  months.  From the aforesaid,  her  active  involvement  in  the crime in question indicating conspiracy has been established by the prosecution.  Court below  dealt  with  the  same  however disbelieved the theory of conspiracy.  Even though we  are  not  satisfied  with  the  said reasonings given by the Court below, we are not dealing with the same as no appeal has been filed in that respect by the State.”  

….It may be noted that accused No.2 was acquitted by the court below for the charge under  Sec.  302  IPC  and  conviction  only under Sec. 201 IPC.  As stated earlier, since State did not prefer any appeal against the acquittal for the charge under Sec. 302 IPC, we are not in a position to deal with the said aspect.

….Though she was knowing fully well that her husband was brutally murdered by the original  accused  No.1,  she  did  not  inform anyone  nor  filed  the  complaint.   The  trial court  was  therefore  justified  in  convicting the accused No.2 for commission of offence punishable  under  Sec.  201  IPC  and  her conviction is hereby upheld.

….It is required to be noted that trial court has  improperly  evaluated  the  evidence  on record  overlooking  not  only  the  object  of Sec. 201 but also shocking facts of the case leading to murder of  deceased by accused No.1 and commission of offence under Sec. 201  by  accused  No.2  and  has  imposed sentence  which  is  improper  and  is  a miscarriage  of  justice.   trial  court  ought have borne in mind that Sec. 201 is joined with  Sec.  302  of  IPC  and  should  have awarded sentence accordingly.”

 28. There  is  no  dispute  with  regard  to  the  fact  that  let

24

punishment  fit  the  crime  is  one  of  the  main  objects  of

sentencing  policy.   The  sentence  should  be  adequately

reasonable, proportionate to the nature of culpability is a key

factor.   Sentencing is a matter of discretion of the trial court

and the appellate Court in the normal circumstances will not

interfere with such discretion.  But will interfere only when it

finds that there is miscarriage of justice, flagrant abuse of law

and  where  the  discretion  is  not  properly  exercised  by  the

sentencing Court.  The High Court first and foremost has to

deal with the conviction appeal on its own merits and once it

comes  to  the  conclusion  that  the  trial  court  was  right  in

imposing  conviction,  then  it  has  to  delve  into  the  aspect

whether the punishment was proportionate or not.  From the

finding of the High Court that the appellant is involved actively

in  committing  the  murder  and  the  findings  with  regard  to

conspiracy and particularly, in observing that as the State has

not  preferred  any  appeal  against  acquittal  it  is  not  in  a

position to deal with the same, it appears to us that the High

Court  in  a  prejudiced  manner  has  enhanced  the  sentence.

looking at the entire reasoning of the High Court, I find that

the findings of the trial court were not disturbed and infact

were upheld by the High Court but it only differed with the

25

sentencing aspect.   The reasoning given by the appellate court

for enhancing the sentence and dismissing the appeals can be

a valid and correct reasoning for convicting the accused under

section 302 or 120b of I.P.C when the state has preferred an

appeal  against  acquittal.  But basing on such reasoning the

appellant cannot be convicted under section 201 of I.P.C. The

ingredients to attract the offence under section 201 of I.P.C are

altogether  different.  Her  mere  silence  cannot  give  rise  to  a

presumption  that  she  has  committed  the  offence.   In  the

instant case both the trial court and the appellate Court, failed

to appreciate the case in its proper perspective, relied more on

assumptions and based on presumptions has convicted the

appellant, which is contrary to the settled law.   

29. In view of the foregoing discussion, I  hold both issues in

favor of accused No.2/appellant and against respondent State. 30. Generally,  in  an  appeal  against  conviction,  where

concurrent findings were recorded by both the Courts below,

this Court will not interfere.  But, this is a case where both the

Courts below, without satisfying the ingredients of Section 201

of  I.P.C.,  have  convicted  accused  No.2/appellant  more  on

surmises and conjectures,  which invited interference of  this

court.

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31. Pondering  over  the  ongoing  discussion,  I  hold  that

prosecution  has  not  been  able  to  prove  the  guilt  of  the

appellant/accused  No.2  for  the  offence  punishable  under

Section 201 of I.P.C beyond reasonable doubt.   It is brought

to the notice of this Court that the appellant/accused No.2 has

already undergone the sentence imposed by the trial court.  I

set  aside  the  order  passed  by  the  High  Court  in  Criminal

Appeal  No.  833 of  1997 and Crl.M.A.  No.  1121 of  1998 in

Crl.A.  No.  833  of  1997  and  accordingly  the  appeal  stands

allowed.    

.................................J (N. V. RAMANA)

NEW DELHI DATED:  July 17, 2017

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                                                  REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 40 OF 2007

Padmini Mahendrabhai Gadda                    Appellant

                        Versus State of Gujarat                               Respondent

J U D G M E N T

Prafulla C. Pant, J.

I have benefit of reading draft judgment dictated by My Lord Hon’ble Mr. Justice N.V. Ramana whereby His Lordship has held that the charge of offence punishable under Section 201 of Indian  Penal  Code  (IPC)  against  the  appellant  stood  not proved, and conviction recorded against her is liable to be set aside.  With great respect, I humbly differ with the said view for the reasons recorded hereunder: - 2. Briefly stated the prosecution story is that the appellant got married to Mahendrabhai (deceased) in the year 1981 and two daughters born from the wedlock.  The family used to live in Shakuntal Apartments, Ahmedabad.  The deceased was running

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a  Health  Club  one  in  Chitranjan  Society,  Naranpura  and another  in  Shakuntal  Apartments.   PW-3  Pradip  Kamdar (complainant) is the brother of the appellant.  Earlier the appellant  along  with  her  family  used  to  live  with  the complainant,  before  they  shifted  to  Shakuntal  Apartments. Kishore Thakker (A-1) was employee in the Health Club run by the  deceased.   He  developed  illicit  relationship  with  the appellant.   When  appellant  told  the  complainant  that  she wanted  to  sever  her  relations  with  the  deceased,  the complainant and his wife advised her not to take such step as she had two children from the wedlock.  On this she responded by saying that Kishorebhai (A-1) also looks after them well. Thereafter, when Mahendrabhai was advised by the complainant not to allow A-1 in his house, he removed A-1 from service. On  11.12.1994,  the  appellant  along  with  her  husband (deceased) and children came to the house of the complainant for lunch and returned at about 2.30 p.m. The daughters were aged eight years and four years. The two families used to keep  in  touch  regularly  on  phone.   In  the  morning  of 12.12.1994, wife of the complainant tried to enquire about the health of younger daughter of the appellant.  But the phone was continuously engaged.  At about 11.30 a.m. when she rang the appellant and enquired about her husband (deceased), she (appellant) told her that he had gone to Naranpura Health Club.  Thereafter, the complainant (PW-3) gave a ring at 3.00 p.m.  The appellant informed that Mahendrabhai (deceased) had gone  to  Bombay.   This  made  the  complainant  suspicious  as

29

Mahendrabhai,  whenever  went  out  from  Ahmedabad,  used  to inform him.  At about 4.00 p.m., the complainant along with his wife came to the house of his sister (appellant) and rang the door bell.  When they entered in the house, they saw that younger daughter Pooja was lying near the dining table in fever.  When the complainant asked the appellant as to the reason for Mahendrabhai to go to Bombay, the appellant gave explanation that Mahendrabhai had asked her not to disclose his visit to Bombay.  Since it was 4.00 p.m. and Ami (PW-34), elder daughter of the appellant was to be brought back from the school, PW-3 asked the appellant to go and bring the child.  Meanwhile, PW-3 found that bath room of the appellant was locked from inside.  Suddenly the door of the bath room was opened from inside and Kishore (A-1), who had illicit relations  with  the  appellant,  came  out,  and  tried  to  run away.  His shirt was not buttoned. When he was attempted to be stopped, his shirt dropped and he ran away with pants only.   Thereafter,  the  complainant  entered  inside  the bathroom and saw the dead body of Mahendrabhai was in the pool of blood.  The appellant, who was sent to bring Ami (PW-34) did not return.  As such, the complainant leaving his wife in the house of the appellant, went to the school and brought Ami.   3.  Thereafter,  the  complainant  went  to  Ellisbridge  Police Station,  then  to  Navrangpura  Police  Station,  and  gave  the First Information Report (Exh. 22), which was registered as ICR No. 759 of 1994.  The police came to the house of the

30

appellant, took the dead body into their possession, prepared the inquest report and the dead body was sent for post mortem examination.   PW-1 Dr. Dilip Manubhai Desai conducted post mortem  examination  and  prepared  the  autopsy  report (Exh.-17/18).  On completion of investigation, charge sheet was filed against Kishorebhai (A-1) and the appellant (A-2) for  their  trial  in  respect  of  offences  punishable  under Sections  302,  120B  and  201  IPC.   The  trial  court,  on conclusion of trial, convicted A-1 under Sections 302 and 201 IPC. However, the appellant (A-2) was acquitted of the charge under Section 302 IPC, but convicted under Section 201 IPC. A-1 was awarded imprisonment for life and fine of Rs.5000/- under  Section  302  IPC,  and  each  one  of  A-1  and  A-2  was sentenced to rigorous imprisonment for two years and to pay fine of Rs.5000/-, in default of which to undergo further three months rigorous imprisonment under Section 201 IPC. 4. The two convicts filed separate appeals (Criminal Appeal No. 831 of 1997 by A-1 and Criminal Appeal No. 833 of 1997 by A-2) before the High Court.  The High Court issued notice for enhancement of sentence as against A-2 only in respect of offence punishable under Section 201 IPC.  It is relevant to mention here that the State did not file any appeal against acquittal  of  A-2  in  respect  of  offence  punishable  under Section 302 IPC.  After hearing the parties, the appeals of A-1 as well as of A-2 were dismissed by the High Court, and the sentence of A-2 was enhanced to rigorous imprisonment for seven years and to pay fine of Rs.7,000/-, in default she was

31

directed  to  undergo  rigorous  imprisonment  for  two  years. Aggrieved by said order dated 04.10.2006 passed by the High Court, A-2 is before us in this appeal. 5. Contentions of learned counsel for the parties are already mentioned in the judgment by my Lord Hon’ble Mr. Justice N.V. Ramana and need not be repeated. 6. Perusal of the record shows that in all 48 witnesses were examined by the prosecution.   7. PW-1 Dr. Dilip Manubhai Desai, who conducted post mortem examination on the dead body of the deceased on 13.12.1994, has proved homicidal death of the deceased (Mahendrabhai). He has deposed that there were fifty ante mortem external injuries on the dead body out of which external injury Nos. 13, 14, 16, 18, 20, 21, 28 and 30 were sufficient to cause death in the ordinary course of nature.  He further told that the injuries were possibly caused by knife.  The cause of death reported by him was shock and hemorrhage as a result of stab injuries sustained by the deceased.  He has proved his reports Exh. 17/18. 8. PW-3 Pradip Kamdar (complainant), who is brother of the appellant,  has  narrated  the  entire  prosecution  story,  as mentioned  above.   For  brevity,  the  same  is  not  being repeated. 9. PW-34 Ami is the elder (minor) daughter of the appellant. She has stated that her father used to run Health Clubs in Naranpura and Shakuntal Apartments.  Kishore (A-1) used to work in the Health Club, who was removed from service before

32

Diwali.  She further told that in the fateful night (11th and 12th December, 1994) she woke up when the bed was pushed. She saw two persons – Kishore and one lean person beating her father.   (The  said  lean  person  is  still  reported  to  be absconding)  She  further  told  that  her  mother  was  standing near the door with Pooja (younger daughter of the appellant). She  further  stated  that  when  she  started  crying,  she  was taken by her mother to drawing room.  She further told that thereafter she did not know as to what had happened, and when in the morning she got up, she saw Kishore (A-1) and his associate leaving the room.  She further stated that next morning her mother told her to take bath in the bathroom attached to another room.  She stated that she was studying in Vandana School.  She has also corroborated the fact in the cross-examination that her maternal uncle (complainant) came to receive her in the school.   10. The statement of PW-3 Pradip Kamdar gets corroborated not only  from  the  statement  of  PW-34  Ami,  but  also  from  the statement of PW-23 Minaben Deepakbhai Desai.  This witness has stated that on 12.12.1994 when she was bringing her son from Vandana School to her home, she met the appellant near Vandana School.  She also saw that Kishore (A-1) came in an autorikshaw.  There was no clothe on his upper part of the body and he was only in pants.  He asked her (PW-23) to call Padmini  (appellant).   She  called  her  and  Padmini  went  in autorikshaw with Kishore (A-1).

33

11.  PW-7  Yogesh  Pannalal  has  deposed  that  on  12.12.1994 between 4.00 and 5.00 p.m. a man barefooted and without any clothe on the upper part of the body came in his shop with a lady.  They asked for a T-shirt and purchased a jersey.  The lady paid for it.  This witness has identified A-1 as the man who came barefoot and without clothe on the upper part of the body and A-2 as the lady who paid the money.   12. PW-6 Navabahamad Rafiyuddin Shaikh further corroborates the story by deposing that he was running a shoe shop and on 12.12.1994 at about 6.00 p.m. a person barefoot came to his shop along with a lady and purchased chappal for Rs.45/- and the lady paid the money. 13.  Subsequent  to  the  incident  as  to  how  A-1  and  A-2 absconded and lived together that too has come on record in the testimony of PW-19, PW-28, PW-32, PW-39 and PW-40.  PW-19 Kanubhai Somabhai Valand has stated that he is Manager of Nayisamaj Dharamshala and he told that A-1 and A-2 lived in the Dharamshala (with fictitious names).  PW-28 Ibrahimbhai Nasirbhai who is owner of Dreamland Hotel, PW-32 Suryakant Chamanlal,  PW-39  Ramaji  Rupsing,  Manager  of  Dadavadi Gurumandir  Dharamshala,  PW-40  Jagdishkumar  Amrutlal  Soni, Manager  of  Shree  Parshwanath  Bhaktivihar  Jain  Trust Dharamshala, have also given the similar statements regarding above fact for different dates as to how A-1 and A-2 lived in Dharamshalas  and  Hotel  with  fictitious  names.   They identified both the accused in the court.  The two accused

34

lived  together  in  the  above  manner  from  12.12.1994  till 23.01.1995, before they were arrested. 14. It has also come on record in the evidence of police witnesses that after commission of murder the bed room was found cleaned and body of the deceased was found concealed in the bathroom in an attempt to cut and dispose of the same in pieces  for  which  needle,  jute  thread,  plastic  bags,  iron blade, etc. were collected from the house.  It has also come on record that around noon A-1 was allowed by A-2 to go out to  get  his  hand  bandaged.   In  this  connection  PW-4  Dr. Rajendra Hiralal Shah has adduced the evidence relating to bandaging and proved the relevant entries.   15. In the light of the circumstances, from the evidence on record,  in  my  opinion  it  is  clearly  established  that  by making false statement by appellant to her own brother PW-3 (complainant)  as  to  whereabouts  of  the  deceased,  and  not allowing  PW-34  Ami  to  use  the  bathroom  attached  to  the bedroom (where dead body was concealed), the appellant has given false information to screen offender (A-1).  As such, she was rightly held guilty by the courts below in respect of charge of offence punishable under Section 201 IPC.  Some observations of the trial court against its own finding as to guilt of A-2 are not relevant for the decision of this court, particularly when judgment of the trial court stands merged in the judgment of the High Court which is impugned before us and,  as  such,  the  appellant  cannot  be  acquitted  from  the charge of offence punishable under Section 201 IPC.  I agree

35

with  the  principle  of  law  laid  down  by  this  Court,  as referred to by my Lord Hon’ble Mr. Justice N.V. Ramana, but finally  in  each  case  the  facts  and  evidence  of  that particular case are to be seen to come to the conclusion as to whether the ingredients of a particular offence have been made out or not. 16. For the reasons, as discussed above, I find no error of law in the orders passed by the courts below in concluding that the appellant Padmini is guilty of the charge of offence punishable  under  Section  201  IPC.   However,  as  to  the sentence, the High Court has awarded the maximum sentence to A-2 (appellant).  Learned counsel for the appellant pointed out from the record that the appellant has already served more  than  two  years’  imprisonment  during  the  period  of trial/appeal.  She is sixty years old, and twenty three years have  passed  from  the  date  of  incident.   In  these circumstances, I am of the view that since the sentence under Section 201 IPC awarded to A-1 has attained the finality in respect  of  the  same  charge,  as  such,  it  would  not  be justified to award A-2 the enhanced sentence as directed by the High Court, particularly considering her role in respect of said charge, compared to that of A-1. 17. Therefore, the appeal is partly allowed.  The conviction recorded by the courts below against the appellant in respect of offence punishable under Section 201 IPC is upheld but the sentence awarded by the High Court is reduced to two years

36

rigorous  imprisonment  with  fine,  as  recorded  by  the  trial court.

………………………………J.                                            [Prafulla C. Pant]

New Delhi; July 17, 2017.    

37

REPOTRABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 40 OF 2007

PADMINI MAHENDRABHAI GADDA                       APPELLANT

                          VERSUS STATE OF GUJARAT                               … RESPONDENT

ORDER

     In   view   of   the   disagreement   between   us, the Registry   is   directed   to   place   this matter before   the   Hon’ble   Chief Justice   of   India   to constitute   an   appropriate   bench   for disposal of the matter.

………………………..J. (N. V. Ramana)

………………………….J. (Prafulla C. Pant)

New Delhi Dated:  July 17, 2017