IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.  265-266  OF 2018 (Arising out of S.L.P.(Criminal) Nos. 1815-1816 of 2016)

DINESH KUMAR KALIDAS PATEL  ...  APPELLANT (S)

VERSUS

THE STATE OF GUJARAT        ... RESPONDENT (S)

J  U  D  G  M  E  N  T

KURIAN, J.:

Leave granted.  

2. The  appellant  was  convicted  by  the  Sessions  Judge,

Mehsana (State of Gujarat) for offences under Sections 498A

and 201 of the Indian Penal Code, 1860 (hereinafter referred to

as “the IPC”).  A sentence of one year rigorous imprisonment

and a penalty of Rs.1,000/-  with a default  sentence of three

months was awarded under Section 498A and six months and

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REPORTABLE

Rs.500/- with a default sentence of one month for the offence

under Section 201 of the IPC.

3. This  is  a  case  where  the  appellant’s  wife  committed

suicide by hanging. The incident took place on 26.12.1990. The

information was conveyed to the family of the deceased. The

father  and  brother  of  the  deceased,  who  is  a  doctor  by

profession,  attended  the  last  rites.  After  more  than  three

months, the father of the deceased filed a complaint before the

Judicial  Magistrate  at  Kadi  on  01.04.1991.  The  same  was

investigated,  and  the  appellant  was  charged  under  Sections

304B, 306, 498A and 201 read with Section 120B of the IPC and

Section 4 of the Dowry Prohibition Act,  1961. Along with the

appellant,  seven  other  persons  also  faced  the  trial.  By

judgment dated 12.09.1995, the Sessions Judge convicted the

appellant under Sections 498A and 201 of the IPC but acquitted

the seven others.

4. The appeals  filed in  1995 were heard in  the year  2015

and,  as  per  the  impugned  judgment,  the  appellant  was

acquitted  of  the  offence  under  Section  498A of  the  IPC  but

conviction under Section 201 of the IPC was maintained. Thus

aggrieved, the appellant is before this Court.

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5. Heard  learned  Counsel  appearing  for  the  appellant  and

learned Counsel appearing for the State.

6. Several  contentions  have  been  raised  on  merits.  That

apart,  the appellant  has  also  raised a question of  law as  to

whether the conviction under Section 201 of the IPC could have

been  maintained  while  acquitting  him  of  the  main  offence

under Section 498A of the IPC.  

7. Learned Counsel have placed reliance on the decisions of

this  Court  in  Palvinder  Kaur v.  State  of  Punjab1,  Smt.

Kalawati and Ranjit Singh v. State of Himachal Pradesh2,

and  Suleman Rehiman Mulani  and another v.  State  of

Maharashtra3.

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

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

1 AIR 1952 SC 354 2 AIR 1953 SC 131 3 AIR 1968 SC 829

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The  conviction  in  this  case  was  ultimately  set  aside  on  the

aforementioned legal position and the facts.  

9. The Constitution Bench decision in Kalawati (supra) may

not  be  of  much  assistance  in  this  case  since  the  facts  are

completely  different.  The  co-accused  was  convicted  under

Section 302 of the IPC for the main offence, and in the peculiar

facts and circumstances of that case, this Court deemed it fit to

convict Kalawati only under Section 201 of the IPC.  

10. Relying  on  Palvinder  Kaur (supra),  this  Court  in

Suleman Rehiman (supra), made the following observation:

 “6. The conviction of Appellant 2 under Section

201  IPC  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 201 IPC on the facts found cannot be challenged. But on the other  hand,  if  the conviction of  Appellant  1 under Section 304-A IPC cannot be sustained, then, the second appellant’s conviction under Section 201 IPC 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 — 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

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is an essential requisite for bringing home the offence under  Section  201  IPC  —  see  the  decision  of  this Court in Palvinder Kaur v. State of Punjab.”

It is necessary to note that the reason for acquittal under

Section 201 in 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.

11. In  Ram Saran Mahto and another v. State of Bihar4,

this  Court  discussed  Kalawati (supra)  and  Palvinder  Kaur

(supra). It has been held at paragraphs-13 to 15 that conviction

under the main offence is not necessary to convict the offender

under Section 201 of 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.

4 (1999) 9 SCC 486 5

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

“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 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.”

15. It is well to remind that the Bench gave a note  of  caution  that  the  court  should  safeguard itself against the danger of basing its conclusion on  suspicions  however  strong  they  may  be.  In Kalawati v.  State of  H.P a  Constitution Bench of this  Court  has,  no  doubt,  convicted  an  accused under  Section  201  IPC  even  though  he  was acquitted of  the offence under  Section 302.  But the said course was adopted by this  Court  after entering  the  finding  that  another  accused  had committed  the  murder  and  the  appellant destroyed the evidence of it  with full  knowledge thereof. In a later decision in Nathu 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 201 can be recorded, it must be shown to the satisfaction of the court that the accused knew or had reason to believe that  an  offence  had  been  committed and having got this knowledge, tried to screen the offender by disposing of the dead body.”

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12. In  V.L.  Tresa v. State  of  Kerala5,  this  Court  has

discussed the essential ingredients of the offence under Section

201 of 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

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 IPC 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.”

13. 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

201 of 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

5  (2001) 3  SCC 549 6 (2007) 7 SCC 502

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

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 302 IPC, conviction under Section 201 is permissible, in

a given case.”

7 (2003) 8 SCC 296 8

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 201 would 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…”

15. Thus, the law is well-settled that a charge under Section

201  of  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.

8 (2007) 7 SCC 35 9

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 201 of the IPC

could be sustained.

17. 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

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facie guilty of the crime under section 498(a) and 201 of the IPC and therefore the prosecution has proved the case partly in affirmation.”  

 18. The High Court, in appeal, however, took the view that the

appellant was not liable to be convicted under Section 498A of

the IPC. However, his conviction under Section 201 of the IPC

was liable to be maintained. To quote:

“5... We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of  the  Hon’ble  Apex  Court.  Taking  into consideration  the  fact  that  the  complaint  was lodged almost after a period of four months of the incident in  question,  the fact  remains is  that  no post  mortem was  performed  of  the  deceased. Even if the case of defence is accepted, it was a premature and unnatural death and therefore the mandatory requirements under the law, at least to inform the police of the death and to get the post mortem of the deceased done, were not fulfilled. Admittedly, nothing has come on record to show that the  post mortem was carried out and/or the police  complaint  was  immediately  filed. Considering the said aspect, we have all reasons to  believe  that  the  offence  is  made  out  under section 201 of the IPC. However, so far as offence punishable  under  Section  498A  of  the  IPC  is concerned,  we  believe  the  contention  of  Mr. Anandjiwala,  learned  senior  advocate  for  the accused No.1,  that almost after  a period of four months,  the  complaint  was  lodged  and  there  is nothing on record to substantiate the case of the prosecution  qua cruelty being perpetrated to the deceased for want of dowry and on the contrary, the  accused  No.1  had  helped  the  father  of  the deceased  and  gave  Rs.1  lakh.  Under  the circumstances,  we  are  of  the  opinion  that  the learned  trial  judge  has  rightly  convicted  the

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

19. Thus, the only ground for maintaining the conviction under

Section  201  of  the  IPC  is  that  the  appellant  did  not  give

intimation  to  the  police  of  the  unnatural  death  and  that  no

post-mortem was conducted.

20. We are afraid, the High Court is not justified in maintaining

the conviction under Section 201 only on the ground that no

communication  was  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 deceased and her brother

(who is a doctor) had attended the last rites of the deceased

and neither of them had any complaint or suspicion at that time

of the commission of any offence. The Sessions Court has also

taken note of the suicide note left by the deceased wherein she

had taken the entire blame on herself. Yet the court has taken

the  view,  from  the  consideration  we  have  extracted  from

paragraph-16  of  the  Sessions  court  judgment,  that  the

deceased  might  have  been  in  a  state  of  depression  having

remained alone for most of the time and it amounted to torture.

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The appellant has been acquitted of the offence under Section

498A by the High Court,  and rightly so. The prosecution has

also not been able to satisfy the ingredients under Section 201

of the IPC. Neither the Sessions Court nor the High Court has

any  case  that  there  is  any  intentional  omission  to  give

information by the appellant to the police. It is also to be noted

that  prosecution  has  no  case  under  Section  202  of  the  IPC

against the appellant.  

21. As held by this Court in  Hanuman and others v. State

of Rajasthan9, the mere fact that the deceased allegedly died

an unnatural  death  could  not  be  sufficient  to  bring  home a

charge under Section 201 of the IPC.  Unless the prosecution

was able  to  establish  that  the  accused person knew or  had

reason to believe that an offence has been committed and had

done something causing the offence of commission of evidence

to disappear, he cannot be convicted.  

22. There is no such allegation against the appellant. The last

rites of the deceased were performed in the presence of the

members of her family. They had no suspicion at that time of

the  commission  of  any  offence.  The  private  complaint  was

lodged after more than three months. There is no charge under 9 1994 Supp (2) SCC 39

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Section  202  of  the  IPC  of  intentionally  omitting  to  give

information of the unnatural death to the police. It is also not

the  case  of  the  complainant  that  he  had  requested  for

post-mortem of the body and that intimation should have been

given to the police before the last rites were performed.

23. In the above facts and circumstances, we are of the view

that  the  Sessions  Court  is  not  justified  in  convicting  the

appellant  under  Section  201  of  the  IPC  and  the  High  Court

maintaining  the same.  Accordingly,  the  appeals  are  allowed.

The conviction of the appellant under Section 201 of the IPC is

set aside.

..........................J.       (KURIAN JOSEPH)

...……………………J. (AMITAVA ROY)

NEW DELHI; FEBRUARY 12, 2018.   

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