Criminal Appeal (SJ) No.309 of 1998 Against the judgment and order of conviction and sentence dated 22. 08. 1998, passed by Shri Shyam Kishore Sharma, Special Judge, C.B.I. (South), Patna, in Special Case No. 29 of 1980. Keshave Kishore Sinha, son of Late Yashoda Nandan Sinha, Resident of 78, S. K. Nagar, Police Station- Budha Colony, District & Town- Patna. .... .... Appellant. Versus State of Bihar(Through C.B.I.) .... .... Respondent. For the Appellant : Mr. Suraj Nr. Pd. Sinha, Sr. Advocate. Mr. C. M. P. Sinha, Advocate. Mr. Pramod Kumar, Advocate. For the C.B.I. : Mr. Bipin Kumar Sinha, S.C., C.B.I. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant learned counsel for the C.B.I. 2. The appellant has been convicted for offence under Section 201 read with Section 511 of Indian Penal Code and sentenced to undergo imprisonment for six months and fine of Rs.5,000/-. This imprisonment of fine is in addition to six months. In default of fine of fine he will further undergo imprisonment for six months for the offence under Section 201 read with Section 511 I.P.C. 3. The prosecution case is that a case was registered on the basis of written report of Shri P. P. Nayar, Chief Secretary, Govt. of Bihar that Yasoda 2 Nandan Sinha, Assistant Commissioner of Bihar State Excise having started his career in the year 1960 and has earned huge property disproportionate to known source of his income and same was investigated by the C.B.I. The report was examined by C.B.I., and disclosed that commission of offence of criminal misconduct and so a case was registered against Yasoda Nandan Sinha and during investigation residential house of the suspect was searched and while house was being searched on 14. 11. 1980, Keshave Kishore Sinha the appellant was seen scaling down through the back door of the lavatory and found in possession of Rs. 47,892 in G.C. notes, a Pass Book of of S.B. Account No. C-1073, keys of locker No. 41, S.B.I., Kankarbagh, and locker no. 252 S.B.I Sri Krishnapuri and other articles. 4. The police after investigation submission of the charge sheet for offence under Section 5(1)(e) and 5(2) against Yasoda Nandan Sinha and charge framed for offence under Section 5 (2) read with 5(1) (e) of the Prevention of Corruption Act against Yasoda Nandan Sinha regarding acquiring assets disproportionate to known source of his income and possession of the same as 3 well for offence under Section 467 of the Penal Code. Premlata Sinha has also been charges for offence under Section 465 I.P.C. for having an account in the name of Hemlata Sinha as well for offence under Section 201 I.P.C. that she was instrumental for concealing of the assets disproportionate to known source of income and, though, this appellant has been charged under Section 201 read with Section 511 I.P.C. for attempting to conceal Rs. 47,000/- and odd, ornaments, key of locker and pass book under occupation of Yasoda Nandan Sinha during search by C.B.I. with intention to screening the offender. 5. After framing of the charge witnesses examined. However during trial Yasoda Nandan Sinha died hence case against him was abated. The trial court did not go into the question with regard to the charged framed under Section 467 I.P.C. and Section 5(1) 5(2) of the Prevention of Corruption Act for the charge framed against Yasoda Nandan Sinha. The trial court take into consideration the evidence with regard to the charge against Premlata Sinha regarding opening of Bank account in the name of Hemlata Sinha as well as charge under Section 201 read with Section 511 I.P.C. against Premlata 4 Sinha, acquitted her of the charges holding that offence under Section 465 I.P.C. is not made out and further holding no connecting evidence has been proved that she is concealing the offender acquitted her of the charges. The trial court however, convict the appellant for offence under Section 201 I.P.C. in view of evidence that appellant caught with material Ext. 1, 2 and 3. The trial court convicted the appellant in view of the evidence of P.W. 1 who has stated that the appellant was caught carrying bags and other articles which material Ext. 1, 2 and 3 and P.W. 21 and 82 have supported that he was seen removing the assets containing Rs.47,892/- G.C. notes, ornaments and locker key from the house no. 78, Sri Krishnanagar. 6. Learned counsel for the appellant however contended that appellant was caught in the house where raid was being conducted where other brothers of the appellant was there, though, appellant was apprehended in the house itself in which raid was conducted and it is alleged that he was fleeing away, but no separate material exhibit has been prepared and P.W. 1 in his evidence has stated that articles seized from him and seizure list was prepared regarding discovery of the articles from the house 5 and hence that common seizure list of the whole articles received from the house itself indicates that there was no separate recovery as there is no signature of the appellant on the seizure list. It has further been contended that substantive offence that property found in possession of the appellant was disproportionate to the known source of income of Yasoda Nandan Sinha has not been established. Hence if the substantive evidence has not been proved or established, conviction under Section 201/511 I.P.C. for attempt to efface the evidence is not maintainable and has placed reliance upon decision reported in A.I.R. 1952 Supreme Court page 354. 7. Learned counsel for C.B.I. however contended that, though, evidence has been adduced before recording the finding after hearing the accused. During the pendency of the trial itself, Yasoda Nandnan Sinha was died and case against him abated, but there are evidence against the said charge and it is the accused who has to explain about assets and if accused is unable to make out an explanation it may be presumed that assets were disproportionate. Further learned counsel for the C.B.I. has relied upon decision reported in 2006 SCC page 1959 6 and has submitted that in this case conviction has been recorded under Section 201 I.P.C. with due consideration of decision relied upon by defence reported in A.I.R. 1952. 8. However, to establish for offence under Section 201 of the Penal Code following ingredients are required to be proved; (1) that an offence has been committed; (2) that the accused knew or had reason to believe the commission of such offence. (3) that with such knowledge or belief he--- (a) caused any evidence of the commission of that offence to disappear, or (b) gave any information respecting that offence which he then knew or believed to be false; (4) that he did as aforesaid, with the intention of screening the offender from legal punishment. 9. However, here under the facts and circumstance no finding has been recorded by lower court regarding substantive offence that property in possession of accused was disproportionate to known source of income in view of the fact that main accused Yasoda Nandan Sinha died during pendency of the trial and the case abated against him. However, it was Yasoda Nandan 7 Sinha who had to explain about the assets. However, Yasoda Nandan Sinha died and the appellant cannot be fastened with the liability to explain for the charge under Section 5(1) e and 5(2) of Prevention of Corruption Act or Section 467 I.P.C. Hence no finding can be recorded for the substantive offence. Unless the substantive offence is established the appellant cannot be fastened with Section 201 I.P.C. as the ingredient for offence under Section 201 I.P.C. that the substantive offence has been established. 10. The trial court did not go into the question without giving any finding to the effect that substantive evidence has been established nor gave finding that appellant has about substantive evidence that appellant knew or had reason to believe the commission of such offence, nor there is any finding that he have any information respecting that offence which he then knew or believed to be false. Hence conviction under Section 201 of Penal Code read with Section 511 Penal Code is not substantial. 11. Learned counsel for the appellant has place reliance in decision reported in A.I.R. 1952 SC page 354 (Palvinder Kaur Vrs. State of Punjab) in the said decision 8 one Palvinder Kaur was tried for offence under Section 302 and 201 Penal Code and was converted under Section 302 I.P.C. but no verdict was recorded regarding the charge under Section 201 Penal Code. On appeal to the High Court acquitted her of the charge of murder, but convicted under Section 201 of Penal Code. In the appeal before Supreme Court, it was held that in order to establish the charge under Section 201 I.P.C. it is essential to prove that substantive offence has been committed and the accused knew or had reason to believe that such offence has been committed with requisite knowledge and intention of screening the offender from such legal punishment caused any evidence of the commission of that offence to disappear or gave any information respecting such offence or having such knowledge or believed to be false and hence acquitted the appellant from the conviction under Section 201 I.P.C. 12. Here under the facts and circumstance, no finding can be recorded for substantive offence whether property seized with appellant were disproportionate to known source of the income of Yasoda Nandan Sinha and hence even if admitting that property were with the 9 appellant, if substantive evidence is not made out and hence conviction recorded under Section 201 I.P.C. is not sustainable in view of decision reported in A.I.R. 1952 S.C. page 354. 13. Learned counsel for the C.B.I. however placed decision reported in 2006 S.C.C. page 1959 in the facts and circumstance of the case, “ learned Sessions Judge by reason of his judgment dated 29.11. 1986 convicted Devi Dayal Singh, Mathura Singh and Sarjug Singh for commission of an offence under Sections 302/34, 120 B and 201 of the Penal Code and Section 27 of the Arms Act. The appellants Rajendra Singh, Surendra Singh, Jagdish Singh, Arjun Singh along with Ramyad Singh, Bikku Singh and Budhan Singh, were, however, convicted only under Section 201 of the Penal Code and were sentenced to undergo rigorous imprisonment for five years. On an appeal preferred by the appellants conviction of all the accused persons was confirmed by the High Court but reduce the sentence from five years to two years in respect of those were found to be guilty only under Section 201 of the Penal Code. Hon’ble Supreme Court dismissed the Special Leave Petition of Devi Dayal Singh, 10 Sarjug Singh and Mathura Singh by order dated 09. 11. 1998. However, taking into consideration all the appellants before Hon’ble Supreme Court aged more than 70 years and further taking into consideration the fact that they were not connected with the first part of the occurrence, interest of justice would be subserved modified the sentence for the period already undergone by them.” Hence in case reported in 2006 SCC 1959 some of the accused were convicted for offence under Section 302 I.P.C. and it was held that offence under Section 302 I.P.C. is made out and the offence under Section 302 I.P.C. having been established conviction under Section 201 I.P.C. maintained with modification in sentence. However, it is not a case in which offence under Section 302 I.P.C. has not been established and conviction recorded for offence under Section 201 I.P.C. and hence point raised is not cover by the decision reported in 2006 SCC 1959. 14. Hence taking into consideration the fact that appellant has been convicted for offence under Section 201 I.P.C. without any finding recorded for the substantive evidence to establish that what is alleged to have been 11 taken and found in possession of the appellant was a property which was disproportionate to the known source of income i.e. it has not been established that such property was disproportionate seized and hence offence under Section 201 I.P.C. cannot be held to have been made out and decision reported in A.I.R. 1952 page 354 is to the facts and circumstance of the case. 15. However, having to the fact Yasoda Nandan Sinha have died in which case was instituted against him has been abated and finding for disproportionate assets cannot be recorded in his absence. When substantive offence fail as such situation appellant cannot be liable for offence under Section 201 I.P.C. Hence conviction against appellant under Section 201 I.P.C. cannot be maintained. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The 23rd November, 2011. NAFR/m.p. ( Gopal Prasad, J.)