Criminal Appeal (SJ) No. 3 of 1996 **** Against the judgment and order, dated 12th December, 1995, passed in S. Tr. No. 13 of 1991/48 of 1993 by Sri Rana Abhay Singh, Additional Sessions Judge, XI, Gaya **** Awdhesh Kumar Sinha, S/O late Yadunandan Prasad, village Pararia, P.S. Tekari, district Gaya .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. M/S S.R.C. Pandey & Amit Amit Anand, Advs. For the State .. Mr. Parmeshwar Mehta, A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. This criminal appeal arises out of the judgment and order, dated 12th December, 1995, passed by Sri Rana Abhay Singh, Additional Sessions Judge, XI, Gaya, in S. Tr. No. 13 of 1991/48 of 1993, by which he has convicted the appellant for offence under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years, however, acquitted the appellant of the charge under Section 302 of the Indian Penal Code. 2. The prosecution case, as alleged in the written report of the informant, Kiran Kumari Sinha, that her husband, Awdhesh Kumar Sinha, has murdered her younger sister, Smt. Kalpana Kumari, on 2 03.09.1988 in collusion with Suryadeo Singh and Ram Pravesh Singh. It has, further, been alleged that in 1979 accused, Awadhesh Kumar Sinha got married with Smt. Kalpana Kumari after kidnapped her and also used to subject her to cruelty. It is further alleged that Awadhesh Kumar Sinha also married with a girl Unman Gupta, daughter of Nalini Kumar Gupta. After marriage with Unman, Awadhesh Kumar Sinha came to village Pararia where Unman learntabout marriage of Kalpana with Awadhesh then left the place with plea that she can not live with Kalpana and Kiran. 3. On the said written report of Kiran Kumari Sinha first information report has been registered against three accused persons. However, after investigation the charge was submitted against accused Awadhesh Kumar Sinha, cognizance was taken and finally after commitment charge was framed under Sections 302 and 201 of the Indian Penal Code for the murder of Kalpana Kumari. However, during the trial witnesses named and after considering the oral and documentary evidence the appellant was acquitted for offence under Section 302 of the Indian Penal Code, but, convicted under Section 201 of the Indian Penal Code and sentenced. 4. The learned counsel for the appellant, however, contended that the charge was framed against the sole appellant for offence under Sections 302 and 201 of the Indian Penal Code. However, the appellant has been acquitted for offence under Section 302 of the Indian Penal Code and sentenced under Section 201 of the Indian Penal Code. Hence, when the charge of murder has not been established then there is no question of convicting the appellant for offence under Section 201 of the 3 Indian Penal Code as there is no finding or evidence that murder has been committed. 5. The learned counsel for the State, however, contends that though the evidence regarding murder is circumstantial and there may not be sufficient evidence to hold the appellant acquitted of offence under Section 302 of the Indian Penal Code, but, convicted under Section 201 of the Indian Penal Code. It has been found that learned lower Court in paragraph 12 of the impugned judgment the circumstances for disappearing of the evidence. 6. On respective submission the question for consideration is that whether the order of conviction and sentence under Section 201 of the Indian Penal Code is sustainable. 7. The prosecution case as alleged that the husband of Smt. Kiran Kumari Sinha, namely, Awdhesh Kumar Sinha, was married with her second sister, Smt. Kalpana Kumari Sinha, by kidnapping her and has murdered her on 03.09.1988. The information about the death of Smt. Kalpana Kumari Sinha has been communicated to informant, Smt. Kiran Kumari Sinha, by one Dr. Jadav Prasad, hence, apparently the informant is not an eye witness. 8. Fifteen witnesses examined in this case and P.W. 1, Balgovind Singh, has stated that he learnt that the second wife of the appellant has died so has tonsured his hair and there are evidence that Kalpana Kumari was the second wife. Further, there is evidence that the appellant used to subject her to cruelty and had married with P.W. 3, Unman Gupta, and P.W. 3 was not ready to live with the first wife and the second wife, i.e., Kiran Kumari Sinha and Kalpana Kumari Sinha. P.W. 5 4 has deposed about the treatment of Kalpana Kumari, the wife of this appellant that she was referred and taken to Gaya for treatment P.Ws. 6, 7, 8 and 9 stated that the appellant requested them to attend the funeral of his wife. P.W. 9 is the informant, but, is not an eye witness and P.Ws. 10, 11, 12 and 13 have been declared hostile 9. Hence, the entire evidence, adduced on behalf of the prosecution, there is no iota of evidence to suggest that said Kalpana Kumari was ever murdered by the appellant. There is no eye witness to murder and the circumstantial evidence adduced and pointed out in the evidence does not indicate that the victim Kalpana Kumari was murdered and, hence, the learned lower Court acquitted the appellant for the charge under Section 302 of the Indian Penal Code as prosecution failed to prove the charge under Section 302 of the Indian Penal Code against the appellant. However, taking into consideration the entire evidence adduced on behalf of the prosecution no iota of evidence either direct or circumstantial has been found to come for irresistible conclusion that Kalpana Kumari was murdered either by the appellant or any one else. 10. Hence, when the murder of Kalpana Devi is not established then in such situation the question for consideration whether the offence under definition of Section 201 of the Indian Penal Code is made out. However, it is clear that from Section 201 of the Indian Penal Code, itself, that before holding a person guilty for offence under Section 201 of the Indian Penal Code the following ingredient must have to be emerged. The first is the committal of offence, the second is person charged with the offence under Section 201 of the Indian Penal Code must have the knowledge or reason to believe that the main offence has been committed and, further, the person 5 charged with the offence should have caused disappearance of the evidence and “the act should have been done with the intention of screening the offender from legal punishment”. However, here, under the facts and circumstances even the committal of the offence of murder has not been established, hence, there is no question of knowledge or reason to be believed of main offence that has been committed nor there is any question for consideration about the disappearance of the evidence, hence, when offence under Section 302 of the Indian Penal Code has not been established the conviction and sentence under Section 201 of the Indian Penal Code is neither sustainable nor established. 11. Hence, having regard to the facts and circumstances, since, the murder of Kalpana Devi having not been established either by the appellant or by any other person, hence, the offence under Section 201 of the Indian Penal Code against the appellant is not established and, hence, I find and hold that the learned lower Court misdirected itself in holding that the appellant is guilty for offence under Section 201 of the Indian Penal Code. Hence, the order of conviction and sentence under Section 201 of the Indian Penal Code against the appellant is hereby set aside and the appeal is allowed. The appellant is on bail, hence, is discharged from the liability of his bail bond. ( Gopal Prasad, J. ) The Patna High Court, The 20th day of June, 2011, A.F.R., S.A.