STA TE OF KARNATAKA A

MADESHA AND ORS;

AUGUST l, 2007

[DR. ARIJIT PASA Y AT AND P.P. NAOLEKAR, JJ.] B

Penal Code, 1860; Sections 106 and 201:

Tampering with evidence/screening the offender-Applicability of Section 201 /PC-Held: Accused persons were not the members of the lawful C assembly-As per evidence of PW 26, accused persons allegedly threw the body of the deceased to fire-Evidence of PW 26 not believed by both the Courts below as not cogent and credible-In absence of evidence attributing knowledge of commission of offence to accused, Section 201 /PC not attracted ..

The questions which arose for determination in this appeal were as to whether Section 201 lPC 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 and as to whether Section 201 lPC would be applicable when no offence was established to have been committed.

Appellant-State has contended that evidence of PW 26 establishes that the accused persons A-3 and A-4 had thrown the body of the deceased to fire; and that there was no question of exercising the right of private defence vis- . a-vis the deceased and, therefOre, the order passed by the High Court cannot

be maintained.

Dismissing the appeal, the Court

HELD: I.I. In the present case, 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. (Para 5) (761-F-GJ G

V.L. Tresa v. State of Kera/a, (2001) 3 SCC 549 and Sou. Vijaya@Baby

v. State of Maharashtra, (2003] 8 SCC 296, relied on.

757 H

-..:,

"21. But there can scarcely be any doubt that she must have A 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 B 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 tru~.

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 C 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 off ender 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 D 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 fats~ E 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 F 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; G

(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; H

(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 imprisonm_ent 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 20 I must have the knowledge or reason to believe that the main offence has been committed;

(III) person charged with the offence under Section 20 I l PC 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.

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 20 l is somewhat clumsily drafted but we think that the expression 'knowing or having reason to believe' in the first G paragraph and the expression 'knows or believes' in the second par.agraph 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 2-01. If it be supposed that the word 'believes'

H was used in a sense different from the expression 'having reason to

believe', it would be necessary for the purpose of inflicting punishment A upon the accused to prove that he 'believes' in addition to 'hz.ving 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 C assists the felon". (See I 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 D 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 20 I speaks of intention as distinct from a mere likelihood.

7. Section 20 I 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 20 I 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 Ser.tion 20 I IPC cannot be applied.

6. Learned counsel for the State has submitted that evidence of PW-26 G 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-a-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

oder of acquittal.

8. Coming to the question whether the plea relating to exercise of right of private defence can be made available vis-a-vis the deceased who had no role to play in the dispute, the provisions of Section 106 IPC needs to be B 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-a-vis the D 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 n-O scope for interference with the F order of the High Court in view of the pec'ific findings recorded regarding the role played by A-3 and A-4.

11. The appeal fails and is dismisse.~,

S.K.S.

Appeal dismissed.