DINESH KUMAR KALIDAS PATELversusTHE STATE OF GUJARAT

                        [2018] 1 S.C.R. 641                            641


               DINESH KUMAR KALIDAS PATEL                              A
                                 v.
                    THE STATE OF GUJARAT
              (Criminal Appeal Nos. 265-266 of 2018)
                       FEBRUARY 12, 2018                               B
        [KURIAN JOSEPH AND AMITAVA ROY, JJ.]
      Penal Code, 1860:
       s.201 – Whether conviction under s.201 could be maintained
while acquitting the accused of main offence – Held: A charge under    C
s.201 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
                                                                       D
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.
      s.201 – Unnatural death – Prosecution case was that the wife     E
of the accused committed suicide by hanging – Last rites attended
by father and brother of the deceased – After four months the father
of the deceased initiated criminal proceedings against accused
under various sections including s.498A and s.201 – Trial court
convicted the accused under s.498A and s.201, however, High Court      F
set aside conviction under s.498A while maintaining conviction
under s.201 on the ground that appellant did not give intimation to
the police of the unnatural death and that no post mortem was
conducted – On appeal, held: Neither the trial court nor the High
Court had any case that there was any intentional omission to give
information by the appellant to the police under s.202 against the     G
appellant – Mere fact that deceased allegedly died an unnatural
death could not be sufficient to bring home a charge under s.201 –
Unless prosecution was able to establish that accused knew or had
reason to believe that an offence has been committed and had done
                                                                       H
                                641
642            SUPREME COURT REPORTS                      [2018] 1 S.C.R.


A     something causing the offence of commission of evidence to
      disappear he cannot be convicted – There was 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 – It was also not the case
B
      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 – In the facts and circumstances, the
      conviction of the appellant under s.201 was not maintainable.
            Allowing the appeals, the Court
C
            HELD: 1. 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
D     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
E     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. 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
F     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. [Para 20] [651-B-E]
G            2. 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 Section
H     202 of the IPC of intentionally omitting to give information of the
    DINESH KUMAR KALIDAS PATEL v. THE STATE OF                     643
                   GUJARAT

unnatural death to the police. It is also not the case of the      A
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. In the above facts and
circumstances, the Sessions Court is not justified in convicting
the appellant under Section 201 of the IPC and the High Court
                                                                   B
maintaining the same. [Paras 22, 23] [651-G-H; 652-A-B]
     Hanuman and others v. State of Rajasthan (1994) Supp
     2 SCC 39; Palvinder Kaur v. State of Punjab AIR 1952
     SC 354 : [1952] SCR 94; Suleman Rehiman Mulani
     and another v. State of Maharashtra AIR 1968 SC
     829 : [1968] SCR 515; Ram Saran Mahto and another             C
     v. State of Bihar (1999) 9 SCC 486 : [1999] 2 Suppl.
     SCR 250; V.L. Tresa v. State of Kerala (2001) 3 SCC
     549 : [2001] 1 SCR 973; Sukhram v. State of
     Maharashtra (2007) 7 SCC 502 : [2007] 9 SCR 44;
     Sou Vijaya @ Baby v. State of Maharashtra (2003) 8            D
     SCC 296 : [2003] 3 Suppl. SCR 340; State of Karnataka
     v. Madesha (2007) 7 SCC 35 : [2007] 8 SCR 757;
     Hanuman and others v. State of Rajasthan (1994) Suppl.
     2 SCC 39 – relied on.
     Smt. Kalawati and Ranjit Singh v. State of Himachal           E
     Pradesh AIR 1953 SC 131 : [1953] SCR 546 –
     distinguished.
                      Case Law Reference
     [1952] SCR 94                   relied on      Para 7
                                                                   F
     [1953] SCR 546                  distinguished Para 7
     [1968] SCR 515                  relied on      Para 7
     [1999] 2 Suppl. SCR 250         relied on      Para 11
     [2001] 1 SCR 973                relied on      Para 12
                                                                   G
     [2007] 9 SCR 44                 relied on      Para 13
     [2003] 3 Suppl. SCR 340         relied on      Para 13
     [2007] 8 SCR 757                relied on      Para 14
     (1994) Suppl. 2 SCC 39          relied on      Para 21
                                                                   H
644            SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 265-266 of 2018.
            From the Judgment and Order dated 16.12.2015 of the High Court
      of Gujarat at Ahmedabad in Criminal Appeal No. 939 of 1995 with Criminal
      Appeal No. 1132 of 1995.
B           P. B. Suresh, Vipin Nair, Abhay Pratap Singh, Advs. for the
      Appellant.
           D. N. Ray, Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Shodhika
      Sharma, Advs. for the Respondent.

C           The Judgment of the Court was delivered by
            KURIAN, J.: 1. 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
D     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 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
E     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,
F
      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.
G            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.
           5. Heard learned Counsel appearing for the appellant and learned
H     Counsel appearing for the State.
     DINESH KUMAR KALIDAS PATEL v. THE STATE OF                                645
               GUJARAT [KURIAN, J.]

      6. Several contentions have been raised on merits. That apart, the       A
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                 B
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          C
      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             D
      false information respecting such offences knowing or having
      reason to believe the same to be false.”
      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          E
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.                                                                       F
     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               G
      provision, the conviction of Appellant 2 under Section 201 IPC on
      the facts found cannot be challenged. But on the other hand, if
1
  AIR 1952 SC 354
2
  AIR 1953 SC 131
3
  AIR 1968 SC 829                                                              H
646               SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A              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
B
               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 is an essential requisite for bringing home the offence
               under Section 201 IPC — see the decision of this Court in
C              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
D     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
E     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
F              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
G              postulates of the offence are also established.
               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:
      4
H         (1999) 9 SCC 486
       DINESH KUMAR KALIDAS PATEL v. THE STATE OF                             647
                 GUJARAT [KURIAN, J.]

           “In order to establish the charge under Section 201, Penal Code,   A
           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
                                                                              B
           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      C
        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          D
        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    E
           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.”
       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      F
paragraph 12:
        “12. Having regard to the language used, the following ingredients
        emerge:
           (I) committal of an offence;
                                                                              G
           (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
5
    (2001) 3 SCC 549
                                                                              H
648               SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A                 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
B     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
C              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 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
D              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
E              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
F              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
G     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.”
      6
           (2007) 7 SCC 502
H     7
          (2003) 8 SCC 296
        DINESH KUMAR KALIDAS PATEL v. THE STATE OF                              649
                  GUJARAT [KURIAN, J.]

       14. The decisions in Sou Vijaya (supra) and V. L. Tresa (supra)          A
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          B
         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             C
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             D
screen the offender. The offender may be either himself or any other
person.
       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                 E
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:                           F
         “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                 G
         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
8
    (2007) 7 SCC 35                                                             H
650            SUPREME COURT REPORTS                         [2018] 1 S.C.R.


A           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
B
            without performing the post-mortem and without informing the
            police. Thus as per my opinion the accused no. 1 is prima 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.”
C           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
D           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
E           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
F           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
G           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 accused No.1 for the offence punishable
H
        DINESH KUMAR KALIDAS PATEL v. THE STATE OF                              651
                  GUJARAT [KURIAN, J.]

         under Section 201 of the IPC, however, has committed an error in       A
         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.            B
       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            C
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      D
having remained alone for most of the time and it amounted to torture.
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             E
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         F
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.
                                                                                G
       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.
9
    1994 Supp (2) SCC 39                                                        H
652              SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     There is no charge under 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.
B            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.
C
      Devika Gujral                                                 Appeals allowed.




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