MOHAMMED v. STATE OF KERALA — 1988 DIGILAW 399 (KER)

Judgment :- 1. Crl.A.128 of 1985 is filed by the accused challenging the conviction and sentence under S.201 of the IPC. and Crl. A. 101 of 1986 is filed by the State on the ground that the proper conviction and sentence ought to have been under S.302 of the IPC. 2. The accused stood charged under S.302 and 201 of the IPC. Accused is alleged to have committed the murder of his wife Kochaisha and daughter Safiyath in the night of 6-12-1982 and concealed the corpses by dumping them in a well close to his house. The prosecution case is that accused and his relatives used to abuse and scold Kochaisha almost everyday, that in the eventful night the accused killed his wife by strangulating her, that he had also killed Safiyath by smothering her and that the dead bodies were stealthily removed and thrown into a neighbouring well. The dead. bodies were taken out of the well and were removed to the Government Medical College Hospital, Kottayam for postmortem examination. Though the first information statement was registered as unnatural death, investigation by Pw.19 revealed it to be a case of homicide and accordingly a report was sent for altering the Section of offence as 302 of the IPC. 3. It was Pw.11, a labourer who along with Bapputty as directed by the police took out the bodies of Kochaisha and Safiyath from the well. He stated that he saw a knot around the neck of Kochaisha with a saree. Pw.12 who conducted autopsy on the body of Kochaisha stated that M.O.1 saree was found around her neck. pw.12 stated that cut sections of the lungs showed congestion and exuded frothy fluid and air passages showed froth.' According to him, the death was due to ligature strangulation. Ext. P-7 postmortem certificate and pw.12's evidence would show that Kochaisha died of ligature strangulation. Injury number one is a symptom of ligature strangulation. The doctor deposed that it was sufficient to cause death in the normal course. pw,12 stated that injury Nos. 2 and 3 can be caused at the time of struggle by coming into contact with a smooth substance and that injury Nos. 4 to 7 can be caused if the deceased struggled at the time of strangulation and came into contact with bard substance. pw,12 stated that injury Nos. 2 and 3 can be caused at the time of struggle by coming into contact with a smooth substance and that injury Nos. 4 to 7 can be caused if the deceased struggled at the time of strangulation and came into contact with bard substance. He further stated that the palms and soles indicated that the body was not in the water for a long period Evidence of pw.12 conclusively proves that Kochaisha died of ligature strangulation. The defence version that it was a case of suicide can be firmly ruled out in view of the evidence of pw.12 that be did not find any symptom of drowning. 4. pw.13 conducted autopsy on the body of Safiyath and issued Ext. P-8 postmortem certificate. He found a pressure abrasion 0.6 x 0.2 cros. horizontally placed on the right side of nose 1.5 cros. above its tip and superficial lacerated wound 0.5 x 0.2 cros. vertically placed on the outer aspect of the middle of lower lip. The trachea and bronchi contained blood tinged frothy fluid. Both lungs were congested and oedematous. pw.13 stated that the death was on account of smothering. His evidence would also show that there was no water inside the body suggestive of drowning. According to him, the injuries could be caused if the assailant used force with hands on that part of the body of the deceased. 5. The evidence of Pws.12 and 13 conclusively established that Kochaisha died due to ligature strangulation and Safiyath died due to smothering. On going through the evidence we bold that the learned Sessions Judge was justified in holding that death of Kochaisha and Safiyath was not at all on account of suicide as suggested by the defence but it was really a case of homicide. 6. It has next to be considered as to whether the accused was responsible for accusing the death of his wife and daughter. The prosecution has not established any immediate motive for the accused to perpetrate the double murder. There is no evidence that on that fateful day the accused quarrelled with his wife and it is not clear what motivated him to kill her and his daughter. There is evidence that accused's mother, sister and sister's daughter were antagonistic towards Kochaisha. The prosecution has not established any immediate motive for the accused to perpetrate the double murder. There is no evidence that on that fateful day the accused quarrelled with his wife and it is not clear what motivated him to kill her and his daughter. There is evidence that accused's mother, sister and sister's daughter were antagonistic towards Kochaisha. In view of the absence of evidence to show that the accused had any special motive to kill his wife and daughter, the Sessions Judge held that it cannot be stated that the accused alone had the motive to kill them. He further found that the circumstantial evidence is very weak to bring home the guilt of the accused under S.302 of the IPC. and accordingly acquitted him of that charge. On going through the entire evidence we also agree with the learned Sessions Judge that the evidence is not sufficient enough to bring home the guilt of the accused under S.302 of the IPC. 7. Having found so, the learned Sessions Judge held that the accused committed offence punishable under S.201 of the IPC. This finding is seriously assailed by the defence counsel. 8. Prosecution mainly relies upon the testimony of pws.1 and 4 to bold that at any rate the finding of the Sessions Judge that the accused bad committed offence punishable under S.201 of the I P. C. does not at all warrant interference. pw.1's wife's house is very close to the house of the accused. pw.1 deposed that while he was sleeping in bis wife's house during the night of 6-12-1982, be beard the barking of a dog, that he got up and that after lighting a lantern and looking outside he saw accused entering into his bouse from the western side and after sometime coming out carrying his daughter Safiyath. pw.1 thought that the accused was taking Safiyath out to enable her to answer calls of nature. According to him, Safiyath was motionless. After half an hour he heard a loud cry from the direction of the well near the highway road. It is 50 feet away from bis bouse. He ran towards that direction and saw accused, bis mother, his sister's son, his elder brother's son, pws. 2 and 4 and some others. He beard the accused telling others that his wife and child somehow slipped into the well and that they should be rescued. It is 50 feet away from bis bouse. He ran towards that direction and saw accused, bis mother, his sister's son, his elder brother's son, pws. 2 and 4 and some others. He beard the accused telling others that his wife and child somehow slipped into the well and that they should be rescued. pw.1 got a torch from a person who was standing near him and flashed the light inside the well. He saw Safiyath floating in the water and be also saw another dead body lying beneath the water. pw.1 told pws. 2 and 4 that be bad seen the accused carrying his child on his shoulder. On going through the evidence of pw. I we do not find any infirmity in it. We are of opinion that the Sessions Judge was justified in placing reliance on his testimony. 9. Pw. 2 resides 10 metres away from the house of the accused. pw. 2 who was cited by the prosecution to prove that he bad seen the accused carrying bis child towards western side did not support the prosecution and he was declared hostile and was cross-examined by the Public Prosecutor. pw. 4 deposed that in the night of 6-12-1982 he beard the sound of something falling in the well, that be got up but did not see anything, that after 20 minutes be heard another similar sound and that be got up and looked and saw accused going to bis bouse from the well. It is further spoken to by him that he saw the accused, his mother and his brother's son near the well and that the accused stated that his wife and daughter were inside the well and that they should be saved. pw. 4 speaks about the presence of pws 1 and 2 near the well. It is also stated by hint that when one among them flashed torch light inside the well he saw the dead body of the child and also realised that another body was also in the well. pw. 4 could very well recognise the accused with the help of the light on the electric lamp post and also of the natural light. pw. 4 could very well recognise the accused with the help of the light on the electric lamp post and also of the natural light. The learned Sessions Judge relied on the evidence of pws.1 and 4 to hold that though the prosecution failed to establish the charge of murder against the accused, the evidence of offence punishable under S.201 of the IPC. has ben really established. 10. The attack on the evidence of pw. 4 is that though be stated that he resides close to the well the plan does not show the existence of any such bouse. pw. 4 stated that be resides 12 feet away from the well in which the dead bodies were found. His evidence would also show that there was electric light on the lamp post near the well. According to him the lamp post is seven feet away from bis house. When investigating officer was cross-examined not even a suggestive question was put to him that Pw. 4 does not have a house near the well as spoken to by him. Considering the whole evidence of Pw. 4 we hold that he has given a true version before the Court. His cross-examination does not reveal that he has any axe to grind against the accused. 11. Counsel for the accused contended that as the principal offender is unknown there cannot be any question of finding the accused guilty under S.201 as. it could not be held that he wanted to screen any particular person from punishment. In In re Kaliaperumal (AIR 1954 Madras 1088) the Madras High Court convicted the accused under S.201 though there was no evidence to convict him for the offence of murder. As the accused admitted possession of ornaments belonging to the deceased and also disposal of the same by himself the Court held that from the disposal of the property it can reasonably be presumed that he had intention to screen the offender and it would constitute offence under S.201 of the IPC. In Emperor v. Rino Sobedar (1912 Crl. Q. 721) it was held that to constitute an offence under S.201 it is not necessary that the accused must be aware of the identity of the offender whom he intends to screen. It was contended that to constitute an offence under S.201 the accused must be aware of the identity of the person screened. Q. 721) it was held that to constitute an offence under S.201 it is not necessary that the accused must be aware of the identity of the offender whom he intends to screen. It was contended that to constitute an offence under S.201 the accused must be aware of the identity of the person screened. In the above case, the accused intended to screen bis two sons whom he suspected of being the murderers. It was contended that as they were acquitted of the charge of murder, they were not the offenders and therefore the accused committed no offence in screening them. The above contention was rejected by the Court. 12. The ingredients of an offence, under S.201 IPC. are: (1) that an offence was committed; (2) that the accused knew or had reason to believe that such an offence had been committed; (3) that the accused caused evidence thereof to disappear; and (4) that the accused caused disappearance of the evidence with the intention of screening the offender from legal punishment. It has been held in several decisions that there is no justification for holding that the offender cannot be punished for the offence of concealing evidence or causing the disappearance of evidence of the commission of the offence by himself. It is useful to refer to the decision reported in Chinna Gangappa v. Emperor (AIR 1930 Madras 870) where it has been held as follows: "There is no misjoinder in charging an accused in the alternative with the main offence and under S.201 and 203. nor is there anything irregular or improper in a lodge holding that, while the accused, though acquitted, is himself not free from the suspicion of being the actual murderer, he can be nonetheless convicted under Ss.201 and 203." The Madras High Court held that the true principle seems to be that there is no law preventing the main offender being convicted under S.201 to 203. but in practice no Court will convict an accused both of the main offence and under these sections. But the Court held that if the commission of the main offence is not brought home to the accused, then he can be convicted under S.201 to 203. In Buch v. Emperor (1903-39-P. R. Judl. Cr. but in practice no Court will convict an accused both of the main offence and under these sections. But the Court held that if the commission of the main offence is not brought home to the accused, then he can be convicted under S.201 to 203. In Buch v. Emperor (1903-39-P. R. Judl. Cr. Jud 1) which is referred to in the above Madras decision it was held that an accused acquitted of the charge of committing a crime can be convicted under S.201 in respect of the offence "with the commission of which he is no longer charged or liable to be charged" and the mere suspicion that an individual is the actual murderer or the fact that he has even had his trial and been acquitted of the offence of murder will not prevent his conviction under S.201. In Ditta v. Emperor (AIR. 1928 Lahore 906) the Court held: "When an accused person has been acquitted of a charge of committing a crime, the fact that he had been suspected and tried of the principal offence would not prevent his conviction under S.201, if them is clear proof that he has caused the evidence to disappear in order to screen some unknown offender from legal punishment." In the above case the accused Ditta was originally charged under S.302. Sessions Judge held that the offence under S.302 has not been made out. He was acquitted on that count. But the Sessions Judge convicted him under S.201 on the ground that at his instance certain discoveries bad been made and he was therefore guilty of having caused the evidence of the commission of the offence of murder to disappear with the intention of screening the offender. In Sawanta v. Emperor (AIR. 1932 Allahabad 71) it has been held that where the evidence is found to be insufficient to convict the accused of the murder of a certain person and they are acquitted, they can be convicted under S.201 if the evidence as to the disposal of the dead body by them is found to be reliable. In the above case evidence was found to be insufficient for murder. But there was no difficulty in convicting them under S.201 as the evidence was strong enough on that aspect of the matter. In Rannun v. King Emperor (AIR. In the above case evidence was found to be insufficient for murder. But there was no difficulty in convicting them under S.201 as the evidence was strong enough on that aspect of the matter. In Rannun v. King Emperor (AIR. 1926 Lahore 88) it has been held that a person charged with an offence of murder can be convicted under S.201, without a further charge being made against him under that Section and such a conviction is warranted by S.237 of the Crl. P. C. (old code). 13. The Privy Council in Begu v. Emperor (AIR. 1925 P. C. 130) upheld conviction under S.201 though the charge under S.302 was not established. Reference is made to Begu v. Emperor in AIR. 1953 SC. 131 (Kalawati v. H. P. State) and the Supreme Court held that the acquittal of the main offence is no legal impediment to the accused's conviction under S.201 of the IPC. The correct legal position is that where there is cogent evidence that the accused caused evidence to disappear in order to screen another, Known or unknown, the mere fact that he had been suspected or even tried and acquitted of the principal crime, would not by itself prevent his conviction under S.201 of the IPC. The mere fact that it was believed at first that the accused was concerned in the actual murder would not debar the Court from analysing the evidence and coming to a finding regarding offence under S.201. In view of the decision in Kalawati v. H. P. State (AIR 1953 SC 131) the indubitable position is that even in a case where accused has been acquitted under S.302, be can still be convicted under S.201 provided evidence in that regard is acceptable. 14. Counsel for the accused relied on Dasaratharama Reddy v. State of A. P. (1971 SCC Crl. 472) which has been followed by this Court in Ramesan v. State (1985 KLT 887) and contended that if the evidence relating to the crime and disappearance of its evidence is the same and the case of the prosecution regarding the offence of murder is not accepted, accused cannot be convicted under S.201 of the IPC. In the above cases evidence regarding the offence under S.302 and 201 was the same and hence it was held as aforesaid. In the case in hand the position is entirely different. In the above cases evidence regarding the offence under S.302 and 201 was the same and hence it was held as aforesaid. In the case in hand the position is entirely different. Regarding the charge of murder there is hardly any acceptable evidence to establish the prosecution case. But as regards the offence under S.201, the Sessions Judge has held that evidence is sufficient to bring home the guilt under that charge. On scanning the evidence we too have found it acceptable and trust-worthy. As there is ample evidence supporting the prosecution case that the accused committed offence under S.201, he cannot escape liability on the ground that as the principal offence has not been proved, the Court cannot convict him under S.201. We find no reason to interfere with the conviction and sentence entered against the accused by the learned Sessions Judge. Both the appeals are dismissed.