Supreme Court of India
PADMINI MAHENDRABHAI GADDAversusSTATE OF GUJARAT
- Citation
- 2017 INSC 622
- Decided
- 17 July 2017
- Disposal
- Matter referred to larger bench
- Bench
- N V RAMANA
Holding
The conviction under Section 201 IPC is upheld, but the sentence is reduced to two years' rigorous imprisonment with fine.
Summary
The appellant, Padmini Mahendrabhai Gadda, was convicted under Section 201 of the IPC for causing disappearance of evidence and giving false information to screen the offender in a murder case, while being acquitted of the murder charge itself. The trial court sentenced her to two years' rigorous imprisonment, which the Gujarat High Court suo motu enhanced to seven years. On appeal, the Supreme Court examined whether the prosecution had proved all ingredients of Section 201, particularly the requirement of active participation and intent to screen the offender. The Court held that mere silence and absconding, without active conduct, do not satisfy the statutory elements, but accepted that false statements to the complainant constituted giving false information. Consequently, the conviction under Section 201 was upheld, but the enhanced sentence was deemed excessive and reduced to the original two years with a fine. The appeal was therefore allowed in part, confirming the conviction but modifying the punishment.
Issues considered
- Whether the evidence established all the ingredients of Section 201 IPC to sustain the conviction of the appellant.
- Whether the High Court was justified in suo motu enhancing the appellant's sentence from two years to seven years.
Legislation cited
- Code of Criminal Procedure, 1973s. 313, s. 377
- Indian Penal Code, 1860s. 120B, s. 135(1), s. 201, s. 302, s. 511
Subjects
Section 201 IPCfalse informationdisappearance of evidenceconvictionsentence enhancementcircumstantial evidencemurderconspiracyappellate jurisdiction
Judgment
[2017] 7 S.C.R. 825
PADMINI MAHENDRABHAI GADDA A
v.
STATE OF GUJARAT
(Criminal Appeal No. 40 of2007)
JULY17,2017 B
[N. V. RAMANA AND PRAFULLA C. PANT, JJ.]
Penal Code, 1860 - s. 201 - Causing disappearance of
evidence of offence, or giving false information to screen offender
- Ingredients of s. 201 - Prosecution case that main accused owing C
to his illicit relationship with the appellant, committed murder of
appellants husband with the help of the absconding accused, and
· that the appellant remained silent and absconded with the main
accused - Conviction of the main accused u/s. 302 and 20 I,
however, appellant convicted only u/s. 201 and sentenced to two
years RI - High Court suo motu enhanced the sentence of the D
appellant to seven years - On appeal, held: Per N. V.
Ramana, J. : While considering the charge u/s. 201, it is mandatory
for the prosecution to prove that the accused actively participated
in the matter of disappearance of evidence and with an intention to
screen the offender - Remaining silent and absconding with the
E
accused and moving from one place to another place will not supply
the evidence or fill the gap which is necessary to prove the
ingredients u/s.201 - Finding of the courts below that by remaining
silent, appellant indirectly abetted the offence of causing
disappearance of proof of murder, cannot be accepted - Courts
below convicted appellant more on sunnises and conjectures, thus, F
conviction u/s. 201 set aside - Appellant having already undergone
. the sentence imposed by the trial court, order passed by the High
Court set aside - Per P. C. Pant, J. : Appellant gave false information
to screen offender, as such, was rightly held guilty by the courts
below in respect of charge of offence punishable u/s. 201 -Appellant
G
having already served more than two years' imprisonment during
the period of trial/appeal; that she is sixty years old, and twenty
three years have passed from the date of incident, sentence awarded
by the High Court reduced to two years RI with fine - In view of
difference of opinion, matter referred to larger Bench.
H
825
826 SUPREME COURT REPORTS [2017] 7 S.C.R.
A Per N. V. Ramana, J.:
Allowing the appeal, the Court
HELD: 1.1 It is well settled that circumstantial evidence
should be strong, convincing and unassailable leading to the only
inference that crime should have been committed by the accused
B only and it should not give any other inference. [Para 12] (834-G-
H; 835-A]
1.2 Criminal trial can never be a fanciful flight of imagination.
While considering the charge under Section 201 I.P.C, it is
mandatory for the prosecution to prove that the accused actively
C participated in the matter of disappearance of evidence and with
an intention to screen the offender. To convict the accused for
the offence punishable under Section 201, it is necessary that all
the ingredients are satisfied pointing out at the guilt of the accused
and a mere suspicion is not sufficient. Accused can never be
convicted on the basis of probabilities or on assumptions and
D presumptions. [Para 19] [838-B-D]
1.3 Looking at the entire findings of the trial court, it is
crystal clear that the court gave a clean chit to the appellant saying
that she is in no way involved in commission of the crime. The
trial court gave a categorical finding that there is no evidence of
E participation of accused No.2 in disappearing the said proof of
offence of murder, but by remaining silent, she has indirectly
abetted the offence. It was observed that either out of fear or for
the best reason known to her, she remained silent and abetted
or aided the offence punishable under section 201 IPC. [Para 21)
[839-E-G]
F
1.4 The whole case of the prosecution is based upon
circumstantial evidence except for the evidence of sole eye
witness 'A', the daughter of the deceased and the appellant. The
eye witness, in her statement, clearly stated that the appellant
was crying and she was pleading accused No.1 not to kill her
G husband. She further stated in the cross-examination that accused
No.1 told the appellant to keep mum and not to make any trouble
as accused No. 1 and the absconding accused would come back.
Accused No.2 reiterated the same in her statement under Section
313 CrPC. [Para 22) [839-G-H; 840-A)
1.5 The finding of the courts below, that by remaining silent,
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 827
accused No.2/appellant indirectly abetted the offence of causing A
disappearance of proof of murder, cannot be accepted. Remaining
silent and absconding with accused No.I and moving from one
place to another place will not supply the evidence or fill the gap
which is necessary to prove the ingredients u/s 201 IPC. The
trial court, having specifically observed that accused No. 2 had B
nothing to do with the disappearance of evidence and without
recording any finding with regard to motive, convicted her under
Section 201 IPC. In fact the reasoning given by the trial court
makes it clear that court could not give any reasoning with regard
to motive which is the crucial aspect to fasten the liability on the
accused. With regard to the factum of remaining silent the reason C
is forthcoming from the evidence of eye witness and the statement
of appellant which was not taken into consideration. The
prosecution miserably failed to prove the same. [Para 25) [840-
F-H; 841-A)
1.6 The trial court went wrong in convicting the appellant D
without there being any finding with regard to the mens rea of
the accused. Particularly, when a specific finding is recorded by
. the trial court that there is no evidence for convicting the accused
under Section 201 IPC, it ought not to have convicted her for the
same more on assumptions and presumptions. When the
appellant and accused no 1 assailed the order of trial court before E
the High Court, the High Court issued notice under Section 377
Cr.P.C. for suo motu enhancement of sentence to the appellant.
The High Court enhanced the sentence to 7 years. [Para 27)
[842-A-C]
1.7 There is no dispute with regard to the fact that let F
punishment fit the crime is one of the main objects of sentencing
policy. The sentence should be adequately reasonable,
proportionate to the nature of culpability is a key factor.
Sentencing is a matter of discretion of the trial court and the
· appellate court in the normal circumstances will not interfere with
such discretion. But will interfere only when it finds that there is G
miscarriage of justice, flagrant abuse of law and where the
discretion is not properly exercised by the sentencing court. The
High Court first and foremost has to deal with the conviction
appeal on its own merits and once it comes to the conclusion that
the trial court was right in imposing conviction, then it has to H
828 SUPREME COURT REPORTS [2017] 7 S.C.R.
A delve into the aspect whether the punishment was proportionate
or not. From the finding of the High Court that the appellant is
involved actively in committing the murder and the findings with
regard to conspiracy and particularly, in observing that as the
State has not preferred any appeal against acquittal it is not in a
position to deal with the same, it appears that the High Court in
B
a prejudiced manner enhanced the sentence. Looking at the
entire reasoning of the High Court, the findings of the trial court
were not disturbed and infact were upheld by the High Court but
it only differed with the sentencing aspect. The reasoning given
by the appellate court for enhancing the sentence and dismissing
c the appeals can be a valid and correct reasoning for convicting
the accused under section 302 or 120B when the State has
preferred an appeal against acquittal. But basing on such
reasoning the appellant cannot be convicted under section 201.
The ingredients to attract the offence under section 201 are
D altogether different. Her mere silence cannot give rise to a
presumption that she has committed the offence. In the instant
case both the trial court and the appellate Court, failed to
appreciate the case in its proper perspective, relied more on
assumptions and based on presumptions has convicted the
appellant, which is contrary to the settled law. [Para 28] [843-C-
E H; 844-A]
1.8 Generally, in an appeal against conviction, where
concurrent findings were recorded by both the courts below, this
Court would not interfere. But, in the instant case both the courts
below, without satisfying the ingredients of Section 201 I.P.C.,
F convicted the appellant more on surmises and conjectures, which
invited interference of this Court. [Para 30) (844-B-C]
1.9 The prosecution has not been able to prove the guilt of
the appellant/accused No.2 for the offence punishable under
Section 201 IPC beyond reasonable doubt. The appellant/accused
No.2 has already undergone the sentence imposed by the trial
0 court. The order passed by the High Court is set aside. [Para 31]
(844-D)
Ananda Dagadu Jadhav & Ors. v. Rukminibai Anand
Jadhav & Am: (1993) Suppl. 3 SCC 68; Sou. Vijaya
alias Baby v. State of Maharashtra (2003) 8 SCC 296;
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 829
Raghav Prapanna Tripathi v. State of U.P. AIR 1963 A
SC 74 : [1963] SCR 239 - referred to.
Case Law Reference
(1993) Suppl. 3 SCC 68 referred to Para9
(2003) 8 sec 296 referred to Para 18
[1963] SCR 239 referred to Para 26 B
Per Prafulla C. Pant, J. (Partly Dissenting):
Partly allowing the appeal, the Court
HELD: 1.1 It is clearly established that by making false
statement by appellant to her own brother PW-3 (complainant)
as to whereabouts of the deceased, and not allowing PW-34 to C
use the bathroom attached to the bedroom (where dead body
was concealed), the appellant gave false information to screen
offender (A-1). As such, she was rightly held guilty by the courts
below in respect of charge of offence punishable under Section
201 IPC. Some observations of the trial court against its own D
finding as to guilt of A-2 are not relevant for the decision of this
Court, particularly when judgment of the trial court stands merged
· in the judgment of the High Court and, as such, the appellant
cannot be acquitted from the charge of offence punishable under
Section 201 IPC. [Para 15] [848-G-H; 849-A]
1.2 In each case the facts and evidence of that particular E
case are to be seen to come to the conclusion as to whether the
ingredients of a particular offence have been made out or not.
[Para 15] [849-B]
1.3 There is no error of law in the orders passed by the
courts below in concluding that the appellant is guilty of the charge F
of offence punishable under Section 201 IPC. However, as to the
sentence, the High Court awarded the maximum sentence to A-
2 (appellant). It has been pointed out from the record that the
appellant has already served more than two years' imprisonment
during the period of trial/appeal; that she is sixty years old, and
G
twenty three years have passed from the date of incident. In these
circumstances, since the sentence under Section 201 IPC awarded
·to A-1 has attained the finality in respect of the same charge, as
such, it would not be justified to award A-2 the enhanced sentence
as directed by the High Court, particularly considering her role
H
830 SUPREME COURT REPORTS [2017] 7 S.C.R.
A in respect of said charge, compared to that of A-1. The conviction
recorded by the courts below against the appellant in respect of
offence punishable under Section 201 IPC is upheld but the
sentence awarded by the High Court is reduced to two years
rigorous imprisonment with fine, as recorded by the trial court.
[Para 16, 17] [849-C-E]
B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
40of2007.
From the Judgment and Order dated 04. l 0.2001 of the High Court
of Gujarat in Criminal Appeal No. 833 of 1997 and Criminal Misc.
c Application No. 1121 of 1998 in Criminal Appeal No. 833of1997.
V. Giri, Sr. Adv., Nikhil Goel, Saurin A. Shah, Advs. for the
Appellant.
D. N. Ray, Ms. Hemantika Wahi, Ms. Jesal Wahi, Advs. for the
Respondent.
D
The Judgments and Order of the Court were delivered by
N. V. RAMANA, J. 1. Aggrieved by the judgment and order,
dated 4'h October, 2006, passed by the High Court of Gujarat at
Ahmadabad in Criminal Appeal No. 833of1997 and Crl.M.A. No. 1121
of 1998 in Crl.A. No. 833of1997, the appellant is before this Court.
E
2. The facts of the case in a nutshell as presented by the
prosecution, are that the appellant herein and Mahendrabhai (deceased)
had love marriage in the year 1981 and they were blessed with two
daughters. The deceased was running health clubs in the city of
Ahmedabad in the name and style of P.M. Health Club at two different
F locations; one at Naranpura and the other at Ambawadi. Accused No. I
i.e. Kishore Thakkar was employed by the deceased to work at
Naranpura location. With passage of time, the appellant (A2) developed
extramarital relationship with Kish ore Thakkar (A I) and in consequence
of their pursuit, they planned together to eliminate Mahendrabhai
G (deceased). In that context, on 12.12.1994, when the complainant's wife
contacted the appellant at about 10:30 AM, appellant informed her that
the deceased had gone to Naranpura Health Club. Further, when
complainant enquired about the deceased at 3:00 PM, appellant is alleged
to have replied that the deceased left for Bombay. Hearing this,
complainant became suspicious about the way his sister replied. The
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 831
[N. V. RAMANA, J.]
complainant along with his wife, at about 4 pm on that day, visited the A
house of the appellant and asked her to go and get her elder child back
from the school. After she went out of the house hesitatingly, he searched
the house and found his brother-in-law lying dead in a pool of blood in
·the bathroom and Al was present there. As soon as he tried to catch
hold of Al, he ran away from the spot halfnaked by pushing him. While
B
that is so, the appellant who went to bring back her elder child from the
school, did not return to her home.
3. Basing on the complaint of the brother-in-law of the deceased,
police registered Crime No. !.C.R. 759 of 1994 under Section 302 read
with Sections 120B and 201 oflndian Penal Code, 1860 [hereinafter
'l.P.C' for b~evi~y]. After conducting panchnama at the scene of offence, C
body of the deceased was sent for postmortem. Carrying on investigation
of the crime, police nabbedand arrested both the accused on 23.01.1995
from S.T. Bus Station, Mehsana. After that, they collected evidences
from various places where both the accused had spent their days together
after the date of occurrence until their arrest. Upon filing of charge D
sheet by the police, the trial court took cognizance of the offence and
framed charges. Accused pleaded not guilty and claimed to be tried.
4. The trial court framed the following charges for trial:
"(1) On 12-12-1994 before about six o'clock in the evening you
all accused together with one another absconding accused who E
has not been arrested, namely, Piyush Sevantilal Raval hatched a
criminal conspiracy to commit murder of the deceased
Mahendrabhai at House No. I, Shakuntal Apartment, Opp:
C.N .Vidhyalaya situated in N avrangpura area, in Ahmedabad and
by doing so you committed an offence under Sec. 120(B) oflndian F
Penal Code within the jurisdiction of this Court.
(2) Further more, on the aforesaid date, time and at the aforesaid
place, with regard to complete your criminal conspiracy, accused
No. l and the absconding accused Piyush by inflicting numerous
blows by knife on the body of the deceased Mahendrabhai Gadda, G
causing grievons injuries intentionally caused his death by
committing murder and by doing so you accused have committed
the offence U/s.302 r/w sec.120(B) of the Indian Penal Code
within the jurisdiction of this Court.
(3) Further, on the aforesaid date, time and place, pursuance to H
832 SUPREME COURT REPORTS [2017] 7 S.C.R.
A your aforesaid criminal conspiracy, you accused, by shifting the
dead ,body of the deceased and by cleaning the place of offence
destroyed the evidence with an intention to get freedom from the
imprisonment of the offence of murder and thereby you accused
have committed the offence punishable u/S.201 of the Indian Penal
Code within the jurisdiction of this Court.
B
(4) Further, on the aforesaid date, time and place, pursuant to
your criminal conspiracy, to make pieces of the dead body,
committed an attempt to destroy the evidence by collecting a
needle, jute-thread, plastic bag, iron blade etc., with an intention
to destroy the evidence and to see that no evidence regarding the
c identity of the dead body as also regarding the injuries caused to
Mahendrabhai Gadda is available, and by doing so you have
committed an offence punishable U/s. 201 r/w sec. 511 of the
Indian Penal Code within the jurisdiction of this Court.
(5) Further, on the aforesaid date, time and place, you accused
D No. I by possessing a deadly weapon like knife with you, committed
a breach of Public Notice of Prohibition ofArms published by the
Police Commissioner, Ahmedabad City and by doing so you have
committed the offence punishable U/s.135( I) of the Bombay Police
Act, within the jurisdiction of this Court."
E 5. The trial court, after full-fledged trial, came to the conclusion
that Al has committed offences punishable under Sections 302 and 201
ofl.P.C. and Section 135( 1) of Bombay Police Act and convicted him to
undergo life imprisonment for the offences punishable under Section
302 ofl.P.C., in default to suffer rigorous imprisonment for 3 months,
F and for the offence punishable under Section 201 of I.P.C. sentenced
him to undergo rigorous imprisonment for two years and imposed fine of
Rs.5,000/-, in default to suffer rigorous imprisonment for three months.
Appellant herein, who was convicted for the offence punishable under
Section 201 of l.P.C alone, was sentenced to undergo rigorous
imprisonment for 2 years and imposed fine of Rs. 5,0001-, in default to
G further suffer rigorous imprisonment for 3 months.
6. Both the accused, being dissatisfied with the judgment of the
trial court, approached the High Court by way of separate criminal
appeals. The High Court, upon considering the facts and circumstances
of the case, initiated suo m'otu proceedings for enhancement of sentence
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 833
[N. V. RAMANA, J.]
in respect of accused No.2/appellant herein. The High Court while A
rejecting the appeals preferred by the accused, passed an order in the
criminal miscellaneous application enhancing the sentence imposed by
the trial court in respect of accused No.2/appellant herein for the offence
punishable under Section 20 I ofl.P.C to rigorous imprisonment for seven
years and imposed fine ofRs.7,000/- failing which she had to further B
suffer rigorous imprisonment for two years. Assailing the same, the
. appellant is before this Court by way of this appeal.
7. Mr. V. Giri, learned senior counsel appearing for the appellant,
vehemently contended that the Courts below have committed serious
error in appreciating the evidences against the appellant and wrongly
convicted her under Section 201 ofl.P.C, disregarding numerous vital C
portions of her statements. The appellant/accused No. 2 had never been
part of the crime and the reason behind her keeping silence when accused
No. 1 made entry into her house and committed the heinous crime of
brutally murdering her husband was that as a matter of fact, on the
fateful day at the time of occurrence, the appellant was sleeping with D
her children. Accused No. 1 subjected her to remain under great fear
that if she raises any alarm, her children may also be assaulted by the
intruder, which drove her to be a silent spectator to the incident.
8. It is further contended that after the occurrence, the appellant
has not eloped with accused No.l willfully but by taking advantage of E
their relationship, accused No. 1 has forcefully taken her to various places
· and kept her under fictitious names. It is also worthwhile to point that
the appellant remained silent during her stay with accused No. 1 after
the incident because ofher apprehension that police and family members
would first of all find fault with her due to her illicit relationship with the
main accused. Even duringthe period when the appellant was held hostage F
by accused No. 1 at various places till their arrest, she could not get
access to seek help of anyone mainly because, whenever the main
accused went out of the room, he used to keep the appellant locked
inside. This fact is evident from the deposition of PW 19 (Ext. 72). Her
behavior at that moment was quite natural and she had not played any G
role to destroy the evidence, but the Courts below did not appreciate the
same in true legal perspective before convicting her under Section 201
IPC. Taking a dig at the order of Courts below, learned senior counsel
submitted that the appellant at any rate could not have been held guilty
for the offence merely basing upon the circumstantial evidence i.e. needle,
H
834 SUPREME COURT REPORTS [2017) 7 S.C.R.
A jute thread, plastic bag, iron blade etc., were found in the house of
appellant connecting her to the crime and attributing role by way of
aiding the main offender.
9. Advancing another fervent argument that the High Court passed
the impugned order in a mechanical way without application of legal
B principles to the case of appellant, learned senior counsel invited our
attention to Ext. 4 to show that the appellant was in fact charged for the
offence under Section 201 r/w Section 511 ofI.P.C. In that situation, if
the appellant is, per se, convicted for the offence, she would have been
awarded the maximum quantum of sentence which comes up to three
C years and six months only. Placing reliance on a decision of this Court
in Ananda Dagadu Jadhav & Ors. Vs. Rukminibai Anand Jadliav
& Anr. (1993) Supp. (3) SCC 68, learned senior counsel made a strenuous
attempt that the trial court after considering this aspect by tangible legal
principle took a right view and accordingly imposed sentence. Even if
this Court finds the appellant guilty of the offence, the impugned order
D passed by the High Court should be set aside restoring that of the trial
court.
10. Learned counsel for the State of Gujarat, however, supported
the judgment of the High Court and submitted that the High Court has
rendered the impugned judgment following just principles of law and
E taking into account the veracity of offence committed by the appellant,
the sentence has been reasonably enhanced and the same does not call
for interference by this Court.
11. Having heard the learned counsel for both sides and bestowing
attention to the voluminous material placed before this Court, following
F issues fall for consideration of this Court:
1) Whether the Courts below were right in convicting the appellant
under Section 201 of the Indian Penal Code?
2) Whether the High Court was right in suo motu enhancing the
sentence from two years to seven years?
G
12. I have given my anxious consideration to several aspects
involved in the case. The entire case of the prosecution rests upon
circumstantial evidence except for the direct evidence of Ami, who is
the daughter of the deceased and the appellant. It is well settled that
-
circumstantial evidence should be strong, convincing and unassailable
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 835
[N. V. RAMANA, J.]
leading to the only inference that crime should have been committed by A
the accused only and it should not give any other inference.
13. A thorough look at the facts of the case put forth by the
prosecution reveals that accused Nos.I and 2 are living in an illicit
relationship and in pursuit of the same, they have committed the murder
of the deceased and the complainant is none other than the brother of B
appellant and brother-in-law of the deceased.
14. Prosecution, to bring home the guilt of the accused, has
examined 48 witnesses in addition to voluminous documentary evidence.
After a full-fledged trial, the trial court has come to the conclusion that
accused No. l with the help of the absconding accused has committed c
the murder of the deceased and held him guilty for the offence punishable
under Sec.302 ofl.P.C. As far as accused No.2/appellant is concerned,
the Court has observed that there is no evidence available to show that
she is a consenting party or she had a previous meeting of mind with
accused No. I to murder the deceased and as such accused No.2 is not
guilty for the offence of murder and for the acts done by accused No. I D
of committing the murder of the deceased. The trial court further
observed that her silence is due to fear and being in a helpless condition
and with an apprehension that her children and herself might be injured
by accused No. l and absconding accused. It is quite natural that accused
No.2 could not have asked for help. But the trial court opined that up to E
1.00 or 2.00 p.m., accused No.I was away from the place of offence
and during that time, she could have got the help.
15. The trial court further observed that her subsequent conduct
can be attributed for her consent or abetment of the offence of destroying
the proof of murder. Cutting instrument, its blades, plastic yellow color F
tags and other articles found at the place of offence and second part of
the plastic yellow tag found from the house ofrelative of accused No. I
would go to show that the preparation for destroying the proof of murder
was planned by accused No.I and accused No.2 by remaining silent.
Still the Court felt that she is not a conspirator but after 7 .30 a.m. on 12-
12-1994, she allowed accused No.2 to enter into her house again and G
remain with the dead body in the bathroom of the bedroom. That act
shows that either out of fear or for reasons best known to her, she
abetted or aided the offence punishable under Section 201 I.P.C.
Regarding disappearance of the evidence of offence, it is further observed
by the trial court that though there is no evidence of participation of H
836 SUPREME COURT REPORTS [2017] 7 S.C.R.
A accused No.2 in causing disappearance of the said proof of offence of
murder but by remaining silent, she abetted the offence of causing
disappearance of evidence of murder and as such convicted both the
accused for the offence under Section 201 I.P.C.
16. The High Court while hearing the appeals as well as the
B miscellaneous petition for the suo motu enhancement of sentence, has
categorically observed that accused No. I might have entered into the
house of the deceased with the consent of A2. Further, she gave all
false replies to the complainant and his wife. The High Court observed
that when accused No. I was not present in the house for 6 to 7 hours, at
least she should have informed anyone about the incident. All these
c clearly involve her actively in the crime along with accused No. I. The
evidence also establishes that accused No.2 permitted accused No. I to
enter into the house and allowed him to keep other articles. All the
above acts demonstrate her active involvement in the crime in question
indicating that conspiracy has been established by prosecution, but as no
D appeal is filed by the State, the High Court has not dealt with the issue.
The High Court finally held that byway of cogent, reliable and consistent
evidence, the prosecution proved that accused No.2, though knowing
fully well that her husband was brutally murdered by accused No. l, did
not inform anyone nor filed complaint. The High Court held that the trial
court was therefore justified in convicting accused No.2 for commission
E of offence punishable under Section 201 I.P.C, but the trial court has
imposed lesser sentence which is improper, miscarriage ofjustice and in
the result, enhanced the punishment to seven years.
17. At this juncture, I deem it appropriate to extract Section 201
ofl.P.C for better appreciation.
F
201. Causing disappearance of evidence of offence, or giving
false 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 offend-er from legal
G punishment, or with that intention gives any infor-mation respecting
the offence which he knows or 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
H to seven years, and shall also be liable to fine; if punishable with
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 837
[N. V. RAMANA, J.]
imprisonment for life.-and if the offence is punishable with A
1[imprisonment for life], or with imprisonment which may extend
to ten years, shall be punished with imprison-ment of either
description for a term which may extend to three years, and shall
also be liable to fine; if punishable with less than ten years'
imprisonment-and if the offence is punishable with imprisonment B
for any term not extend-ing 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 imprisonment pro-vided for the offence, or with fine, or with
both.
Illustration A, knowing that B has murdered Z, assists B to hide C
the body with the intention of screening B from punishment. A is
liable to imprisonment of either description for seven years, and
also to fine.
18. As laid down by this Court in Sou. Vijaya alias Baby Vs.
State ofMaharashtra, (2003) 8 SCC 296, in order to convict a person D
under Section 201 ofl.P.C, following ingredients are necessary-
a. That an offence has been committed;
b. That the accused knew or had reason to believe the commission
of such offence; E
c. That with such knowledge or beliefhe/she-
1. caused any evidence of the commission of that offence to
disappear; or
2. gave any information respecting that offence which he/she
F
knew or believed to be false;
d. That he did so as aforesaid with the intention of screening the
offender from legal punishment.
........ Therefore, to make an accessory ex post facto, the
first requisite is that the accused should know about the crime G
committed. In the next place, he must receive, relieve, comfort,
or assist him and generally any assistance whatever given to
an offender to hinder his being apprehended, tried or suffering
punishment, makes the assister an accessory. What Section 201
ofIPC requires is that the accused must have had the intention
H
838 SUPREME COURT REPORTS [2017) 7 S.C.R.
A 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 ofintention
as distinct from a mere likelihood."
B 19. Criminal trial can never be a fanciful flight of imagination.
While considering the charge under Section 20 I ofI.P.C, it is mandatory
for the prosecution to prove that the accused actively participated in the
matter of disappearance of evidence and with an intention to screen the
offender. To convict the accused for the offence punishable under Section
201 ofl.P.C, it is necessary that all the ingredients are satisfied pointing
c out at the guilt of the accused and a mere suspicion is not sufficient.
Accused can never be convicted on the basis of probabilities or on
assumptions and presumptions. In the light of the above, it has to be
examined whether the appellant has committed the offence punishable
under Section 201 ofl.P.C.
D 20. The appellant is before this Court questioning the conviction
imposed by the trial court which was confirmed by the High Court on
one hand and on the other hand, she is aggrieved by the order passed by
the High Court in enhancing the sentence from 2 years to 7 years.
Having gone through the judgment passed by the trial court and
E specifically the reasoning given by the Court for convicting the appellant/
accused No.2, admittedly, accused No.2/appellant was charged for the
offences punishable under Sections 302, 120(B) and 201 ofl.P.C. read
with Section 511 ofl.P.C The trial court has acquitted accused No.2/
appellant on all other charges but convicted for the offence under Section
201 ofl.P.C Here, for better appreciation of the issues involved in the
F case, I would like to extract the relevant portion of the findings of the
trial court, which read as under:
"I am unable to hold accused No.2 guilty for the offence of
murder for the act done by accused No. I of committing the murder
of the deceased. It is true that her silence may be due to fear and
G one can understand that said fear in the mind of the lady who has
seen her husband being attacked with knives as seen in helpless
condition and she had a mind to save herself and her children
from further attack ...... So, I am aware of the fact that this silence
on the part of accused No.2 may suggest that accused No.2 is
H also one of the conspirators ..... ..
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 839
[N. V. RAMANA, J.]
...... she has declared her desire to have a divorce. So, she has A
no mind to murder her husband at any point of time. So, these
two circumstances lead me to not to hold accused No.2 as one of
the conspirators of the conspiracy to commit the murder of the
deceased .
. . .. subsequent conduct of accused are sufficient to prove her guilt. B
Accused No.2 can be held for abetting the offence of disappearing
the evidence of offence committed by them .
.. .. From the above discussed evidence, I am of the view that
prosecution has proved beyond all reasonable doubts that accused
No.I had committed the murder of the deceased by inflicting the c
multiple injuries to the deceased with the help of absconding
accused. I am of the opinion that accused No.2 is not held guilty
for the offence of murder of the deceased. Regarding the
disappearance of the evidence of offence, though there is no
evidence of the participation of accused No.2 in disappearing the
said proof of offence of murder, but by remaining silence, she has D
indirectly abetted the offence of disappearance of evidence of
murder. I reply point is held guilty for the offence of murder and
accused No.2 is held not guilty for the said offence of murder.
I reply point No.4 that both the accused are held guilty for the
offence of sec. 201 IPC." E
21. Looking at the entire findings of the trial court, it is crystal
clear that the court has given a clean chit to the appellant saying that she
is in no way involved in commission of the crime. At para 73 of the
judgment, at one breath a categorical finding was given by the trial court
that there is no evidence of participation of accused No.2 in disappearing F
the said proof of offence of murder, but by remaining silent, she has
indirectly abetted the offence. At another breath the trial court has
observed that either out of fear or for the best reason known to her, she
remained silent and abetted or aided the offence punishable under section
201 ofIPC.
G
22. Admittedly, the whole case of the prosecution is based upon
circumstantial evidence except for the evidence of sole eye witness
Ami. The eye witness, in her statement, has clearly stated that the
appellant was crying and she was pleading accused No. I not to kill her
husband. She further stated in the cross-examination that accused No. I
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840 SUPREME COURT REPORTS [2017) 7 S.C.R.
A told her mother/appellant to keep mum and not to make any trouble as
accused No 1 and the absconding accused will come back. Accused
No.2/appellant reiterated the same in her statement under Section 313
ofCrPC.
23. The relevant portion of the evidence of Ami, eye witness, is
B extracted below:
"I jumped from the cot towards my mummy. I went there
immediately after getting up. My mummy immediately took me
to the drawing room. It is not true that my mother was standing
there silently with Pooja, she was saying "don't beat.. ... don't
C beat. .. "
"Next day morning, when I got up at 7:30 o' clock morning,
Kishorbhai, one more person came out from the bedroom, and
Kishorbhai tried to adore me but I rejected his gesture. At that
time, the person with him did not tell anything. Kishorbhai told my
D mummy to keep mum and not to make any trouble as they were
coming back."
24. The relevant portion of the statement of accused No.2/
appellant under Section 313 CrPC is as m1der:
"It is true. While going Kishore had threatened me that the corpse
E is lying in your house, we are going the entire responsibility will
fall on you, therefore till the time we come back till then remain
quiet, do not do anything."
25. I am unable to accept the finding of the courts below, that by
remaining silent, accused No.2/appellant has indirectly abetted the offence
F of causing disappearance of proof of murder. Remaining silent and
absconding with accused No.I and moving from one place to another
place will not supply the evidence or fill the gap which is necessary to
prove the ingredients under Section 201 ofl.P.C. The trial court, having
specifically observed that accused No.2 has nothing to do with the
G disappearance of evidence and without recording any finding with regard
to motive, has convicted her under Section 201 of l.P.C. In fact the
reasoning given by the trial court makes it clear that court could not give
any reasoning with regard to motive which is the crucial aspect to fasten
the liability on the accused. With regard to the factum of remaining silent
the reason is forthcoming from the evidence of eye witness and the 313
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 841
[N. V. RAMANA, J.]
statement of appellant which was not taken into consideration. In the A
present case the prosecution has miserably failed to prove the same.
26. The Five Judge Bench of this Court in Raghav Prapanna
. Tripathi v. State of U.P., AIR 1963 SC 74, has dealt with Section 201
of I.P.C. and the ingredients to be satisfied for convicting an accused
under Section 201 of I.P.C. The relevant portion of the same is as B
up.der:
"Thus these two appellants have been rightly convicted and their
appeals are dismissed. In regard to the case ofRamanuj Das and
Jai Devi the finding of the High Court is that the dead bodies of
Kamla and her son Madbusudan were not found in the house of c
Ramanuj Das and they must have therefore been removed ; that
an attempt was made to wash out the bloodstains from inside the
rooms and also outside on the roof; that the dead bodies could not
have been removed without the knowledge and active cooperation
ofRamanuj Das and Jai Devi and further that both Ramanuj Das
and Jai Devi absconded. On this basis the conviction of these D
appellants was held by the High Court to be justified. It is true
that the murder was committed in the house ofRamanuj Das and
that there is the evidence to show that the blood inside and outside
the living rooms was washed and an attempt was made to obliterate
any sign of it though it was unsuccessful. It also may be that both E
Ramanuj Das and Jai Devi had knowledge of the removal of the
dead-bodies but whats. 201 requires is causing any evidence of
the commission of the offence to disappear or for giving any
information respecting the offence which a person knows or
believes to be false. In this case there is no evidence of either. It
is not shown that these two appellants caused any evidence to F
disappear. There may be a very strong suspicion that if from the
house dead bodies are removed or blood was washed, person
placed in the position of the appellants must have had a hand in it
but still that remains a suspicion even a strong suspicion at that. It
is true that they were absconding but merely absconding will not G
fill the gap or supply the evidence which is necessary to prove the
ingredients of section 20 l of the Indian Penal Code. In our opinion
the case against Ramanuj Das and Jai Devi has not been made
out. There appeals must therefore be allowed and they be set at
liberty."
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842 SUPREME COURT REPORTS [2017] 7 S.C.R.
A 27. In view of the above discussion, I am of the considered opinion
that the trial court went wrong in convicting the appellant without there
being any finding with regard to the mens rea of the accused as settled
by this Court in several cases. Particularly, when a specific finding is
recorded by the trial court that there is no evidence for convicting the
accused under Section 201 ofI.P.C., it ought not to have convicted her
B
for the same more on assumptions and presumptions. When the appellant
and accused no 1 assailed the order of trial court before the High Court,
the High Court has issued notice under Section 377 of the Criminal
Procedure Code for suo motu enhancement of sentence to the appellant.
The High Court has enhanced the sentence to 7 years by dismissing the
c appeal preferred by the accused. The reasoning given by the High
Court is extracted below:
"Evidence shows that accused travelled by public transport i.e.
AMTC bus. Therefore, in absence of accused No.I for nearly 6-
7 hours in the house, at least she could have informed somebody.
D Moreover, when she was moving in various places, she had ample
opportunities. However, she did not utilize any of these
opportunities. All these clearly involve her actively in the crime in
question along with accused No. I."
.... Thereafter also, she remained silent, went away with the
E accused No. l, stayed at different public places on fictitious names
as husband and wife and absconded for a period of one and half
months. From the aforesaid, her active involvement in the crime
in question indicating conspiracy has been established by the
prosecution. Court below dealt with the same however disbelieved
the theory of conspiracy. Even though we are not satisfied with
F the said reasonings given by the Court below, we are not dealing
with the same as no appeal has been filed in that respect by the
State."
... .It may be noted that accused No.2 was acquitted by the court
below for the charge under Sec. 302 IPC and conviction only
G under Sec. 201 IPC. As stated earlier, since State did not prefer
any appeal against the acquittal for the charge under Sec. 302
IPC, we are not in a position to deal with the said aspect.
.... Though she was knowing fully well that her husband was
brutally murdered by the original accused No. l, she did not inform
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 843
[N. V. RAMANA, J.]
anyone nor filed the complaint. The trial court was therefore A
justified in convicting the accused No.2 for commission of offence
punishable under Sec. 201 IPC and her conviction is hereby upheld .
. . . .It is required to be noted that trial court has improperly evaluated
the evidence on record overlooking not only the object of Sec.
201 but also shocking facts of the case leading to murder of B
deceased by accused No. l and commission of offence under Sec.
201 by accused No.2 and has imposed sentence which is improper
and is a miscarriage of justice. trial court ought have borne in
mind that Sec. 20 I is joined with Sec. 302 ofIPC and should have
awarded sentence accordingly."
c
28. There is no dispute with regard to the fact that let punishment
fit the crime is one of the main objects of sentencing policy. The sentence
should be adequately reasonable, proportionate to the nature of culpability
is a key factor. Sentencing is a matter of discretion of the trial court and
the appellate Court in the normal circumstances will not interfere with
such discretion. But will interfere only when it finds that there is D
miscarriage ofjustice, flagrant abuse of law and where the discretion is
not properly exercised by the sentencing Court. The High Court first
and foremost has to deal with the conviction appeal on its own merits
and once it comes to the conclusion that the trial court was right in
imposing conviction, then it has to delve into the aspect whether the E
punishment was proportionate or not. From the finding of the High
Court that the appellant is involved actively in committing the murder
and the findings with regard to conspiracy and particularly, in observing
that as the State has not preferred any appeal against acquittal it is not in
a position to deal with the same, it appears to us that the High Court in a
prejudiced manner has enhanced the sentence. looking at the entire F
reasoning of the High Court, I find that the findings of the trial court
were not disturbed and infact were upheld by the High Court but it only
differed with the sentencing aspect. The reasoning given by the appellate
court for enhancing the sentence and dismissing the appeals can be a
valid and correct reasoning for convicting the accused under section G
302 or 120b of I.P.C when the state has preferred an appeal against
acquittal. But basing on such reasoning the appellant cannot be convicted
under section 201 ofl.P.C. The ingredients to attract the offence under
section 201 ofl.P.C are altogether different. Her mere silence cannot
give rise to a presumption that she has committed the offence. In the
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844 SUPREME COURT REPORTS [2017) 7 S.C.R.
A instant case both the trial court and the appellate Court, failed to
appreciate the case in its proper perspective, relied more on assumptions
and based on presumptions has convicted the appellant, which is contrary
to the settled law.
29. In view of the foregoing discussion, I hold both issues in favor
B of accused No.2/appellant and against respondent State.
30. Generally, in an appeal against conviction, where concurrent
findings were recorded by both the Courts below, this Court will not
interfere. But, this is a case where both the Courts below, without
satisfying the ingredients of Section 20 l ofI.P.C., have convicted accused
c No.2/appellant rriore on surmises and conjectures, which invited
interference of this court.
31. Pondering over the ongoing discussion, I hold that prosecution
has not been able to prove the guilt of the appellant/accused No.2 for
the offence punishable under Section 201 of I.P.C beyond reasonable
D doubt. It is brought to the notice of this Court that the appellant/accused
No.2 has already undergone the sentence imposed by the trial court. I
set aside the order passed by the High Court in Criminal Appeal No. 833
of 1997 and Crl.M.A. No. 1121 of 1998 in Crl.A. No. 833 of 1997 and
accordingly the appeal stands allowed.
E PRAFULLA C. PANT, J. 1. I have benefit of reading draft
judgment dictated by My Lord Hon'ble Mr. Justice N.V. Ramana whereby
His Lordship has held that the charge of offence punishable under Section
201 of Indian Penal Code (IPC) against the appellant stood not proved,
and conviction recorded against her is liable to be set aside. With great
respect, I humbly differ with the said view for the reasons recorded
F hereunder: -
2. Briefly stated the prosecution story is that the appellant got
married to Mahendrabhai (deceased) in the year 1981 and two daughters
born from the wedlock. The family used to live in Shakuntal Apartments,
Ahmedabad. The deceased was running a Health Club one in Chitranjan
G Society, Naranpura and another in Shakuntal Apartments. PW-3 Pradip
Kamdar (complainant) is the brother of the appellant. Earlier the appellant
along with her family used to live with the complainant, before they
shifted to Shakuntal Apartments. Kishore Thakker (A-1) was employee
in the Health Club run by the deceased. He developed illicit relationship
H with the appellant. When appellant told the complainant that she wanted
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 845
[PRAFULLA C. PANT, J.]
to sever her relations with the deceased, the complainant and his wife A
advised her not to take such step as she had two children from the
wedlock. On this she responded by saying that Kishorebhai (A-1) also
looks after them well. Thereafter, when Mahendrabhai was advised by
the complainant not to allow A-I in his house, he removed A-1 from
service. On 11.12.1994, the appellant along with her husband (deceased) B
and children came to the house of the complainant for lunch and returned
at about 2.30 p.m. The daughters were aged eight years and four years.
The two families used to keep in touch regularly on phone. In the morning
of 12.12.1994, wife of the complainant tried to enquire about the health
of younger daughter of the appellant. But the phone was continuously
engaged. At about 11.30 a.m. when she rang the appellant and enquired C
about her husband (deceased), she (appellant) told her that he had gone
to Naranpura Health Club. Thereafter, the complainant (PW-3) gave a
ring at 3 .00 p.m. The appellant informed that Mahendrabhai (deceased)
had gone to Bombay. This made the complainant suspicious as
Mahendrabhai, whenever went out from Ahmedabad, used to inform
D
him. At about 4.00 p.m., the complainant along with his wife came to
the house of his sister (appellant) and rang the door bell. When they
entered in the house, they saw that younger daughter Pooja was lying
near the dining table in fever. When the complainant asked the appellant
as to the reason for Mahendrabhai to go to Bombay, the appellant gave
explanation that Mahendrabhai had asked her not to disclose his visit to E
Bombay. Since it was 4.00 p.m. and Ami (PW-34), elder daughter of
the appellant was to be brought back from the school, PW-3 asked the
appellant to go and bring the child. Meanwhile, PW-3 found that bath
room of the appellant was locked from inside. Suddenly the door of the
·bath room was opened from inside and Kishore (A-1), who had illicit
F
relations with the appellant, came out, and tried to run away. His shirt
was not buttoned. When he was attempted to be stopped, his shirt dropped
and he ran away with pants only. Thereafter, the complainant entered
inside the bathroom and saw the dead body ofMahendrabhai was in the
pool of blood. The appellant, who was sent to bringAmi (PW-34) did
not return. As such, the ·complainant leaving his wife in the house of the G
appellant, went to the school and brought Ami.
3. Thereafter, the complainant went to Ellisbridge Police Station,
then to Navrangpura Police Station, and gave the First Information Report
(Exh. 22), which was registered as !CR No. 759 of 1994. The police
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846 SUPREME COURT REPORTS [2017] 7 S.C.R.
A came to the house of the appellant, took the dead body into their
possession, prepared the inquest report and the dead body was sent for
post mortem examination. PW-1 Dr. Di lip Manubhai Desai conducted
post mortem examination and prepared the autopsy report (Exh.-17/18).
On completion ofinvestigation, charge sheet was filed against Kishorebhai
B (A-1) and the appellant (A-2) for their trial in respect of offences
punishable under Sections 302, 120B and 201 IPC. The trial court, on
conclusion of trial, convicted A-I under Sections 302 and 201 IPC.
However, the appellant (A-2) was acquitted of the charge under Section
302 IPC, but convicted under Section 201 IPC. A-1 was awarded
imprisonment for life and fine ofRs.5000/- under Section 302 IPC, and
C each one of A-1 and A-2 was sentenced to rigorous imprisonment for
two years and to pay fine ofRs.5000/-, in default of which to undergo
further three months rigorous imprisonment under Section 20 l IPC.
4. The two convicts filed separate appeals (Criminal Appeal No.
831 of 1997 by A-1 and Criminal Appeal No. 833of1997 by A-2) before
D the High Court. The High Court issued notice for enhancement of
sentence as against A-2 only in respect of offence punishable under
Section 20 I IPC. It is relevant to mention here that the State did not file
any appeal against acquittal of A-2 in respect of offence punishable
under Section 302 IPC. After hearing the parties, the appeals of A-1 as
well as of A-2 were dismissed by the High Court, and the sentence of
E A-2 was enhanced to rigorous imprisonment for seven years and to pay
fine of Rs.7,000/-, in default she was directed to undergo rigorous
imprisonment for two years. Aggrieved by said order dated 04.10.2006
passed by the High Court, A-2 is before us in this appeal.
5. Contentions of learned counsel for the parties are already
F mentioned in the judgment by my Lord Hon'ble Mr. Justice N.V. Ramana
and need not be repeated.
6. Perusal of the record shows that in all 48 witnesses were
examined by the prosecution.
G 7. PW-I Dr. Dilip Manubhai Desai, who conducted post mortem
examination on the dead body of the deceased on 13.12.1994, has proved
homicidal death of the deceased (Mahendrabhai). He has deposed that
there were fifty ante mortem external injuries on the dead body out of
which external injury Nos. 13, 14, 16, 18, 20, 21, 28 and 30 were sufficient
to cause death in the ordinary course ofnature. He further told that the
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 847
[PRAFULLA C. PANT, J.]
injuries were possibly caused by knife. The cause of death reported by A
him was shock and hemorrhage as a result of stab injuries sustained by
the deceased. He has proved his reports Exh. 17/18.
8. PW-3 Pradip Kamdar (complainant), who is brother of the
appellant, has narrated the entire prosecution story, as mentioned above.
For brevity, the same is not being repeated. B
9. PW-34 Ami is the elder (minor) daughter of the appellant. She
has stated that her father used to run Health Clubs in Naranpura and
Shakuntal Apartments. Ki shore (A-1) used to work in the Health Club,
who was removed from service before Diwali. She further told that in
the fateful night (ll'h and 12'h December, 1994) she woke up when the c
bed was pushed. She saw two persons - Kishore and one lean person
beating her father. (The said lean person is still reported to be absconding)
She further told that her mother was standing near the door with Pooja
(younger daughter of the appellant). She further stated that when she
started crying, she was taken by her mother to drawing room. She
further told that thereafter she did not know as to what had happened, D
and when in the morning she got up, she saw Kishore (A-1) and his
associate leaving the room. She further stated that next morning her
mother told her to take bath in the bathroom attached to another room.
She stated that she was studying in Vandana School. She has also
corroborated the fact in the cross-examination that her maternal uncle E
(complainant) came to receive her in the school.
10. The statement of PW-3 Pradip Kamdar gets corroborated not
only from the statement of PW-34 Ami, but also from the statement of
PW-23 Minaben Deepakbhai Desai. This witness has stated that on
12.12.1994 when she was bringing her son from Vandana School to her F
home, she met the appellant near Vandana School. She also saw that
Kishore (A-1) came in an autorikshaw. There was no clothe on his
upper part of the body andhe was only in pants. He asked her (PW-23)
to call Padmini (appellant). She called her and Padmirii went in
autorikshaw with Kish ore (A-1 ).
G
11. PW-7 Yogesh Pannalal has deposed that on 12.12.1994 between
4.00 and' 5.00 p.m. a man barefooted and without any clothe on the
upper part of the body came in his shop with a lady. They asked for a T-
shirt and purchased a jersey. The lady paid for it. This witness has
identified A-1 as the man who came barefoot and without clothe on the
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848 SUPREME COURT REPORTS [2017] 7 S.C.R.
A upper part of the body and A-2 as the lady who paid the money.
12. PW-6 Navabahamad Rafiyuddin Shaikh further corroborates
the story by deposing that he was running a shoe shop and on 12. I 2.1 994
at about 6.00 p.m. a person barefoot came to his shop along with a lady
and purchased chappal for Rs.45/- and the lady paid the money.
B 13. Subsequent to the incident as to how A-1 and A-2 absconded
and lived together that too has come on record in the testimony of PW-
19, PW-28, PW-32, PW-39 and PW-40. PW-19 Kanubhai Somabhai
Valand has stated that he is Manager ofNayisamaj Dharamshala and
he told thatA-1 andA-2 lived in the Dharamshala (with fictitious names).
c PW-28 lbrahimbhai Nasirbhai who is owner of Dreamland Hotel, PW-
32 Suryakant Chamanlal, PW-39 Ramaji Rupsing, Manager ofDadavadi
Gurumandir Dharamshala, PW-40 Jagdishkumar Amrutlal Soni, Manager
of Shree Parshwanath Bhaktivihar Jain Trust Dharamshala, have also
given the similar statements regarding above fact for different dates as
to how A-1 and A-2 lived in Dharamshalas and Hotel with fictitious
D names. They identified both the accused in the court. The two accused
lived together in the above manner from 12.12.1994 till 23.01.1995, before
they were arrested.
14. It has also come on record in the evidence of police witnesses
that after commission of murder the bed room was found cleaned and
E body of the deceased was found concealed in the bathroom in an attempt
to cut and dispose of the same in pieces for which needle, jute thread,
plastic bags, iron blade, etc. were collected from the house. It has also
come on record that around noon A-1 was allowed by A-2 to go out to
get his hand bandaged. In this connection PW-4 Dr. Rajendra Hiralal
F Shah has adduced the evidence relating to bandaging and proved the
relevant entries.
15. In the light of the circumstances, from the evidence on record,
in my opinion it is clearly established that by making false statement by
appellant to her own brother PW-3 (complainant) as to whereabouts of
G the deceased, and not allowing PW-34 Ami to use the bathroom attached
to the bedroom (where dead body was concealed), the appellant has
given false information to screen offender (A-1). As such, she was
rightly held guilty by the courts below in respect of charge of offence
punishable under Section 201 IPC. Some observations of the trial court
against its own finding as to guilt ofA-2 are not relevant for the decision
H
PADMINI MAHENDRABHAI GADDA v. STATE OF GUJARAT 849
of this court, particularly when judgment of the trial court stands merged A
in the judgment of the High Court which is impugned before us and, as
such, the appellant cannot be acquitted from the charge of offence
punishable under Section 20 I IPC. I agree with the principle of law laid
down by this Court, as referred to by my Lord Hon'ble Mr. Justice N.V.
Ramana, but finally in each case the facts and evidence of that particular B
case are to be seen to come to the conclusion as to whether the ingredients
of a particular offence have been made out or not.
16. For the reasons, as discussed above, I find no error oflaw in
the orders passed by the courts below in concluding that the appellant
Padmini is guilty of the charge of offence punishable under Section 201
IPC. However, as to the sentence, the High Court has awarded the c
maximum sentence to A-2 (appellant). Learned counsel for the appellant
pointed out from the record that the appellant has already served more
than two years' imprisonment during the period of trial/appeal. She is
sixty years old, and twenty three years have passed from the date of
incident. In these circumstances, I am of the view that since the sentence D
under Section 201 IPC awarded to A-1 has attained the finality in respect
of the same charge, as such, it would not be justified to award A-2 the
enhanced sentence as directed by the High Court, particularly considering
her role in respect of said charge, compared to that of A-1.
17. Therefore, the appeal is partly allowed. The conviction recorded E
by the courts below against the appellant in respect of offence punishable
under Section 201 IPC is upheld but the sentence awarded by the High
Court is reduced to two years rigorous imprisonment with fine, as recorded
by the trial court.
ORDER F
1. In view of the disagreement between us, the Registry
is directed to place this matter before the Hon'ble Chief Justice
of India to constitute an appropriate bench for disposal of the
matter.
G
Nidhi Jain Mnttcr referred to larger bench.
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