1. The appellant in this case has been convicted of the offences under Sections 201 and 218, Indian Penal Code, by the Sessions Judge of Kaira and sentenced to undergo rigorous imprisonment for six months on each of the charges, the sentences to run concurrently.
2. The accused was a Head Constable in charge of a Police station at Kathana. On the 24th July last, the Mukhi of Ralaj sent a report to the Police Btation that one Nana Daya had complained of the commission of a theft of his ornaments and clothes. The report was received at noon at Kathana and the accused went to Ralaj to investigate the case.
3. It is admitted that in the course of his investigation he searched the house of Ganesh Ramji, father-in-law of the complainant's daughter, who was suspected of being the thief, found in his house a piece of cloth and a bodice which the complainant said belonged to him. He also found in that search a sum of Rs. 149. It is also admitted that Panchanamas were made of the search and of a comparison of the clothes found with the clothes of the complainant. Accused also admitted that he searched the house where the complainant lived a month ago and made a Panchnama in respect of that search. It is admitted that next morning accused returned to Kathana with the complainant Nana, the suspect Ganesh, and the Mukhi.
4. That same afternoon the Sub-Inspector, while returning to Kathana, met the Mukhi and Nana returning to their village and they complained to him that the complaint of theft had been hushed up by accused No. 1. The Sub-Inspector took the papers of the investigation from accused No. 1 and the papers handed to him by accused No. 1 were statements of Nana, his wife Santok and Bechar and a Fanchanama of property produced by Nana. All these refer to a theft which was supposed to have taken place on the 24th July, but which was immediately ' discovered to have been a mistake. The statements withdraw the complaint, and in the Panchanama the complainant produced some articles which were wrongly supposed to have been stolen from his house.
5. The case for the prosecution is that these are all false writings fabricated on the 25th, and that the papers of the real investigation have been suppressed.
6. Nana says that his complaint was of theft of ornaments and of a sum of Rs. 450 which he had received as the bride price of his daughter when she was married a month ago to the son of Ganesh. He says that this property was stolen from the house of a Bania where he lived a month ago, that he made no complaint at the time as he was a stranger but gave information when he came to suspect Ganesh to have been the offender. Nana and the Mukhi both speak to the search of Ganesh's house, the finding of clothes and the comparison of clothes. Nana says that he was abused that evening by the accused and the next day Nana and the Mukhi speak to the preparation of the false statements and the Panchanama at Kathana on the 25th. They say Santok never went to Kathana at all.
7. The accused's explanation is that immediately on arriving at the village of Ralaj the complaint was withdrawn and he recorded the statement and made the Panchnama as to the properties that were produced. He says that Nana admitted that the complaint he made to the Mukhi was a mistake and that he found the articles had been shifted by his wife from the place where he had put them. All that refers to a supposed theft on the 24th July. Subsequently the accused says he got information of a theft a month previous in the Bania's house where Nana was then living. He says he searched that house of Nana, he searched the house of Ganesh, found clothes and rupees, compared clothes with clothes belonging to Nana in Nana's house. He says that after doing this he came the next day to Kathana with Nana, Ganesh, and the Mukhi in order to take advice of the Sub-Inspector as to what he should do next, but that the latter took the papers from him.
8. This explanation involves two sets of police papers: first, the papers of the investigation of a theft of the 24th which was withdrawn; secondly, papers of the investigation of a theft which occurred a month before and which was under investigation.
9. The question then arises, where are the latter set of papers? The accused says that he gave these papers also to the Sub-Inspector ' and that the Sub-Inspector who was his enemy suppressed them. But there is no suggestion that the Sub-Inspector tampered with the diary of the accused. The diary of the accused makes no mention of the investigation of the theft which bad occurred a month previously. Acoused's explanation of this is that the A-diary which was taken from him by the Sub-Inspector was incomplete. We agree with the Sessions Judge that this cannot be true for this diary contains a full record of all that accused did on the 24th July. The omission in the diary of any reference to the investigation of the theft a month previous corroborates the Sub-Inspector, and, therefore, we believe that those papers were never given by the accused to him.
10. It is significant that the statement of Santok, the complainant's wife, does not bear her thumb impression, while the other statements do bear the thumb impression of the supposed deponents. If the statement had been made on the 24th it would certainly have borne her thumb impression. This omission corroborates the prosecution story and it shows the statement was written at Kathana on the 25th when Santok was not present.
11. Again, if the complaint was immediately withdrawn and the property produced by the complainant, it is improbable that the Head Constable would have suo motu started an investigation of a different theft of which no one had complained. Who informed him of the previous theft and why is there no statement taken of Nana about this theft ?
12. Again the immediate complaint made by Nana and the Mukhi to the Sub-Inspector makes the truth of the story probable. Nana is a stranger to the village and not likely to embark on a conspiracy to ruin the Head Constable.
13. The witnesses to the Panchnama as to the production of the property and the withdrawal of the complaint by Nana, no doubt, support the Panchnama as they are bound to do. Bat two of them, Moti Jiva and Moti Tapi, repudiated it before the Committing Magistrate. Ganesh, the person suspected by Nana, supports Nana and the Mukhi and he says that he was made to give up the Rs. 149 found in the house by these two Panch witnesses.
14. The Sessions Judge thinks that Nana and the Mukhi have given false evidence as to the substitution of the first report. But Nana is illiterate and the Mukhi is barely literate. Even if they are wrong in saying that Exh. 10 was not the genuine first report, we are by no means satisfied that another first report was not prepared, for the information recorded in the Crime Register, Exhibit 24, tallies not with Exh. 10 but with the panchnama.
15. We have no difficulty in agreeing with the Sessions Judge on facts that Nana did complain that the theft took place a month ago and that the papers of that investigation have been sup-pressed, and that the statements and Fanchnama handed over by the accused to the Sub-Inspector are false.
16. As to the conviction we do not think that the conviction under Section 201 in respect of the suppressed papers can be maintained. These papers are not in themselves evidence of the commission of the theft and we need not inquire whether the accused should not have been charged under Section 204, Indian penal Code.
17. But even as to the conviction under Section 218, the learned pleader for the defence contends that the facts do not constitute an offence under this section unless it is proved that it was Ganeeh who committed the offence. He cites in this connection Emperor v. Gordhandas : (1913)15BOMLR694 . That was a case under Sections 213, 214, Indian Penal Code, and it was there held that these offences were not committed as the person screened had been acquitted of the principal offence which was one of criminal breach of trust. That was a case in which the offence could not have been committed by any one but the person screened and his acquittal involved the conclusion that no offence had been committed. This was the basis of the judgment of Batchelor J. for he says the Magistrate was bound to proceed on the footing that no offence of criminal breach of trust had been proved. The ratio decidendi was that where no principal offence has been committed there can be no conviction of an accessory under Section 213 or 214. These sections like Sections 201 and 203 imply that the offence screened has been committed and not the guilt of the particular person screened. This distinction was, we think, overlooked in Queen-Empress v. Saminatha I.L.R (1890) Mad. 400 and Girish Myte v. Queen-Empress I.L.R (1896) Cal. 420 and the cases there cited, Empress of India v. Abdul Kadir I.L.R (1888) All,279 Queen-Empress v. Fateh Singh I.L.R (1889) All 432 and, Matuki Misser v. Queen-Empress I.L.R (1885) Cal 619 do not require proof of the guilt of the persons screened.
18. Section 218, Indian Penal Code, is much wider and embraces cases other than those in which a principal offender is screened. But even as to such cases the criminal intent is expressed in the following words: 'with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment,' These words, we think, also imply that an offence has been committed. The gist of the section is the stifling of truth and the perversion of the course of justice in oases where an offence has been committed. It is not necessary even to prove the intention to screen any particular person. It is sufficient that he knows it to be likely that justice will not be executed and that some one will escape punishment for the offence. In the case of Empress v. Amiruddeen I.L.R (1878) Cal. 412 Jackson J. at p. 413 says :
This is an offence applying only to public servants, and an act of a certain kind is made punishable as an offence when such act is done knowingly against the direction of the law and with the intention of saving a person from legal punishment, whether the person so intended to be saved from punishment had committed the offence or not.
19. I think this is a correct interpretation of the section. It has been followed by this Court in the case of Queen-Empress v. Krishnaji (1888) Cr. C 405.
20. In this connection the learned pleader further contends that the prosecution should be limited in the case made in the charge that the offence had been committed by Ganesh. But under Section 423, Criminal Procedure Code, the finding may be altered in appeal. This may be done where the alteration involves no new facts and no prejudice to the accused : Lala Ojha v. Queen-Empress I.L.R (1899) Cal 863. The only alteration necessary in the charge is to describe the offence as one supposed to have been committed by Ganesh. It never was the case of the accused that no theft had been committed and the alteration does not prejudice the accused. No doubt we should be satisfied of the fact that a theft had been committed in the house of Nana. But we are so satisfied. Nana had received Rs. 450 for his daughter's marriage a month before. He was a stranger to the village and in spite of his delay in making the complaint we do not believe that the complaint he made was false. It is also obvious that the person whom the accused intended to screen was Ganesh.
21. We, therefore, reverse the conviction under Section 201, Indian Penal Code, and confirm the conviction and sentence under Section 218, Indian Penal Code.
22. I agree that the prosecution has proved that the accused suppressed certain Panchanamas and fabricated an incorrect record of the investigation that had been made. I also agree that the accused has been wrongly charged under Section 201, Indian Penal Code. The expression ' any evidence of the commission of that offence ', I think, clearly refers, not to evidence in the extensive sense in which that word is used in the Indian Evidence Act, but to evidence in its primary sense, as meaning anything that is likely to make the crime evident such Ahvbbkhast as existence of a wounded corpse or of blood stains, fabricated documents, or similar material objects indicating that an offence had been committed. The statements of a witness and Panchanamas do not, in my opinion, constitute such evidence. In this connection I may refer to the case of Emperor v. Naranbhai : (1913)15BOMLR578 where a Police Patil was charged with having torn up a Panchnama which he had made. He was originally Convicted under Sections 201, 202, 204 and 217, Indian Penal Code, but the convictions under Sections 201 and 202 were upset in appeal by the Sessions Judge and only the conviction under Section 217 was maintained. This conviction was in turn upset by this Court, but that was on the special circumstances of that case.
23. As regards Section 218, the charge specifies that the accused acted 'with intent thereby or knowing it to be likely that he would thereby save the said Ganesh from legal punishment.' I am of opinion that that particular charge has been sufficiently sustained by the evidence in the case. We have the fact that Ganeeh's house was searched by the accused, and in it was found the piece of cloth (Article 1) and the bodice (Article 3), that were produced before the Sessions Judge, and also Rs. 149 tied up in a rag. This is admitted by the accused as well as by Ganesh. Ganesh also admits that Articles 1 and 3 did not belong to him, but to Nana and his wife Santok. On the other hand both Nana and Santok say that the rupees that were stolen had been wrapped up in the piece of cloth, Article 1. Similarly, they both say that the bodice (Article 3) was among the stolen property. If that evidence was believed, it directly implicated Ganesh either in the theft or in the offence of receiving stolen property. And what one has to consider is the intention and knowledge of the accused at the time when he acted in the manner alleged by the prosecution. Such intention or knowledge did, in my opinion, extend to that stated in the charge, The accused had reason to think that in the ordinary course, the police investigation would result in Ganesh being tried on a charge either of theft or receiving stolen property; and it was certainly not improbable that the Court might believe the evidence of Nana and Santok and convict Ganeah. I do not consider the possibility that Ganesh might not have been sent up for trial by the Police or that he might have been acquitted, is sufficient to meet the charge. On the evidence forthcoming from accused's investigation, the probability to my mind, which I think was also present to that of the accused, was that Ganesh would be charged and convicted, so that the main object actuating the accused was a desire to save Ganesh from probable legal punishment.
24. Accordingly, I do not think there are sufficient grounds for our interfering with the conviction under Section 218. In the view I take, it is not necessary to consider the question whether it is unnecessary under Section 218 to prove an intention to screen any particular person. That is a point on which I feel some doubt and refrain from expressing a definite conclusion.
25. I, therefore, concur in the order proposed by my learned brother.