1. The Extra Additional Sessions Judge, Surat acquitted the appellant of the charge of having murdered Bai Jamil but he convicted him under Section 201 for having caused the evidence of her murder to disappear with the requisite intention and with the requisite knowledge.
2. The prosecution case was that after the appellant was arrested, he made a statement before the police and panchas that he would discover a scythe and blood-stained clothes which had been concealed in certain fields. According to the prosecution, the scythe was the weapon used for the commission of the offence and the clothes were those of the accused. In view of this evidence, the learned Sessions Judge convicted the appellant under Section 201, I. P. C., although he had acquitted him under Section 302 I. P. C. on the charge of having caused the murder of Bal Jamli.
3. In our opinion, the appeal must be allowed and the conviction must be set aside for the following reasons :
4. The prosecution case is that the appellant had caused the scythe and blood-stained clothes belonging to the appellant to disappear. Section 201 I. P. C. speaks of a person who causes any. evidence of the commission of an offence to disappear. When an offence is committed, there. may be evidence of various types; (1) Evidence to show that the offence had been committed (2) Evidence to show that the offence had been committed at a particular place (3) Evidence to show that the offence had been commuted by a particular person or persons. When Section 201 uses the expression 'whoever causes any evidence, of the commission of that offence to disappear', it refers to a person who causes the evidence of actual commission of the offence to disappear and, not to person who causes the disappearance of evidence as to by whom the offence was committed. As observed by the Bombay High Court in AIR 1921 Bom 115, Anyerkhan Maharnadkhan v. Emperor :
'The expression ''any evidence of the commission of that offence' 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 as the existence of a founded corpse or of blood stains, fabricated documents, or similar material object indicating that an offence had been committed.'
In : AIR1934Cal144 , Nagendra Bhakta v. Emperor it is held that if in a murder case the corpse of the deceased was removed by the accused from a certain house to the verandah of a mosque he cannot be held to have committed an offence under Section 201' because the tact that the corpse was lying in the house was no evidence of the commission! of the murder. It was also observed as follows:
'The offence that was commuted in the present case was an offence of murder and the evidence that 'was caused to disappear was the fact that the corpse was lying at Sarat's house. This fact, namely that the corpse was lying at Sarat's house and at no other place, was no evidence of the commission of the offence of murder. It may be some evidence of where the offence was committed or who had committed it, but it was no evidence of the fact that a murder had been committed. It is not impossible to conceive of the commission of an offence apart from where and when and by whom it was committed.'
In the instant case, the discovery of the scythe and the blood-stained clothes of the accused would, not, therefore, amount to an offence under Section 201. The learned counsel for the Government has, however, referred to AIR 1958 Punj 183 Changer Giani v. State where Tek Chand J. disagreed with the view of Sharif J, in 48 Cri LJ 786 (Lah), Lal Singh v. The Crown and agreed with the view expressed by Teja Singh J. in that case. In that case. Teja Singh J. observed as follows :
'There cannot be the slightest doubt that the weapon with which an offence is committed is a very valuable piece of evidence of its commission. More so when the offence is said to be of murder and the weapon is blood-stained, and if a person conceals that weapon, provided his intention in doing so is to screen the offender, he is, in my opinion, guilty of causing that evidence to disappear etc.'
With, very great respect, we are unable to agree with the view taken in AIR 1958 Pun .183 because evidence of the commission of an offence must be distinguished from the evidence as to by Whom the offence was committed. We agree with the observations of the Bombay High Court in AIR 1921 Bom 115. For these reasons, we hold the even assuming that if was the appellant who had concealed the scythe and his blood stained clothes in the fields, he would not be guilt under Section 201, I. P. C.
5. But even on the question whether it was the appellant who had concealed these articles, the evidence is not satisfactory. Even if we believe the statement alleged to have been made by the appellant, there is no evidence as to who had concealed these articles. No doubt, according to the P. S. I. and the panch Magan, P. W. No. 17, it was the appellant who produced these articles, viz. the scythe and his shirt. Dhoti and an underwear. It is also in evidence that these articles were stained with human blood. That the appellant discovered these articles would show that the appellant knew that the offence had been committed. But on the question whether it was the appellant who had caused these articles to be buried or to be concealed, apart from his alleged statement, there is no other evidence. This is conceded by the learned Government pleader.
6. Now, as regards the statement alleged to have been made by the appellant before the police and the pahehas, panch Magan, P. W. No. 17 has not deposed that the appellant had made any statement. In the Gujarati version of his evidence the panch has stated that :
^^diMka rFkk nkrjMq ts rs.kslfeeka ewdsyka rs] rs jtq djok rS;kj Fk;syka A**
This is not evidence to the effect that the appellant had made a statement. ^^rS;kj Fk;syks**is an, impression created on the witness. That impression may have been created by putting a, question to the appellant. In such a case, it is necessary for the prosecution to prove the actual' statement said to have been made by the appellant. If a complicated question is put to the appellant and the appellant nods, we are not sure whether the nodding refers to the whole statement or to the last portion of the statement. In this case there is no statement on which the prosecution can rely. Even the P. S. I. in his evidence has deposed that the accused volunteered to produce clothes and scythe from the places where he had kept It is difficult to understand the expression Volunteered' as referring to a statement made by the appellant. The impression that the accused had volunteered is an impression said to have been created on the witness. The Court is bound to know what the fact which created that impression. The prosecution has not proved the statement alleged to have been made by the appellant. In these circumstances, there is no evidence to show that it was the appellant who had concealed these articles a* the places where they were found,
7. The leamed counsel for the Government also referred to (S) AIR 1955 SG 104, Ramkrishan Sharma v. State of Bombay, where Their Lordships observed that the Police Investigating Officer may, of course, prove the fact that certain things had been discovered, by an accused person. Such a fact may be proved even without relying on Section 27 of the Evidence Act because when, a Police Investigating Officer proves a fact without proving the statement of the accused, he need not rely on Section 27. The fact of discovery of course, proves knowledge on the part of the person discovering the fact. But mere knowledge of the existence of such a fact is not sufficient to make him guilty under Section 201 I. P. C. To make a person guilty under Section 201 it must be proved that that person had caused the evidence of the commission of the offence to disappear 'and no' merely that that person, knew that some other person had caused the evidence of the commission of the offence to disappear. It must be positively proved that it was the appellant who had caused the evidence of the commission of the offence to disappear and on this question for the reasons already stated, there is no satisfactory evidence.
8. We, therefore allow the appeal and set aside the conviction. The appellant should be set at liberty forthwith in this case.