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Criminal Appeal No. 285 of 1965, decided on 19th February 1968.

, S. 201‑Cauving disappearance of evidence of offence‑Person knowing or having reason to believe that murder had been committed removing dead body from place of occurrence to another place‑Such person, held, causes disappearance of important piece of evidence concerning venue of murder‑Proposition that mere carrying of dead body in absence of anything to show physical attempt to conceal same is not enough to attract mischief' of S. .20l ‑‑‑Disapproved.

The Court did not agree with the broad proposition that mere carrying of the dead body in the absence of anything to show that a physical attempt was made to conceal the same is not enough to attract the mischief of section 201 of the Penal Code. If a murder be committed at place "A" and the dead body be removed from there to another place by a person who knew or had reason to believe that a murder had been committed certainly he causes the disappearance of an evidence of the commission of murder inasmuch as he has caused to disappear a very important piece of evidence concerning the venue of murder. Such removal of the body is very likely to react against the entire prosecution case.

State v. Basirullah P L D 1964 Dacca 710 and Nagendra Bhakta v. Emperor 37 C W N 348 distinguished.

Emperor v. Autar I L R 47 All. 306 rel.

Abu Hussain Sarkar, Akram Hussain Amin and Mahitur Rahman Chowdhury for Appellants.

Md. Shehabullah for the State.

Dates of hearing: 15th and 16th February 1968.

‑The five appellants before us have been convicted under section 201 read with section 34 of the Pakistan Penal Code and each of them has been sentenced there under to suffer rigorous imprisonment for four years.

The trial was held by the Additional Sessions Judge of Mymensingh with the aid of four Assessors but it was actually concluded with three Assessors. The Assessors have given a varied opinion about the appellants. .

Prosecution case may briefly be stated as follows: ‑On the morning of Friday, the 4th September 1964, at about 11 O'clock while P. Ws. Abu Bakar and Asgar Ali and their elder brother Hashmat Ali were transplanting paddy seedlings on their lands. Appellant No. 1 Hashu approached Hashmat Ali, who was the muazzin of the local mosque, to accompany the former to his house for the purpose of slaughtering a cock. Hashmat agreed to this, and accompanied Hashu. While Hashmat was proceeding along with Hashu they were noticed by P. W. 10 Makbul Hossain alias Kali (he has been named in the first information report) on a District Council Road, and on enquiry Hashmat said that he was going to Hashu's house to slaughter a cock. As Hashmat did not return to the field after the Juma prayer, his two brothers P. Ws. Abu Bakar and Aagar Ali got anxious, and one of them, namely; Abu Bakar went to the house of appellant Hashu, who lived close to their field, and asked him about the where about of Hashmat. Hashu replied that Hashmat had gone to his father‑in‑law's house: P. W. Abu Bakar then went to Hashmat's father‑in‑law's house and on enquiry learnt that Hashmat had not gone there. Abu Bakar then returned home and told some of the witnesses about the missing of his brother Hashmat, and that although he had been told by Hashu that Hashmat had gone to his father‑in‑law's house, on enquiry it was found that the information was not true. The relations of Hashmat got very anxious for Hashmat and they started searching him. A Search party consisting of prosecution witnesses Abu Bakar, Nekbar Munshi, and uncle of the deceased, Shamsul Hoque, a cousin of P. W. Abu Bakar, Abed Ali and Abdus Samad another cousin of the deceased went out in the evening and while they were proceeding along a field from East to West near the field of P. Ws. Abu Bakar and Asgar Ali they heard the sound of foot‑steps coming from the West. This was at about 8 or 9 p. m. The members constituting the search party concealed themselves near a bush and when two of them, namely, P. Ws. Abu Bakar and Abed Ali focussed their torches they saw the appellants carrying a dead body. As soon as the miscreants saw the members of the search party they threw the body on the field of the deceased and his brothers, and ran away. The witnesses approached the body and found it to be that of Hashmat. They saw an incised wound on the right side of the head near the ear of Hashmat and also a swelling on his throat. At the alarm created by the search party, witnesses came and saw the dead body of Hashmat lying on the field and they were told that the body had been carried and thrown there by the appellants. Next day a first informa tion report was lodged at I p. m. at Jamalpur Police Station, 18 miles away from the place of occurrence. At the conclusion of the usual police investigations a charge‑sheet was submitted against the five appellants and one Babar Ali under section 302 of the Pakistan Penal Code. This was followed by a preliminary enquiry by a First Class Magistrate under Chapter XVIII of the Code of Criminal Procedure and as a result thereof only the five appellants before us were committed to the Court of Sessions to stand trial under section 302 of the Pakistan Penal Code. The said accused Babar Ali was discharged by the committing Court. At the trial before the Court of Sessions, the appellants were charged under section 302/109 as well as under section 201 read with section 34 of the Pakistan Penal Code. The trial resulted in the conviction of the appellants under section 201 read with section 34 of the Penal Code alone. The appellants were acquitted of the charge under section 302/109 of the Code.

On a careful examination of the evidence we have found no reason to doubt the truth of the prosecution case. As regards the first part of the prosecution case, namely, Hashmat (deceased) was called away by appellant Hashu for the purpose of slaughter ing a cock. It has been amply proved by the evidence of P. W. 1 Abu Bakar, P. W. 2 Asgar Ali and P. W. l1 Abdur Rashid alias Reahan. Their evidence on this point has been corroborated by the evidence of P. Ws. Shamsul Hoque, Abed Ali, Abdus Samad

and Makbul Hussain alias Kalu. The last mentioned witness, namely, P. W. 10 Makbul Hossain alias Kalu saw Hashmat and appellant Hashu going towards west by the District Council Road. On enquiry the witness was told by Hashmat that he was going to Hashu's house to slaughter a cock, Although all the witnesses for prosecution except P. W. 10. Makbul Hossain alias Kalu are related to the deceased, they were the persons who happened to be present on the occasion and as such were the most natural and competent witnesses to this part of the occurrence. P.W.10 Makbul Hussain alias Kalu, however, is not related and there appears no reason why he should depose falsely against the appellants.

The second part of the prosecution case, namely, the appel lants were seen carrying the dead body of Hashmat the same day at about 8 or 9 p.m. rests upon the evidence of prosecution witnesses Abu Bakar, Nekbar Munshi, Shamsul Hoque, Abed Ali and Abdus Samad. It is the consistent evidence of these witnesses that when they heard the foot‑steps coming towards them they concealed themselves near a bush and saw the appellants carrying the dead body of Hashmat in the light of the torches focussed by P. W. 1 Abu Bakar and P. W. 8 Abed Ali. Their evidence have been corroborated by three other witnesses, namely, P. W. Asgar Ali, .P. W. 10 Makbul Hussain alias Kalu and P. W. 11 Abdur Rashid alias Reshan, and by the fact that the dead body of Hashmat was found at the place where it had been thrown. The seizure of the two torches, in the light of which the appellants were seen throwing the dead body on the field, is another circumstance, which corroborates this part of the prosecution case. There is no suggestion to any one of these witnesses that he was not present there. We have carefully examined the evidence of these witnesses and we have no reason to disbelieve them, as they appear to be the most competent witnesses in the facts and circumstances of the case.

The evidence shows that some independent and disinterested persons arrived at the place shortly after the dead body of Hashmat had been thrown there but they were not examined. 'These persons did not see any part of the occurrence and their non‑examination furnishes no justification for drawing any adverse inference against the prosecution case.

For the reasons stated above, we agree with the findings of the learned Additional Sessions Judge that the prosecution case has been fully proved.

It has been strenuously contended on behalf of the appellants that the mere circumstance that the appellants were found carrying the dead body of Hashmat, does not establish any charge against them under section 201 read with section 34 of the Pakistan Penal Code. In support of this contention a decision of this Court in the case of the State v. Bashirullah P L D 1964 Dacca 710 has been cited. The case under report was a reference under section 374 o the Code of Criminal Procedure and an appeal from the order of conviction and sentences under sections 302 read with 34 as well as under section 201 of the Pakistan Penal Code. On a considera tion of the evidence in the case the learned Judges constituting the Division Bench were unable to accept the prosecution case in regard to the charge under section 302 read with 34 of the Pakistan Penal Code. As regards the conviction under section 201 read with section 511 of the Penal Code, the learned Deputy Legal Remembrancer had frankly conceded that the evidence in the case was insufficient to found a conviction on that charge. The sum and substance of the evidence on this point was that tile body of the deceased was carried to some distance within full view of the witnesses who had gone to the place where it was found.

The Court held that removal of the corpse of a murdered man from the place of occurrence to another place did not, of itself, amount to causing disappearance of evidence within the meaning of section 201 of the Pakistan Penal Code. For this proposition the Court relied on the case of Nagendra Bhakta v. Emperor 37 C W N 348. which was a trial held by the aid of a Jury. In that case while the accused acquitted of the charge under section 302/120‑B of the Penal Code, they were convicted under section 201 of the Code. In the facts and circumstances of the case it was held that the mere fact that the corpse of the deceased was removed from the place where he was murdered to a mosque did not make out any charge under section 201 of the Code inasmuch as it was not impossible to conceive of the commission of an offence apart from where and when and by whom it was committed, and as this aspect of the case had not been placed before the Jury it was held that the conviction was illegal on account of this misdirection.

The facts of the two cases mentioned above do not appear to be on all fours with the facts of the case before us. In the present case at least one of the appellants, namely, Hashu had decoyed Hashmat (deceased) in the morning on a false pretext that the latter was required to slaughter a cock. As Hashmat did not return after he had been thus taken away, his brothers got anxious, and one of theta approached Hashmat and the latter tried to put him off the scent by saying that Hashmat had gone to his father‑in‑law's house. On enquiry at the father‑in‑law's house it was discovered that he had never been there. Hashu was again approached a second time and he gave the same answer. That very night Hashu along with the appellants and some other persons were seen carrying the dead body of Hashmat in very suspicious circumstances. As soon as the culprits found that they had been noticed by some people in the light of torches they hastily threw the dead body and made good their escape 1n these facts and circumstances there could be only one inference, namely that the culprits were causing an evidence of the commission of some offence to disappear with the intention of screening the offender from legal punishment. It would be convenient at this stage to quote section 201 of the Penal Code, The section is as follows:-

"201. 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 offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, 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 term which may extend to seven years, and shall also be liable to fine;

and if the offence is punishable with transportation for life or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

and if the offence is punishable with imprisonment for any term not extending 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 provided for the offence, or with fine, or with both."

It is evident from the language of the section that the essence of the offence is to cause "any evidence of the commission of that offence to disappear" with the intention of screening the offender from legal punishment. It is true that in the absence of any medical evidence regarding the cause of death of Hashmat it is difficult to say affirmatively that Hashmat has been murdered, and that may be one of the reasons why the charge under section 302/109 of the Pakistan Penal Code could not be proved against the appellants. The facts and circumstances, however, were such as to furnish a reasonable basis for the inference that culprits who were found carrying the dead body of Hashmat knew or had reason to believe that Hashmat had been murdered, This inference has been supported by the consistent evidence of all the witnesses that they had seen one incised injury on the head of deceased Hashmat and one swelling on his throat. P. W. 12 the Sub‑Inspector of Police who held inquest over body in fact saw two bleeding injuries on the head. It is, however, curious that the doctor did not notice any such injury. In these circumstances, we find that the charge under section 201 read with section 34 of the Pakistan Penal Code has been fully established against the culprits who were seen carrying the dead body of Hashmat.

So far as the proposition of law laid down in P D L 196.1 Dacca 710 is concerned we find ourselves unable to agree with the broad proposition laid down there, namely, mere carrying of the dead body in the absence of anything to show that a physical attempt was made to conceal the same is not enough to attract the mischief of section 201 of the Penal Code. If a murder be committed at place "A" and the dead body be removed from there to another place by a person who knew or had reason to believe that a murder had been committed certainly .he causes the disappearance of an evidence of the commission of murder inasmuch as he has caused to disappear a very important piece of evidence concerning the venue of murder. Such removal of the body is very likely to react against the entire prosecution case. Our view finds support from the case of Emperor v. Autar, I L R 47 All. 306 (Walsh and Sulaiman, JJ.) Walsh, J. has observed as follows:

"The ordinary inference to be drawn from the conduct of persons who have been concerned, in a murder in a house, and who have removed the body to another place, is that they do so with the intention of causing at any rate the true evidence about the locality in which the murder took place to disappear, and in most cases with the object of screening the occupier of the house, and on this point we agree with the view submitted to us by the Government Advocate."

Sulaiman, J. another member of the Bench has observed as follows: ‑

"I should like to add that in order to hold that an offence under section 201 of the Indian Penal Code has been committed it is necessary to find that I L R 47 All. 306 the accused, knowing or having reason to believe that an offence has been committed, (2) caused any evidence of the commission of that offence to disappear, (3) with the intention of screening the offender from legal punishment.

Believing his confession, there can be no doubt that he was fully aware of the offence of murder having been committed by his masters.

When a dead body is discovered in a house there is a strong circumstantial evidence connecting the owners of the house with the murder. Removal of the body from the house to a distant place does, in my opinion, amount to causing an evidence of the commission of that offence to disappear. I agree that section cannot be confined to the destruction of the evidence of the murder itself. The words "any evidence of the commission of that offence" clearly include any evidence of the commission by the offender of that offence.

When help is offered in removing a body from a house, it must be presumed that the intention is to screen the murder from punishment."

We are in respectful agreement with the observations of the learned Judges quoted above.

There remains the question of identity of the persons who were seen carrying the dead body of Hashmat. It appears that the name of appellant Amjad alias Amjad Hussain was never mentioned in the first information report lodged by P. W. 1 Abu Bakar, nor was it mentioned by him in his evidence at trial. Amjad lived in the Bari of complainant P. W. 1 and if he .was present at the time there was no reason for P. W. 1 not to have noticed his presence... an these circumstances, we think that the appellant Amjad alias Amjad Hussain is entitled to the benefit of doubt and we accordingly give him this benefit.

So far as the other four appellants are concerned, there is ample evidence to show that they are concerned in the offence under section 201 read with 109 of the Pakistan Penal Code.

In the result the appeal of appellant Amjad alias Amjad Hussain is allowed and his conviction and sentence are set aside and he is discharged from his bail bond. We confirm the conviction of appellants Hashu alias Hasu, Hasu alias Hasen alias Hachu, Rahman and Mainuddin. We, however, think that in the facts and circumstances of the case the ends of justice will be sufficiently met if we reduce the sentence of four years' rigorous imprisonment passed on each of them to one of three years' rigorous imprisonment on each. With this modification of sentences the appeal of appellants Hashu alias Hasu, Hasu alias Hasen alias Rachu, Rahman and Mainuddin is dismissed and they are called upon to surrender forthwith to their bail bonds and to serve out the remainder of the sentences now imposed upon them.

‑---I agree.

Appeal dismissed.

Sentence reduced.

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