Nitin @ Nilesh Khekade & Anr. vs The State Of Maharashtra

(Per : Nandesh S. Deshpande, J.)

Heard. Admit. Heard finally by consent of learned counsel appearing for the parties.

Both these appeals challenged the judgment and order of conviction passed by the 3^rd Ad-hoc Sessions Judge, Amravati, in Sessions Trial No.52/2003. Vide Criminal Appeal No.251/2006 is by the original accused challenging their conviction, Criminal Appeal No.58/2008 is by the State for enhancement of sentence.

During the pendency of both these appeals, the appellant No.1 in Appeal No.251/2006, namely, Nitin alias Nilesh Mohanrao Khekade expired, who happens to be respondent No.1 in Criminal Appeal No.58/2008. Accordingly, a death certificate is filed on record along with Pursis. In view of this, Criminal Appeal No.251/2006 stood abated against appellant No.1 and Criminal Appeal No.58/2008 stood abated as far as respondent No.1 is concerned. However, the appeal continued as far as appellant No.2 in Criminal Appeal No.251/2006 and respondent No.2 in Criminal Appeal No.58/2006. All these facts were recorded by us in our order dated 8^th October, 2025. In view of these facts, both the appeals are taken up for adjudication by way of this common judgment since as already stated above the impugned judgment in both these appeals is one and the same.

The original accused i.e. appellant in Criminal Appeal No.251/2006 and respondent in Criminal Appeal No.58/2008 (hereinafter referred to as the accused) stood prosecuted for the offences punishable under Sections 363, 364, 302 and 201 read with Section 34 of the Indian Penal Code.

The prosecution case as unfolded from the papers is as under :

The complainant Murlidhar Gangaramji Doijad is a Police Constable and serving in Police Station Frezarpura, Amravati. Initially, at about 10.30 a.m. on 7.8.2002, the complainant intimated to the Police Station Officer, Frezarpura, Amravati about missing of his son Nayan alias Varun, who was aged about 18 months, from his quarter and he lodged a report vide Exh.-44 regarding kidnapping of his son against some unknown persons. Offence vide Crime No.191/2002 was registered for the offence punishable under Section 363 of the Indian Penal Code and the matter was investigated. In the investigation it was found that the accused No.1 has kidnapped and murdered the said Nayan while rest of the accused caused disappearance of evidence with an intention to screen the real offender i.e. accused No.1 from legal punishment. The accused were thereafter charge-sheeted by the Judicial Magistrate, First Class, Court No.5, Amravati and the case was committed to the Court of Sessions, Amravati.

Thereafter, charge vide Exh.-14 for the offences punishable under Sections 363, 364, 201 and 302 of the Indian Penal Code were framed against the accused and the said charges were explained to them. Since they pleaded not guilty, they were tried in accordance with law. The defence of the accused persons is of total denial. The trial Court i.e. 3^rd Ad-hoc Additional Sessions Judge, Amravati after scanning the entire evidence on record vide its Judgment dated 26.4.2006 convicted the accused No.1 Nitin alias Nilesh s/o. Mohanrao Khekade for the offence punishable under Sections 363, 201 and 304(ii) of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years each for the first two offences and rigorous imprisonment for five years and to pay fine of Rs.500/- for the offence punishable under Sections 304, Part-II of the Indian Penal Code. The trial Court convicted the accused No.2 Suresh for the offence under Section 201 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs.2,000/-. The accused No.3 was acquitted of all the offences. It is this judgment which is challenged in the present appeal by the accused persons as also by the State in these appeals as stated above.

We have heard Mr. Anil Mardikar, learned Senior Advocate for the appellant and Mr. Nikhil Joshi, learned Additional Public Prosecutor for the respondent/State.

Mr. Anil Mardikar, learned Senior Advocate for the appellant i.e. original accused submits that the trial Court has wrongly come to the conclusion that the respondent No.2 i.e. original accused has committed an offence punishable under Section 201 of the Indian Penal Code. He further submits that the medical evidence and circumstances clearly indicated that the accused persons have not committed any offence as sought to be done.

Learned Additional Public Prosecutor appearing for the appellant in Criminal Appeal No.58/2008 submits that the learned trial Court while acquitting the accused under Section 302 has committed an error and on the basis of evidence on record ought to have convicted them. Learned A.P.P. further submits that the judgment of acquittal of the accused No.3 from all the offences and acquittal of accused No.1 and 2 for offences under Section 302 is based on grave misinterpretation of law and, therefore, this is a fit case for enhancement.

We have given our anxious consideration to the contentions advanced by the learned counsels as stated above. As we have recorded earlier that the accused No.1 Nitin has already expired and therefore now what remains is regarding the conviction of accused No.2 for the offence punishable under Section 201 of the Indian Penal Code. We are, therefore, not discussing the evidence as far as accused No.1 is concerned as the appeal/s against him has stand already abated in view of this death.

As can be seen from the judgment impugned, the proved circumstances against the accused No.2 are as under :

Section 201 of the Indian Penal Code can be read as under ;

Thus, intent to screen the offender from legal punishment is essential. Such intention exists or is presumed to exist in the mind of the accused when he has some interest in the person who committed the main offence. Though identity of a person who committed the main offence is not established in evidence, there must be material to indicate that the accused knew who is the main offender and when the accused did the act of causing disappearance of evidence or giving false information regarding the offence. The intention to screen the offender must be the primary and sole object of the accused. Mere fact that concealment was rightly to have that effect is not sufficient. Mere suspicion would also not be sufficient. There must be available on record cogent evidence that the accused has caused the evidence to disappear in order to screen another known or unknown. The foremost necessity is that, the accused must have knowledge or have reason to believe that such an offence has been committed.

The observations of the Hon'ble Apex Court in the cases of Palvinder Kour vs. State of Punjab, reported in AIR 1952 SC 354 and Roshan Lal vs. State of Punjab, reported in AIR 1965 SC are relevant, which are as follows :

It has come in evidence of PW 1 Murlidhar that original accused Nos.2 and 3 were present in the Police Station and told that previously the quarter in question was occupied by one Raju Kukde, who always used to threat them i.e. accused Nos.2 and 3 that he will kidnap their kid and there is every possibility that his son might have kidnapped by said Raju Kukde presuming their son. Furthermore, it is an admitted fact on record that the accused No.2 herein has refused to sign seizure panchanama of rope which is at Exh.-35. Furthermore, it has come in evidence of PW 4 Rima, who is mother of the deceased that the original accused No.2 was being confronted that Nitin had not assisted her in search of Nayan. He replied that Nitin was busy in needing tough in the house. The accused No.2 further told PW 4 that in spite of salary of both the persons, they are short of funds. However, it is also come on record that on the day of incident accused Nos.2 and 3 had already gone to the Police Station Frezarpura, as they were working as Police Constable there. Even though it has in the evidence of PW 10, who is the Investigating Officer at the time of arrest of the accused No.1, other accused were absconding, it by itself cannot be a incriminating evidence so as to implicate the accused for offence punishable under Section 201 of the Civil Procedure Code. As can be seen from the Japti Panchanama at Exh.-35 accused No.2 has refused to sign the said panchanama. Even the said fact cannot be a pointer to the fact that he is guilty of offence punishable under Section 201 of the Criminal Procedure Code which would require the ingredients as mentioned above.

Thus, if the evidence brought on record by the prosecution is concerned, and is appreciated, the annoyance of the accused who himself is in Police Department at the time of seeking Police custody remand of the accused No.1 cannot by any stretch of imagination be within the domain of Section 201 as it would not amount to causing disappearance of evidence of offence or giving false information to screen offender as has been contemplated by this Section. Mere annoyance could not give rise to a criminal offence. Furthermore, the refusal of the accused No.2 to sign the seizure panchanama of rope at Exh.-35 may at the most be a pointer to the fact of his omission to perform his duty but cannot be an aspect which would implicate him for an offence punishable under Section 201. Furthermore, there is nothing on record to show that the accused No.2 prevented the accused No.1 to disclose anything in respect of offence. Similarly, only because he was absconding after the registration of the offence against him cannot be an aspect which would lead to the inference that the accused has committed offence as punishable under Section 201 of the Indian Penal Code. Thus, the various aspects as enumerated by the trial court and re-produced supra cannot be helpful for the prosecution to bring home the charge for offence punishable under Section 201 of the Indian Penal Code as far as accused No.2 is concerned.

Thus, in view of the ingredients mentioned above, no offence as punishable under Section 201 of the Indian Penal Code is made out against the accused.

Thus, for the reasons stated above, Criminal Appeal No.58/2008 filed by the State for enhancement of sentence is also meritless as far as accused No.2 is concerned, who was convicted for the offence punishable under Section 201 of the Indian Penal Code.

In that view of the matter, we pass following order ;