Judgment:
D.N. Joshi, J.
1. The instant revision petition has been filed against the judgment of the learned Sessions Judge, Sirohi passed on 7th October. 1991 in Sessions case No. 92/84 (81/83), whereby each petitioner has been convicted Under Section 176 I.P.C. and sentenced to 25 days simple imprisonment.
2. It was intimated to the Court by the learned Counsel for the revisionist-petitioners that petitioners Manaram and Ganeshram have died and the photo-stat copies attested by the Notary Public of the death certificates issued by the Registrar, Birth and Death Registration, Gram Panchayat, Peethapura have been placed before the Court. Peethapura. As per certificates, Mana Ram and Ganesha Ram died on 10th December. 1996 and Ganesha Ram died on 2nd July, 1997 respectively. There is no reason to disbelieve the certificates issued by the competent authority and therefore, the proceedings as far as against Manaram and Ganesharam are concerned, are being abated. The Court has to decide the case with reference to the revisionist-petitioner Bheema only.
3. It was argued by the learned Counsel for the revisionist-petitioner that prosecution has not proved the Intentional omission to inform the public servant about the unnatural death of Mst. Panchu. It was further argued that accused Bheema was acquitted by the learned Sessions Judge in Sessions Case No. 42/84 'State v. Bheema' of the charges Under Sections 302 and 204 I.P.C., which were related to the same occurrence. It was further argued that being an accused, the revisionist-petitioner Bheema was not legally bound to inform about the said unnatural death.
4. The learned Counsel for the revisionist-petitioner relied upon the following decisions:
(1) Dora Singh v. Emperor AIR 1933 Lahore P. 515
(2) Bhagwatara v. Emperor AIR 1926 Nagpur P. 217
(3) I.L.R 1976 (2) Calcutta P. 1334
(4) 1954 Cr. L.J. at page 1466.
The learned Public Prosecutor has supported the judgment of the learned trial Court.
5. The facts of the case in brief are that the Station House Officer, Police Station, Mandar filed a complaint-Ex.P/5 in the Court of Munsif and Judicial Magistrate, 1st Class, Sirohi Under Section 176 I.P.C. on 13.9.1982. The case was registered as Criminal Regular No. 405/82 and cognizance was taken Under Sections 176 and 201 I.P.C. against all the accused persons. On 21.11.1983, the learned Magistrate passed an order that as the accused Bheema was committed for trial Under Section 302 IPC and Chunnilal and Ors. committed for trial Under Section 201 I.P.C. to the Court of Sessions, which related to the murder of Mst. Panchu, therefore, offence Under Section 201 I.P.C. being exclusively triable by the Court of Sessions, the accused were committed to the Sessions Court for trial.
6. The learned trial Court on 23rd July, 1985, on an application filed by the learned Counsel for the accused on 29th October, 1984 passed on order to consolidate Sessions case No. 81/83 (92/84) with Sessions Case No. 42/84 'State v. Bheema and Ors.' However, on 9th July, 1991 in S.B. Criminal Misc. Bail Application No. 283/85, this Court ordered that both the cases shall be tried separately.
7. The charge Under Section 176 I.P.C. was framed against the accused Bheema and charges Under Sections 201 and 176 I.P.C. were framed against the remaining accused persons.
8. To prove the charge, six witnesses were examined on behalf of the prosecution. The statements of the accused persons were recorded Under Section 313 Cr.P.C. The accused persons did not enter defence. After hearing arguments, the learned trial Court vide impugned judgment committed accused Bheema, Ganesharam and Manaram for the charge Under Section 176 I.P.C. and the rest of the accused persons except Manaram and Ganesharam were acquitted of the charges Under Sections 176 and 201 I.P.C.
9. The sum and substance of the judgment of the learned trial Court is that Mst. Panchu was not murdered but committed suicide and therefore, the death was unnatural and the accused-persons were legally bound to inform to the public servant concerned about it Under Section 40(1)(d) of the Code of Criminal Procedure and they intentionally omitted to inform and therefore, committed an offence Under Section 176 I.P.C. As stated in the earlier part of the judgment, two of the revisionist-petitioners have died and the Court is concerned with the conviction and sentence of the accused-petitioner Bheema only.
10. Sections 39 and 40 Cr. P.C. and Section 176 of I.P.C. as far as it relate to the present case are extracted as follows
39. Public to give information of certain offences.-(1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable Under any of the following Sees, of the Indian Penal Code (45 of 1860)
(i) xxx .... xxxxx
(ii) xxxx .... xxxx
(iii) xxx .... xxx
(iv) xxx .... xxxx
(v) Sections 302, 303 and 304 (that is to say, offences affecting life);
(vi) xxx .... xxxx
shall, in the absence of any reasonable excuse, the burden of proving which shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission of intention.
40. Duty of officers employed in connection with the affairs of a village to make certain report.-(1) Every officer employed in connection with the affairs of village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police officer, whichever is nearer, any information which he may possess.
(a) xxx.... xxx
(b) xxx.... xxx
(c) xxx.... xxxx
(d) the occurrence In or near such village of any sudden or unnatural death or of any death Under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person.
Section 176 I.P.C. reads as under:
176. Omission to give notice or information to public servant by person legally bound to give it-Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;
or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;
or, if the notice or information required to be given is required by an order passed Under Sub-section (1) of Section 565 of the Code of Criminal Procedure, 1898 (V of 1898), with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
11. In Swami Nath v. The S.D.O. Machhlishahr and Ors. reported in : AIR1958All660 . it was held that Mukhia is appointed by the District Magistrate Under Section 45(3) of the Code of Criminal Procedure. He should' also inform of any unnatural death that takes-place in the village. He is also required to inform in respect of matters contained in Clauses (a) to (f) of Section 45(1) of old Cr.P.C. It was further held in that case that a Mukhia cannot be deemed to be a Government servant and the post of Mukhia is not a salaried post and he receives no remuneration from the Government. In the above the Court was considering the case whether Swaminath, the petitioner as a Mukhia was in the service of State Government, the Central Government, or a Local Authority.
12. It was held in Emperor v. Ram Sarup reported in AIR 1938 Oudh P. 80 that the persons who are aware of the presence of such proclaimed offender but falls to give the required information to the police are liable Under Section 176 I.P.C.
13. In the case of Shridhar v. The State reported in , Shridhar's son Piar Singh committed suicide on the land of his father, but the father-petitioner before the Court did not inform about it. It was held that obviously, the scene of suicide was 'near' village Seri and Under Section 45 the duty of reporting the suicide will fall squarely on the heads of village-headmen, accountant, etc. of village Seri. The petitioner, undoubtedly, is the father of Piar Singh and morally his conduct in not reporting the matter to the police might be open to censure.
14. It was also held that in applying a criminal statute and before convicting a person of a criminal offence, care must be taken not to go beyond the obvious intention of the Legislature. It was further held that before a person can be convicted Under Section 176 I.P.C. the prosecution is bound to prove (a) that the accused person was legally bound to furnish a certain information to a public servant and (b) that he intentionally omitted to give such information.
15. It was further held that where a suicide took place in a village which was at a distance of a mile from the village of the land owner, and there was another village and a Nallah in between the two villages, the village where the suicide took place, could not be said to be near the village where the landlord lived.
16. In the case of Domarsingh v. Emperor reported in 1922 Cr.L.J. Nagpur P. 87 it was held as under:
Under Section 45 of the Criminal Procedure Code every Mukaddam and Kotwar is bound to communicate forthwith to the nearest Station House Officer or Magistrate the occurrence in and near the village of any sudden or unnatural death or any death under any suspicious circumstances.
However unnatural, in the ordinary sense of the word, the cause of a death might be, it would not come within the meaning of the word 'unnatural' as used in Section 45 of the Criminal Procedure Code so as to require to be reported immediately unless it occurred fairly soon after the cause.
The guilt of an accused should not be inferred from the omission by the accused of an available true and complete defence and substitution for it of unsustainable falsehoods. It is the duty of a Magistrate to find out whether an accused person is guilty or innocent, not merely to decide whether the pleas he chooses to put forward are sound or not.
Intention necessarily implies a mens rea, a consciousness of doing wrong. A Mukkaddam or Kotwar cannot be convicted Under Section 45 of the Criminal Procedure Code for an omission to make a report of a sudden accident or suspicious death if he honestly believes that there was no necessity for him to make the report and the view held by him is a reasonable view.
17. It was held in Ali Mahomed v. Emperor, reported in AIR (32) 1945 Privy Council P. 147 that Under Sections 3 and 4 of Mussalman Wakf Act, the Muttawali is required to furnish certain particulars relating to the Wakf property and failure to furnish the information is an offence Under Section 10 of the Act. But, it is not an offence Under this Section 176 I.P.C. because he was required to furnish details Under the Mussalman Wakf Act, 1923. This act is a special Act and the dis-obedience of this does not fall within the purview of Sections 40 and 43 of Cr.P.C. and 176 of I.P.C. Lord Porter of the Privy Council observed that 'It is no doubt an 'offence' if that word be used in its ordinary meaning, but 'offence', like 'legally bound to do' has a technical meaning in the Code. It is defined in Section 40 which says: 'Offence denotes a thing made punishable by this Code.' It follows that an act or omission is not an 'offence' as that word is used in the Code if it is punishable only Under some other enactment.
18. If then Sections 40 and 43 of Cr.P.C. and 176 I.P.C. be read together, the result follows that one who fails to furnish information which he is legally bound to furnish is punishable Under Section 176, that he is legally bound to furnish what it is illegal for him to omit, that it illegal for him to omit what is an offence and that an offence is what is punishable under the Code.
19. The only conclusion therefore, to be derived from this language appears to be that what is punishable under the Code is punishable Under Section 176 of the Code. The statement is no doubt true but it is not of much assistance in ascertaining what is punishable under the Code. To answer that enquiry one must look elsewhere than to Section 176 and if no other section of the Code deals with the matter, then one must conclude that the particular crime may be punishable under some other enactment but it is hot punishable under the Code. It follows in the present instance that though the failure to furnish information is an offence under the provisions of the Wakf Act yet it is not an offence punishable under the Penal Code.
20. It was held in Musammat Thokri and Anr. v. Emperor reported in 1911 (2) Cr.L.J. Punjab P. 425 that the utmost which has been taken as proved against them (accused) is that they were assisting their mistress to dispose of the body of the man believed to have been murdered with her knowledge and consent. It was further held that the view taken by us in the main case is that Kahn Chand's death was due to suicide rather than murder. Under these circumstances, it is impossible to uphold a conviction of any sort against the appellants. By Section 309, Indian Penal Code, an attempt to commit suicide is punishable but there is no section of the Code making suicide itself an offence, obviously because in that case there would be no offender who could be brought within the purview of the law. It was also held that we must take the law as we find it, and must hold that the removal or concealment of the body of a man not proved to be murdered does not amount to an offence Under Section 201 of the Code. Under certain specified circumstances covered by Section 45 of the Code of Criminal Procedure the concealment of a suspicious death might be punishable Under Section 176, Indian Penal Code, but the appellants being mere servants of Sardarni Bhagwan Kaur do not come within the category of persons who were bound to communicate an occurrence of the sort. The appeal of the appellants were accepted and their convictions for the charge Under Section 201 was set aside.
21. It has been held in Satvir Singh v. State of Punjab and Anr. reported in : 2001CriLJ4625 as under:
At the outset we may point out that on the aforesaid facts no offence linked with Section 306, I.P.C. can be found against any of the appellants. The said Section 306 penalises abetment of suicide. It is worded thus: 'If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may be extend to ten years, and shall also be liable to fine.' It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone with become an offence. The person who attempts to commit suicide is guilty of the offence Under Section 309, I.P.C. whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that suicide should necessarily have been committed. It is possible to abet the commission of suicide. But nobody would abet a mere attempt to commit suicide. It would be preposterous if law could afford to penalise an abetment to the offence of mere attempt to commit suicide.
22. It was held in Local Government v. Maniharsingh, reported in 1911 (12) Cr.L.J. Nagpur P. 441 that gumashta of mukaddam is not legally bound to inform Under Section 45 of Cr.P.C. Only mukaddam was responsible for not informing about the theft and he was responsible for the case being compounded instead of being reported and the mukaddam is not relieved of responsibility by the appointment of a gumashta Under Section 45 Cr.P.C: an omission to do so will constitute an offence Under Section 176 of the Penal Code.
23. In T.S. John v. State of Kerala reported in 1984 Cr.L.J. P. 753 it was held as under:
Section 39 of the Code states, inter alia, that every person aware of the commission of, or of the intention of any other person, to commit any offence punishable under certain sections of the Indian Penal Code (enumerated therein), shall, in the absence of any reasonable excuse, forthwith give information to the nearest Magistrate of Police Officer of such commission or intention. The sections enumerated include Sections 302, 303 and 304 I.P.C. In order that Section 39 of the Code should be attracted, the person must be aware of the commission of any offence under the enumerated sections, then only the person has a duty to inform authorities.
24. It was held in Matuki Misser v. Queen-Emperor reported in 1885 ILR (11) Calcutta P. 619 that it is not necessary, in order to support a conviction Under Section 176 of the Indian Penal Code against a person falling within the provisions of Section 45 of the Criminal Procedure Code, for not giving information of an occurrence falling Under Clause (d) of that section, to show that the death actually occurred on his land, when the circumstances disclosed show that a body has been found under circumstances denoting that the death was sudden, unnatural, or suspicious the finding of the body being a fact from which a Court might reasonably infer, in the absence of evidence to the contrary, that the death took place there.
25. In Bhagwantrao v Emperor reported in AIR 1926 Nagpur P. 217 it was held that the fact that some persons bound to give information have given that information while other persons who might be bound to give that information have omitted to do so is no ground for their prosecution and conviction Under Section 176.
26. It was held in Lt. Dhara Singh and Ors. v. Emperor reported in AIR 1933 Lahore P. 515 that Section 176 is intended to apply to parties who commit an intentional breach of obligation to report and not where the public servant has already obtained the information from other sources. The Lahore High Court relied upon the decision given in Empress v Sashi Bhusan Chukarbutty (1879) 4 Cal. 623 in which it was held that this section should not be put into force against one who has omitted to give information to the police of an offence having been committed in cases where the police have actually obtained such information from other sources as they undoubtedly did in the present case.
27. It has been held in Dr. Satyasaheel Nandlal Naik v. State of Maharashtra reported in 1996 Cr.L.J. P. 1463 that Section 176 I.P.C. clearly provides that whoever being legally bound to give any notice or information on any subject to any public servant intentionally omits to give such notice or information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine of Rs. 500/-. It was further held that the only provision which cast a duty on the public to give information to the police about commission of offence is Section 39 Cr.P.C, Certain offences are mentioned in that Section, but it does not refer to Sections 279, 337 or 304-A I.P.C. Penal provisions must be construed strictly. If there is no statutory or legal liability for a citizen to inform the police regarding a particular offence, then the prosecution Under Section 176 of the I.P.C. cannot stand. There is no provision Under Section 134 of the Motor Vehicles Act making it compulsory for public or doctor to inform the police about a motor vehicle accident.
Thus, Section 176 of I.P.C. is applicable to persons upon whom an obligation is imposed by law to furnish certain information to the public servants.
28. Section 40(1) of the Code of Criminal Procedure, 1973 casts upon this duty of informing to public servant on officers employed in acting affairs of a village and every persons resided in a village. Section 39 of Cr.P.C. cast upon a duty on every person aware of the commission' or intention of any person to commit any offence punishable under any of the sections of the Penal, Code. Before a person can be punished under this section, the prosecution must prove:
(i) that the accused was legally bound to give any notice or furnish information;
(ii) the information must have been required to be furnished to a public servant;
(iii) that he intentionally omitted to give the same in the manner and at the time required by law;
Intentional omission is the gist of the offence.
Section 176 is intended to apply to parties who commit an intentional breach of obligation to report and not where the public servant has already obtained the information from other sources. The mere fact that another person was also present at the time of the occurrence and was under a similar obligation to report does not justify omission to report.
Before a person can be punished under this section, the prosecution must prove that the person legally to give any notice or furnish any information to a public servant has intentionally omitted to do so.
The term 'intentionally omits'- to ingredients of the offence are ; (i) Intentional omission; (ii) The accused was legally bound to give information to public servant.
However, if the person legally bound to give information had no knowledge about the matter, he would not be answerable under this section.
29. In ILR (1976) 2 Cal. P. 1334 the accused were charged Under Section 302 and Section 201 of the Penal Code and were also charged Under Section 176 of I.P.C. for having intentionally omitted to give information of murder subsequently alleged to have been committed by them. It was held that the alleged offenders themselves could not be under any legal obligation to give information of their own offence.
30. It was held in (1997) 2 DMC 243 (244) that where the fact that the case Under Section 307 was registered at the police station by itself confirmed that the matter did not relate to any offence enumerated in Section 39 of the Code of Criminal Procedure requiring information of the offence to be given to the Magistrate of the offence to be given to the Magistrate or the police officer and the information about the event was already given to a public servant viz. the doctor, no offence Under provisions of this section could be said to be made out.
31. The accused himself is under no legal obligation to inform about the commission of an offence alleged to have been committed by him.
32. In the present case, P.W.3 Vada Ram has stated that his sister did not die due to burn, but has been burnt to death and the accused persons did final rituals without informing the police. He went to the Police Station, Mandar and met the S.H.O. at 6. The S.H.O. asked him about to bring the eye witnesses of the occurrence. On the next day, he went to Sirohi and met Dy. Superintendent of Police and submitted a written report. Though, P.W. 6 Ran Singh, S.H.O. has denied the fact of coming of Vadaram on 1st September, 1988 at Police Station but, in the opinion of the Court, the statement of Vadaram appears to be true and reliable and in the opinion of the Court P.W. 6 Ransingh was having a information about the commission of the so called offence and he did not do his duty. Under Section 40(1)(d) Cr.P.C, the information was given by Vadaram, but was not recorded by the concerned S.H.O. and in these circumstances, thereafter, Bheema was not under a legal obligation to further inform about the occurence. Bheema has been acquitted of the charges Under Sections 302, and 201 I.P.C. Being an accused also, he was not under an obligation to inform the police as per judgment of the Calcutta High Court cited supra.
P.W. 1 Chunnilal, who is brother of P.W.3 Vadaram has turned hostile. Chunnilal has not stated about the requisite intention of the accused Under Section 176 I.P.C.
P.W. 2 Ragnath has also been declared hostile by the prosecution and he has stated in the same terms as has been stated by P.W.4 Peetha Ram.
All the four witnesses have turned hostile and resiled from their statements to the police during investigation Under Section 161 Cr.P.C. No. offence was committed Under Section 302 I.P.C. as per finding of the learned trial Court, Mst. Panchu committed suicide and the commission of suicide is not an offence. In that circumstances also, Bheema was not under a legal obligation to inform the police about the so called unnatural death either Under Section 39 or 40 of Cr.P.C. Though not informing the police, his conduct may be censured and it may be assumed that he was under a moral duty to inform about it, but he was not legally bound to inform the public servant. The public servant concerned was having information through Vadaram and report Ex.P/3 and 5. In this view also, not informing to the public-servant, Bheema has not committed any offence. There is no evidence of intentional omission on the part of Bheema not to inform about the so called offence. The S.H.O. himself has narrated the omission as 'mugallta' (mis-understanding) in his complaint. Bheema with others was standing nearby the bull-cart, in which the dead body of Panchu was lying. On the same sect of offence, co-accused have been acquitted by the trial Court and the case of the present petitioner is not distinghishable on facts from those accused, who have been acquitted.
33. The judgment of the learned trial Court is illegal, improper and unjust. It is neither based on appreciation of evidence in right perspective nor on the correct appreciation of provisions of law.
Therefore, considering all the facts and circumstances of the case, in the considered opinion of the Court, the revision petition is liable to be accepted and is hereby accepted. The conviction and sentence awarded to the present petitioner by the learned trial Court is hereby set aside. He is acquitted of the charge Under Section 176 I.P.C. and set at liberty. His bail bonds and personal bonds are being discharged.