Supreme Court: Prosecution witnesses having mobile phones not intimating incident to police casts a serious doubt with regard to the genuineness of the prosecution case

Learned Senior Counsel further submits that both P.W. 1-Ali Sher Khan and P.W. 2-Jaan Mohammad have admitted in their evidence that they were possessing mobile phones. She submits that in normal circumstances, after such a dastardly incident had occurred, P.W. 1-Ali Sher Khan and P.W. 2-Jaan Mohammad would have informed the Police about it on their mobile phones. She submits that, however, the same has not been done by them.

{Para 15}

70. Coupled with the fact that though P.W. 1-Ali Sher Khan and P.W. 2-Jaan Mohammad, had mobile phones, they had not informed the Police on phone, also casts a serious doubt with regard to the genuineness of the prosecution case.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 434-436, 442, 437-439 and 440-441 of 2020 

Decided On: 15.12.2021

Jaikam Khan Vs. The State of Uttar Pradesh

Hon'ble Judges/Coram:

L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ.

Author: B.R. Gavai, J.

Citation: MANU/SC/1259/2021,( 2021 ) 13 SCC 716.

Read full judgment here: Click here.

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Whether court can rely on evidence of a witness who has not informed about the incident to family member of deceased or police?

 This witness stood to all tests in cross-examination. He

stated in the cross-examination that neither he nor any other person

present there made any effort to take Ananda to dispensary.He did not inform the incident to the family members of Ananda or to the police. It is true that this witness did not inform the family members of the deceased Ananda nor did he inform the police. Such conduct of this witness is not unusual. Now a days, nobody wants to get involved in the rig marole of the legal procedure. People also do not want to get themselves entangled into the affairs of others. Therefore, simply because this witness did not inform the incident to the family members of the deceased or to the police, cannot lead to an inference that he was not present at the spot of the incident.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 268 OF 2014

 Shyamsundar Vithal Pawle Vs The State of Maharashtra 

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Whether the court can convict accused of an offence U/S 202 of IPC if the prosecution has failed to prove principal offence?

It would be convenient at the stage to refer to Section 202 of the Penal Code which runs as under:

202. Intentional omission to give information of offence by person bound to inform - Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

The offence in respect of which the appellants were indicted viz. having intentionally omitted to give information respecting an offence which he is legally bound to give, not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main. offence before making a person liable under this section. The offence under Section 304 (Part II) and the one under Section 331 of the Penal Code not having been established on account of several infirmities, it is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 16 of 1973

Decided On: 18.01.1979

Harishchandrasing Sajjansinh Rathod  Vs.  State of Gujarat

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Whether court can hold accused who has committed principal offence guilty of offence U/S 202 of IPC if he fails to inform police about happening of crime?

Appearing in support of the appeal, Mr. Patel has vehemently urged that on the proved facts and circumstances of the case, the aforesaid offence under Section 202 of the Indian Penal Code is not made out against the appellants. It would be convenient at the stage to refer to Section 202 of the Penal Code which runs as under:

202. Intentional omission to give information of offence by person bound to inform - Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

4. To sustain a conviction under the above quoted Section 202 of the Penal Code, it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed, (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information. We have gone through the entire evidence bearing on the aforesaid offence under Section 202 of the Penal Code but have not been able to discern anything therein which may go to establish the aforesaid ingredients of the offence under Section 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give information respecting an offence which he is legally bound to give, not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main. offence before making a person liable under this section. The offence under Section 304 (Part II) and the one under Section 331 of the Penal Code not having been established on account of several infirmities, it is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code. The High Court has also missed to notice that the word 'whoever' occurring at the opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is alleged to have committed the principal offence. This is so because there is no law which casts a duty on a criminal to give information which would incriminate himself. That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not appear to have been made out against the prosecution. There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 16 of 1973

Decided On: 18.01.1979

Harishchandrasing Sajjansinh Rathod  Vs.  State of Gujarat

Hon'ble Judges/Coram:

Raja Jaswant Singh and P.S. Kailasam, JJ.

Citations: AIR 1979 SC 1232, 1979 CriLJ 1025, (1979) 0 GLR 829, (1979) 4 SCC 502, 1979 (11) UJ 369 SC, MANU/SC/0114/1979 

Author:Raja Jaswant Singh, J.

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