Causing Disappearance of Evidence and Screening Offender under BNS: Sections 238 and 239 with Landmark Cases

A murderer's friend burns the bloodstained clothes and buries the weapon to prevent detection. A person who witnesses a crime destroys CCTV footage to shield the perpetrator. A relative gives false information to the police to divert the investigation away from the real culprit. A doctor issues a false medical certificate to help an offender escape prosecution. Each of these acts strikes at the administration of justice, not by committing the original offence, but by concealing it, protecting the offender, or destroying the evidence that would bring the guilty to justice. The criminal law recognises that the concealment of crime and the screening of offenders are themselves serious offences, because they defeat the very purpose of the criminal justice system. The Bharatiya Nyaya Sanhita, 2023, addresses these through Section 238 (causing disappearance of evidence of offence, or giving false information to screen offender) and Section 249 (harbouring offender). Section 238 is the principal provision, criminalising the destruction of evidence and the giving of false information to screen an offender. This module walks through Section 238, its two limbs, the graduated punishment based on the underlying offence, the crucial requirement of intent to screen, the distinction from related offences, and the leading cases.

1. Introduction

Concealing crime as an offence

The criminal law is concerned not only with the commission of offences but also with their detection and prosecution. Acts that conceal crime, destroy evidence, or protect offenders defeat the administration of justice:

• Destroying evidence prevents the truth from being ascertained.
• Giving false information diverts the investigation.
• Screening offenders allows the guilty to escape punishment.

These acts are criminalised because they strike at the effectiveness of the entire criminal justice system.

The protection of the justice system

The rationale for criminalising the concealment of crime:

• The justice system depends on the availability of evidence.
• The detection and prosecution of crime depend on truthful information.
• Protecting offenders undermines deterrence and accountability.
• The concealment of crime is a distinct wrong against public justice.

The statutory framework

The BNS addresses these concerns through:

• Section 238: causing disappearance of evidence, or giving false information to screen an offender.
• Section 249: harbouring an offender.
• Related provisions on false information, destruction of documents, and other offences against public justice.

2. Section 238 BNS: The Statutory Provision

Text of Section 238

The two limbs

Section 238 has two limbs:

• First limb: causing evidence of the offence to disappear.
• Second limb: giving false information respecting the offence.

Both must be done with the intention of screening the offender from legal punishment.

The graduated punishment

The punishment is graduated according to the underlying offence:

• Capital offence: up to seven years.
• Life imprisonment or up to ten years: up to three years.
• Less than ten years: up to one-fourth of the longest term, or fine, or both.

3. The First Limb: Causing Disappearance of Evidence

The first limb criminalises causing evidence of an offence to disappear. This covers:

• Destroying evidence (burning, breaking, dissolving).
• Concealing evidence (hiding, burying).
• Removing evidence (transporting away, disposing of).
• Altering evidence (tampering to make it useless).

Common examples:

• Burning bloodstained clothes.
• Burying a murder weapon.
• Disposing of a body to prevent detection.
• Deleting CCTV footage or digital records.
• Washing away bloodstains from a crime scene.
• Destroying documents that would establish the offence.

The essence of the first limb: any act that causes the evidence of an offence to disappear, done with the intention of screening the offender.

4. The Second Limb: Giving False Information

The second limb criminalises giving false information respecting the offence:

• Giving information that the person knows or believes to be false.
• Respecting the offence.
• With the intention of screening the offender.

Common examples:

• Falsely telling the police that the offender was elsewhere.
• Giving a false account of how the offence occurred.
• Falsely implicating an innocent person to divert suspicion.
• Providing a false alibi for the offender.
• Giving a false version of events to mislead the investigation.

The second limb targets the corruption of the investigation through false information, complementing the first limb's targeting of physical evidence.

5. The Requirement of Knowledge or Reason to Believe

A precondition for Section 238 is that the accused must know or have reason to believe that an offence has been committed:

• Actual knowledge: the accused knew an offence was committed.
• Reason to believe: the accused had reason to believe an offence was committed.

This requirement:

• Ensures that the accused was aware (or should have been aware) of the underlying offence.
• A person who innocently destroys something without knowing it is evidence of an offence is not liable.
• The knowledge or reason to believe must relate to the commission of an offence.

The 'reason to believe' standard captures situations where the accused was aware of circumstances that would lead a reasonable person to conclude an offence had been committed, even without direct knowledge.

6. The Crucial Element: Intention to Screen

The crucial element of Section 238 is the INTENTION to screen the offender from legal punishment:

• The act (destroying evidence or giving false information) must be done WITH THE INTENTION of screening the offender.
• This intention is the gravamen of the offence.
• Without this intention, the offence is not made out.

The intention to screen:

• Must be to protect the offender from legal punishment.
• Distinguishes Section 238 from innocent or accidental destruction of evidence.
• Must be established by the prosecution.

The intention to screen is the defining element. A person may destroy or dispose of something for various reasons; only where the act is done with the specific intention of protecting the offender from legal punishment does Section 238 apply.

7. The Graduated Punishment Framework

The graduated punishment framework:

• The punishment for screening depends on the gravity of the underlying offence.
• Screening a murderer (capital offence) attracts up to seven years.
• Screening an offender of a lesser offence attracts proportionately less.

The rationale:

• The gravity of screening reflects the gravity of the offence being concealed.
• Concealing a murder is more serious than concealing a minor offence.
• The graduated framework calibrates the punishment to the seriousness of what is being concealed.

This graduated approach is a distinctive feature of Section 238 - the punishment is not fixed but varies with the underlying offence, reflecting the principle that the seriousness of screening depends on the seriousness of the crime concealed.

8. Independence from Conviction of the Offender

An important feature of Section 238: the offence is committed regardless of whether the offender is ultimately convicted:

• The offence of screening is complete when the evidence is destroyed or false information is given with the intention to screen.
• It does not depend on the outcome of the case against the offender.
• Even if the offender is acquitted, the person who destroyed evidence may be liable under Section 238.

However, there is a nuance:

• The prosecution must establish that an offence was actually committed (the underlying offence).
• The person must have known or had reason to believe an offence was committed.
• But the conviction of the specific offender is not a precondition.

9. Distinction from Related Offences

Distinctions:

• Section 238 targets the destruction of evidence and false information to screen (concealing the crime).
• Section 249 targets the harbouring of the offender (protecting the person).
• Section 228 targets the fabrication of false evidence (creating false material for proceedings).

The distinction between Section 238 and Section 249:

• Section 238: concealing the crime (destroying evidence, false information).
• Section 249: protecting the criminal (harbouring, sheltering).

The distinction between Section 238 and Section 228:

• Section 238 (screening): making evidence DISAPPEAR (removing true evidence).
• Section 228 (fabricating): CREATING false evidence (introducing false material).
• Section 238 is about concealment; Section 228 is about fabrication.

10. Application to the Offender Himself

An important question: does Section 238 apply to the offender who destroys evidence of their own crime?

• The general view: a person cannot be convicted under Section 238 for destroying evidence of their OWN offence, because they cannot 'screen' themselves in the sense contemplated by the provision (the screening is of 'the offender', suggesting another person).
• However, this is a nuanced area with some divergence in the case law.

The prevailing position:

• Section 238 is primarily aimed at persons who screen ANOTHER offender.
• The offender who destroys evidence of their own crime is generally not liable under Section 238 (though they may face other consequences).
• But where a person screens both themselves and others, or where the facts are complex, the application may vary.

The rationale: the offence contemplates the screening of 'the offender' from legal punishment, which suggests the screening of another person. However, the courts have considered various situations, and the application to self-screening remains a nuanced question.

11. The Evidentiary Framework

Establishing an offence under Section 238 requires proof of:

• The commission of the underlying offence.
• The accused's knowledge or reason to believe that the offence was committed.
• The act of causing evidence to disappear OR giving false information.
• The intention to screen the offender from legal punishment.

The evidentiary challenges:

• Proving the intention to screen is often the most difficult element.
• The intention may be inferred from the circumstances (the nature of the act, the relationship with the offender, the conduct).
• Circumstantial evidence is often central to Section 238 cases.

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Kalawati v. State of Himachal Pradesh, AIR 1953 SC 131. Framework for screening offence.
• V.L. Tresa v. State of Kerala, (2001) 3 SCC 549. Intention to screen essential.
• Palvinder Kaur v. State of Punjab, AIR 1952 SC 354. Underlying offence must be established.
• Sukhram v. State of Maharashtra, (2007) 7 SCC 502. Specific intention to screen.
• Hanuman v. State of Rajasthan, (1994) SC. Disposal of body with intent.
• Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270. Graduated punishment.
• Vijayan v. State of Kerala, (1999) 3 SCC 54. Intention inferred from circumstances.
• Sanjay Kumar v. State of Himachal Pradesh, (2017) SC. Modern framework.
• State of Karnataka v. Madesha, (2007) SC. False information limb.
• Roshan Lal v. State of Punjab, (1965) SC. Framework for evidence disappearance.
• Suleman Rehiman Mulani v. State of Maharashtra, AIR 1968 SC 829. Screening framework.
• Kishori Lal v. State of Madhya Pradesh, (2007) SC. Circumstantial evidence framework.
• Om Prakash v. State of Uttar Pradesh, (2006) SC. Intention to screen framework.
• Mahabir Singh v. State of Haryana, (2001) SC. Screening after murder.
• State of Tamil Nadu v. Rajendran, (1999) 8 SCC 679. Framework for body disposal.

Frequently Asked Questions

What is Section 238 BNS?

Section 238 BNS (formerly Section 201 IPC) criminalises causing disappearance of evidence of an offence, or giving false information to screen an offender. It provides: 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 false information respecting the offence, shall be punished. It has two limbs: (i) causing disappearance of evidence (destroying, concealing, removing, or altering evidence); (ii) giving false information respecting the offence. Both must be done with the intention of screening the offender. The punishment is GRADUATED according to the underlying offence: up to 7 years for a capital offence; up to 3 years for an offence punishable with life or up to 10 years; up to one-fourth of the longest term for lesser offences.

What are the two limbs of Section 238?

Section 238 has two limbs. THE FIRST LIMB criminalises causing evidence of an offence to disappear - destroying (burning, breaking), concealing (hiding, burying), removing (disposing of), or altering (tampering) evidence. Examples: burning bloodstained clothes, burying a murder weapon, disposing of a body, deleting CCTV footage, washing away bloodstains. THE SECOND LIMB criminalises giving false information respecting the offence that the person knows or believes to be false. Examples: falsely telling the police the offender was elsewhere, giving a false account of the offence, providing a false alibi, falsely implicating an innocent person to divert suspicion. Both limbs must be done WITH THE INTENTION of screening the offender from legal punishment. The first limb targets physical evidence; the second targets the corruption of the investigation through false information. Together they cover both the destruction of true evidence and the introduction of false information.

What is the crucial element of Section 238?

The crucial element of Section 238 is the INTENTION TO SCREEN the offender from legal punishment. The act (destroying evidence or giving false information) must be done WITH THE INTENTION of screening the offender. This intention is the gravamen of the offence - without it, the offence is not made out. In V.L. Tresa v State of Kerala, (2001) 3 SCC 549, the Supreme Court held that the prosecution must prove that the accused caused evidence to disappear or gave false information WITH THE INTENTION of screening the offender; mere disappearance of evidence, without the intention to screen, is not sufficient. The intention to screen distinguishes Section 238 from innocent or accidental destruction of evidence. A person may destroy or dispose of something for various reasons; only where the act is done with the specific intention of protecting the offender from legal punishment does Section 238 apply. The intention may be inferred from the circumstances (the nature of the act, the relationship with the offender, the conduct).

How is the punishment for screening graduated?

The punishment under Section 238 is GRADUATED according to the gravity of the underlying offence being concealed: (i) if the underlying offence is a CAPITAL offence (punishable with death) - imprisonment up to seven years and fine; (ii) if punishable with LIFE imprisonment or up to ten years - imprisonment up to three years and fine; (iii) if punishable with LESS than ten years - imprisonment up to one-fourth of the longest term provided for the offence, or fine, or both. The rationale: the gravity of screening reflects the gravity of the offence being concealed. Screening a murderer (capital offence) is more serious than screening an offender of a minor offence, and the punishment is calibrated accordingly. This graduated approach is a distinctive feature of Section 238 - the punishment is not fixed but varies with the underlying offence, reflecting the principle that the seriousness of screening depends on the seriousness of the crime concealed.

Can a person be convicted under Section 238 if the offender is acquitted?

Yes, in principle. The offence under Section 238 is committed regardless of whether the offender is ultimately convicted. The offence of screening is complete when the evidence is destroyed or false information is given with the intention to screen. It does not depend on the outcome of the case against the offender - even if the offender is acquitted, the person who destroyed evidence may be liable under Section 238. However, there is an important precondition: the prosecution must establish that an offence was ACTUALLY COMMITTED (the underlying offence), and that the person knew or had reason to believe an offence was committed. In Palvinder Kaur v State of Punjab (1952), the Supreme Court held that Section 201 cannot be used to convict where the very commission of the underlying offence is not established. So while the CONVICTION of the specific offender is not a precondition, the COMMISSION of the underlying offence must be established for a Section 238 conviction.

Does Section 238 apply to an offender who destroys evidence of their own crime?

This is a nuanced question. The general and prevailing view is that a person cannot be convicted under Section 238 for destroying evidence of their OWN offence, because the provision contemplates screening 'the offender' from legal punishment, which suggests the screening of ANOTHER person. Section 238 is primarily aimed at persons who screen another offender. The offender who destroys evidence of their own crime is generally not liable under Section 238 (though they may face other consequences and the destruction may be relevant as conduct). However, this is a nuanced area with some divergence in the case law, and the application may vary where a person screens both themselves and others, or where the facts are complex. The rationale for the general view: the offence contemplates the screening of 'the offender' from legal punishment, which linguistically and conceptually suggests the screening of another person rather than self-screening. This remains an area where the precise application depends on the specific facts and the interpretation adopted.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Harbouring Offender under BNS: Section 249 that criminalises sheltering an offender, complementing Section 238.
• Fabricating False Evidence under BNS: Section 228 that criminalises creating false evidence, distinct from causing disappearance.
• False Information under BNS: the related provisions on giving false information to public servants.
• Offences Against Public Justice under BNS: Chapter XIV of which Section 238 is part.