JUDGMENT
The two appellants in this appeal have been convicted by the Additional Sessions Judge of Coimbatore, the 1st appellant of an offence punishable under S. 201 Indian Penal Code, and the 2nd appellant of murder. The 1st appellant received a sentence of 5 years rigorous imprisonment while the 2nd appellant was sentenced to transportation for life under S. 302, Indian Penal Code.
The case arose out of the discovery of the dead body of one Ramasami Thevan a bachelor of about 23 years in the early morning of the 8th October in the itteri near the field belonging to witness Royappa Goundan. He reported the discovery of the dead body which had numerous injuries to the Village Munsif who reported the matter to the police and the Magistrate. The inquest was held on Sunday night the 8th October and the only eye-witness examined at the inquest, was not examined as a witness for the prosecution. The next day, however, during the investigation the Sub-Inspector was able to get the evidence of two eye-witnesses, namely, Kanda Vannan and Muthukumarasamy Thevan, P. Ws. 9 and 7 respectively, according to whom the 2nd appellant was the person who actually inflicted the fatal injury with an aruval on the deceased with the assistance of the other appellant. A third eye witness, viz., P.W 10, was examined by the police on the 13th October and the remaining eye-witness examined in the case, viz., P.W 8, was examined by the police on the 23rd October, as he was a strolling actor without any fixed abode. It would appear that several other eye-witnesses had been examined by the police during the investigation but they were not examined for the prosecution on the ground that they had either been won over or become hostile.
The case against the appellants rests almost entirely on the evidence of these four eye-witnesses, P.Ws 7 to 10. The learned Additional Sessions Judge who heard them says that he believes their evidence in view of their demeanour in the witness box and especially their story that it was the 2nd appellant who caused the fatal wound to the deceased. As regards P.W 10 however the learned Additional Sessions Judge has failed to mention or to take into account the fact that while he now poses as an eyewitness of the actual stabbing he appears to have told the police when he was examined during their investigation that he only heard of it and did not see. This must necessarily detract very seriously from the value of his evidence, and I am not therefore prepared to attach any weight to the evidence of P.W 10 and his evidence must really be excluded from consideration. As regards the other three eye-witnesses there can be no doubt in my opinion that they must have been present at the time and they must have been actual eye-witnesses. There is no particular reason why they should give false evidence against either of the appellants, and I see no reason to differ from the learned Additional Session Judge's view as regards the value to be attached to their testimony. There is nothing inherently improbable in their evidence: on the other hand, their evidence is corroborated by the discoveries made by the police after the investigation had begun. All the three eye-witnesses, P. Ws. 7, 8, add 9, swear that they saw the 2nd appellant cutting the deceased on the right arm and on the right side of the chest with an aruval which he had in his hand just after the 1st appellant had bent the head of the deceased down. They also state that the two appellants tied the deceased with a rope and began to drag him away saying that he was going to be taken to the Village Munsif. As a matter of fact the dead body was found in a place about 2 miles from the scene of occurrence. Both the appellants attribute the evidence against them to enmity and faction. According to them neither of them was present in the Bhajana party during whose peregrinations the occurrence took place. It appears to be true that there has been some faction between two persons in the village, viz., Arunachala Thevan and Nachimutu Thevan regarding some land, and it is seen that the appellants were siding with one of them. This however does not satisfactorily explain away the evidence against the appellants. There is no real connection between the eye-witnesses and either of these leaders of factions in the village. No evidence was adduced by the appellants in support of their plea that they were absent from the Bhajana party. If as a matter of fact they were actually not present, it ought to have been possible for them to prove it. Their plea that they were not present at the Bhajana party appears to be untrue. In view of what I consider to be satisfactory evidence of the eye-witnesses in this case it is unnecessary to deal with the question of motive in this case. The learned Additional Sessions Judge has dealt with the question of motive in paragraph 14 of his judgment and he appears to think that the condition of his corpse itself affords evidence of sexual motive. I do not think that there is very satisfactory evidence of motive in this case except the evidence of general ill-feeling between the two factions. As regards the sexual motive the evidence is little better than hearsay.
I am of opinion however that the evidence of the eye-witnesses P. Ws. 7, 8 and 9 can be safely acted upon. That evidence shows that the death of the deceased was caused by the 2nd appellant as the result of the fatal injury which he was seen to inflict on the deceased at the time of the occurrence. Where and when the other injuries were inflicted on the deceased is not known and it is not necessary to speculate as regards this part of the case in the absence of evidence; but the evidence actually available is clear and sufficient to fix the actual murder upon the 2nd appellant and his conviction under S. 302 must therefore be confirmed. The sentence of transportation for life imposed upon him is less than what he deserves, and in any case it is the lesser of the two sentences which the law permits in cases of murder. His appeal is therefore dismissed under S. 423, Criminal Procedure Code.
As regards the 1st appellant the only acts proved against him are that he caught hold of the tuft of the deceased just before the 2nd appellant fatally stabbed him, and that he took part in tying the deceased with a rope and dragging him along for some distance. These acts were, according to the learned Additional Sessions Judge, insufficient to support the charge of murder. Whether this view is right or wrong is not a question that arises for decision in this appeal. The question that I have to decide is whether these acts constitute an offence punishable under S. 201, Indian Penal Code, and I am of opinion that this question must be answered in the negative. The essential ingredient of an offence punishable under S. 201, Indian Penal Code, is causing disappearance of evidence of the commission of an offence with a view to screen the offender from legal punishment, and it cannot be said that the acts shown to have been committed by the 1st appellant amount to this offence. It is not contended on behalf of the Crown that these acts constitute this offence or that there is any other evidence on the strength of which the conviction under S. 201, Indian Penal Code, can be sustained. There has been no appeal by the Crown in respect of the acquittal of the 1st appellant of the charge of murder, and it is therefore not open to me to consider whether the acts proved against him would not have justified a conviction for murder. These acts do not certainly constitute an offence punishable under S. 201, Indian Penal Code, and I must therefore, though with reluctance, set aside his conviction and the sentence imposed upon him under that section and direct his acquittal under S. 423, Criminal Procedure Code.
N. R. R.Orders accordingly.