The Public Prosecuto... v. Lakshmamma And Anoth...

Waller, J. — The respondents in this Criminal Revision Case and Appeal were charged with the murder of a little boy named Ramudu. They were charged also with an offence under S. 201 Indian Penal Code. Three of the Assessors found them not guilty on both charges. The fourth thought that the 1st respondent was guilty of murder and the 2nd of abetment and that both bad committed the offence under S. 201, Indian Penal Code. The Sessions Judge was of opinion that the boy had been murdered and that one or other of the respondents had murdered him. As he was unable to decide which had murdered him, he acquitted both of murder, but convicted them under S. 201, Indian Penal Code. On the 1st respondent he passed what was, under the circumstances, the surprisingly lenient sentence of 4 years' R. I. That passed on the 2nd was still more surprising—imprisonment till the rising of the Court—although there was really no ground for distinguishing between the two. The parents of the boy not unnaturally, filed a revision petition asking that the acquittals on the charge of murder should be set aside or that, at the least the sentences should be enhanced. The Public Prosecutor subsequently preferred an appeal with the same objects in view.

The facts are, on the whole, simple and clear enough. The murdered boy was the son of P. Ws. 1 and 23, who lived next door to Kondiah, the husband of the 2nd and son-in-law of the 1st respondent. Kondiah was an elderly man and his wife middle aged and they had had only one child, a daughter now aged about 18. He had, it is said, taken a great fancy to Ramudu and was proposing to adopt him, a proposal to which his wife and her mother objected. On 2nd and 3rd April he was away from home, leaving the respondents alone in the house. On the evening of 2nd, Ramudu disappeared. A search was made for him, but without success and his father offered a reward of Rs. 50 to anyone who could find him. This led to no result and he gave information to the police the next day. In the meantime, something curious had happened. He had sent P. W. 19 to consult a certain astrologer and P. W. 19 had come back with the information that the “women of the northern house (in which the respondents lived)” had killed the boy and that his body would be found on Saturday the 4th. On that day Kondiah returned and according to a statement made by the 2nd respondent to P. W. 20, noticed an unpleasant smell in the house and was told that it must be due to a dead bandicoot. The next day (5th) he had a meal and went out. The women must by then have been desperate; the body of the boy was certain to be found if they kepi it any longer in the house and so they were driven to desperate measures. It is not easy to dispose of a corpse even in a village; in the heart of a town like Proddatur it is a matter of extreme difficulty. What they did was to take the boy's body from the place where it had been concealed, to carry it up the stairs to the roof and thence to throw it on to the adjacent roof of P.W 1's house. By a strange and, for them, most unfortunate, coincidence, they happened to be observed by P.W 11, who saw the boy's body being thrown out of a basket by the 1st respondent, the 2nd respondent attempting, at the time, to screen her with a cloth. Possibly he did not see quite as much as he says he did, but he had doubtless heard of the astrologer's prophecy and put two and two together; for he at once ran to P.W l's house shouting, in order to give information. His cry had attracted the attention of P.W 3, who looked up to the roof and saw the respondents there. On reaching P.W l's house, P.W 2 gave information to P.W 22, who passed it on to P.W 1. The latter sent his peon (P. W. 8) to the police to give information and the information he gave was recorded in Ex. III. Much, naturally, is made of the fact that the respondents are not mentioned By name in Ex. III, but I do not think that the omission is very significant. P. W. 8 was not himself an eye-witness and it is not unlikely that, in his agitated state of mind, P. W. 1 forgot or did not think it necessary to name the respondents to him. The Head Constable, who recorded Ex. III, went to the house at once and there was told their names. On the roof he found the dead body of the boy in an advanced state of decomposition. Mr. Grant suggests that it must have been thrown on the roof after the murder and decomposed there. If that had been done, discovery must have been made much sooner, as the body would have attracted the birds of the air in a very short time. I infer then, that it must have been thrown where it was found very shortly before it was found. Some time later, the Inspector (P. W. 11) came and examined Kondiah's house. In the kitchen he found a trough full of sand where waterpots were usually kept—from which a very offensive smell came. In the sand, there was a hole, in which the boy's body had evidently been buried. In another room he saw a basket which also smelt most offensive and in the bath-room he found a woman's cloth, from which emanated the same odour. He followed the smell up the stair case and saw drops of serous fluid on the stairs. From his evidence, it seems quite clear that the boy's body had been buried for some time in the trough and that it had recently been removed from it and taken to the roof. No suspicion of any sort attaches to Kondiah and the only people who could have buried the body and removed it to the roof were the women of the house. This must have been done by them shortly before the discovery and there is therefore material corroboration of P. W. 11's story.

After the discovery, a crowd of men collected, among whom was K. Subbayya Chetty (P.W 20), who seems to be a prominent and influencial resident of Proddatur. In his presence Kondiah asked his wife to tell the truth and she made a long statement, the effect of which was to place the entire blame on her mother and to exculpate herself completely. Her mother it was who did everything—killed the boy, buried his body and carried it up to the roof. The Sessions Judge declined to allow the statement to be put in evidence, as he thought that P. W. 20 was a person in authority, which he was not, that the statement was a confession, which, as regards the charge of murder, it was not and that it had been made as the result of some sort of inducement, whether by way of threat or promise does not appear, which it does not seem to have been. Afterwards, the 2nd respondent was sent by the Police to the Magistrate to be examined under S. 164, Criminal Procedure Code, and she was so examined and told then much same story as she had told to P. W. 20. The Sessions Judge describes this as a peculiar episode. I can myself see nothing peculiar about it. The police were then investigating a charge of murder and not a charge under S. 201, Indian Penal Code. They were aware that the 2nd respondent was attributing the murder to her mother and desired to have her evidence as a witness recorded. She was examined, therefore, as a witness and not as an accused person, who was expected to make a confession. The Sessions Judge excluded her statement from evidence on the ground that it was inadmissible because the Magistrate had not gone through the formalities required by S. 164, Criminal Procedure Code, in respect of the recording of confessions.

Now what did these two excluded statements amount to? What the 2nd respondent, P. W. 20, the Police and the Magistrate were thinking about at the time was the murder and nothing else. An offence under S. 201, Indian Penal Code, was in the contemplation of no one. That being so, it was the 2nd respondent's object not to confess to anything, but to repudiate the murder and to fasten it on some one else, which she proceeded to do—so that on the whole, neither of these statements was or was intended to be a confession, properly so described. It is true, of course, that her legal duty was, under S. 44, Criminal Procedure Code, to, give information of the murder and that her omission to do so was an offence under S. 202, Indian Penal Code Further, her illegal omission might be construed as intended to aid her mother's offence under S. 201, Indian Penal Code, within the meaning of S. 107, Indian Penal Code. But all this was, at the moment, rather beside the point. She was not aware that she was admitting anything criminal nor did she intend to do so. I interpret her statement to P. W. 20 as a denial of complicity in the murder rather than as a confession of guilt under Ss. 201 and 202, Indian Penal Code. Even if it be construed as a confession, I do not agree that it should have been rejected as evidence against her; for P.W 20 was not a person in authority and there is no satisfactory evidence of improper pressure. As regards the statement made to the Magistrate, it must be remembered that she was then thought and thought hereself to be a witness. And it is, at the least, a very arguable question whether a statement made by a witness, into which he introduces some matter that incriminates himself, must be excluded from evidence merely because the formalities prescribed by S. 164, Criminal Procedure Code, in regard to confessions have not been carried out. After all, it would be expecting something superhuman of a Magistrate to require him to warn a person not to say something which no one had any reason to suppose he was going to say. Apart from that, the Sessions Judge has overlooked S. 29 of the Evidence Act, which says that no confession, which is otherwise admissible, becomes inadmissible merely because the maker of it has not been warned that he need not make it and that it might be used against him. On the whole, I think that both of the statements, even if they were confessions—were not inadmissible in evidence as against the 2nd respondent. The proper way, however, of dealing with them is, in my opinion, to treat them as worthless as being no more than efforts by an accomplice to shift the whole guilt on to another person. And that is the way in which I propose to treat them; in fact, to ignore them altogether.

What then remains? There is, first of all, the motive, which has been proved and affects both of the respondents equally. There is next the fact that, when P. W. 1 questioned them about the missing boy, they replied that he had not been to the house; and that was at a time when he was dead and both of them must have known that he was dead. There are further the facts that they were alone in the house at the time, that the boy was buried and must have been killed in the house, that the body could be tracked up the stairs and that it had evidently been carried up there in the basket found by the Inspector in the house. Finally, there is the evidence of P. W. 11, which I see no reason to disbelieve, that one of them threw the body on to P. W. 1's roof, while the other tried to screen her and also that of P. W. 3 who saw them both on the roof after lie heard P. W. 11's cry. As against the 1st respondent, in addition, it has been proved that she pointed out to the police the place where the dead boy's shirt was found.

What inference can be drawn from these facts? The first is that the boy was murdered. On the question of who murdered him, the Sessions Judge thought that it must be one or other of the respondents, but, as he could not decide between them, he acquitted them both. I do not think myself that that was the right conclusion. The proper inference seems to me to be that they must have been acting in concert throughout. They were alone together in the house. Both shared in the motive and I cannot believe that either would have run the risk of killing the boy and hiding his body in the kitchen, without the knowledge and connivance of the other. Both of them lied to P. W. 1, when he asked about the boy. Both of them kept silence for two days and then, when the position became desperate, acted together in disposing of the body. Probably only one of them actually committed the murder—it does not matter which of them it was—but I do not doubt that the other connived at it. I would therefore set aside the acquittals, convict both of murder and sentence them each to transportation for life. As regards the offence under S. 201, Indian Penal Code, it having been found that both of them were privy to the murder, it is not necessary to fall back on that section, which applies to persons other than the principal offenders. The view of the Judge that, though he could not decide which of the respondents committed the murder, they could both be found guilty under S. 201, Indian Penal Code, is, to my mind, quite illogical., If he could not decide which was the offender, how could he find which concealed the body in order to screen the offender?

Krishnan Pandalai, J.—I shall deal with the Criminal Appeal first. The facts are fully stated in the judgment of the lower Court and that of my learned brother which I have had the advantage of reading. The question in the appeal is whether there is sufficient evidence on which either or both of the respondents can be convicted of murder. After giving the matter my earnest consideration I much regret that I am unable to agree with my learned brother that the acquittal of the respondents on the charge of murder was wrong. I agree with the lower Court and my learned brother that the evidence leaves no room for doubt that the boy Ramudu was murdered in the house where the respondents and Chinna Kondayya, the husband of the second respondent, live sometime after he was missed on the afternoon of the 2nd April 1931. I agree also that there is no room to suspect the complicity of Chinna. Kondayya in this crime as he appears to have been absent from the house on the 2nd and returned only on the 4th. The child would appear (there is really no evidence about it except the statement of the second respondent which will be referred to later) to have been drowned in a water trough and his body buried in a sand trough. On the 4th, Chinna Kondayya returned and complained of offensive smell in the house. He was told that it might be a dead bandicoot. The next day he went out after his morning meal and before he came back the two respondents are proved to have carried the dead body of Ramudu, which was the cause of the smell and which was in a highly decomposed condition, upstairs in a basket and to have thrown it on the neighbouring terrace of P.W 1, the 1st respondent carrying the basket and the second respondent screening it with a cloth. The police came. Chinna Kondayya also came back and the second respondent being taxed with the murder by her husband and the people who gathered made a statement to P.W 20 exculpating herself from all responsibility for the murder and accusing the first respondent. The police apparently accepted this version and placed her before the Magistrate where she substantially repeated as a witness under S. 164 what she had told P.W 20. On the 6th, on information given by the first respondent, a shirt, which was on the body of Ramudu, was recovered from a heap of groundnuts.

Before considering whether the charge of murder can be brought home upon the above facts to either or both the respondents, I shall refer to the two statements of the second respondent abovementioned which have been excluded from consideration by the learned Sessions Judge. As to the statement made to P.W 20, Mr. Grant has admitted that the rejection was wrong. I agree with that view. The ground on which it was rejected is that it was made to a person in authority in circumstances making it inadmissible under S. 24 of the Evidence Act. I cannot agree with the lower Court either that P.W 20 was a person in authority in the sense in which it is used in S. 24 or that the statement to him was caused by any inducement, threat or promise. It may be added that the statement spoken to by P.W 20 contained no confession implicating the maker in the murder which was the subject of P.W 20's question that all that it contains is a narration of facts from which it may be inferred that after the murder the second respondent was privy to the concealment of the body in the sand trough by her mother. It is not necessary to elaborate this point because the exclusion of this statement by the learned Judge Was admittedly wrong.

The next statement whose admissibility is in question is the statement made on oath by the second respondent on the 5th April before the Magistrate under S. 164, Criminal Procedure Code The Public Prosecutor did not press that this document should be used in evidence and therefore it is not necessary to consider the matter at length. The learned Judge excluded it on the ground that it is a confession and that it is inadmissible because the safeguards provided by S. 164 for the recording of confessions have not been complied with. At the time when it was made, it was not made by a person accused of any offence but by one who was put forward as a witness and who purported to speak as a witness about a crime committed by another person. It is substantially the same though a fuller statement than that spoken to by P.W 20. It contains no admission of guilt by the speaker on the charge then under investigation, namely, murder, but it contains a narration of facts from which it is possible to infer that the speaker was privy to the offence of causing disappearance of evidence of murder. It is obvious that even if it is treated as a confession as to disappearance of evidence, it is of no value as against the first respondent on the charge of murder. The only question is whether it can be received as evidence against the second respondent herself on the charge under S. 201. I do not wish to express any decided opinion on this because the statement made to P.W 20, which is substantially the same, is admissible. But I may point out that the question is really not governed by the rules relating to recording of confessions and their safeguards provided either in S. 164, Criminal Procedure Code or S. 29 of the Evidence Act. Both those sections deal with persons who are accused at the time of making the statement and not with persons who are regarded as witnesses. In the case of persons accused of an offence, the Magistrate before recording that confession has to observe the safeguards mentioned in S. 164. S. 29 of the Evidence Act also deals with such persons. The present question, however, is whether inference of guilt which may be drawn from statements made by a person when he is examined as a witness may be used against him when he is tried as an offender. The only provision relating to this of which I am aware is the proviso to S. 132 of the Evidence Act which says that no answer which a witness is compelled to give shall be proved against him in any criminal proceeding except a prosecution for perjury. I do not see why this should not apply to examination of witnesses under S. 164, Criminal Procedure Code; but I do not wish to pursue this matter as the Public Prosecutor did not press for the admission of this statement and the question was not fully argued in view of the fact that the statement made to P.W 20 was held to be admissible. 1 therefore have put this statement under S. 164 out of consideration.

The question is whether on the remaining evidence a con-viction for murder can be sustained against either or both of the respondents. It is undoubtedly a case of suspicion of a very strong character against both the respondents; but to sustain a conviction suspicion will not do. For, where there is nothing to show which of several persons is guilty of a crime and there is nothing to show that they all participated in it, the only judicial conclusion possible is to acquit them all. This question is discussed by the learned Judge at the end of paragraph 25 of his judgment. He says, “Though it is proved that either the first accused or the second accused must have killed the boy I cannot say that both operated in the murder, the only element of doubt being who killed and who aided. As it is not possible to say for certain that both operated and we have to see which did the act, I have to say that though either must have done so, the quantum of proof is not such as to justify me in saying which of them did so.” As far as I know, this is good law and good sense. Mr. Grant referred to a passage from Stephen's Introduction to the Evidence Act which lays down the same thing: Woodroffe and Ameer Ali, 9th Edition, p. 30. In the Evidence Act the matter is dealt with in the definition of the word ‘proved’. A fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act on the supposition that it exists.

From the facts it is clear that it was possible for either of the respondents without the assistance of the other to kill the child. Keeping its head under water for a minute would suffocate it. There is nothing as far as I can see in the evidence to support the conclusion that both the respondents acted in concert in killing the child or had decided to put an end to the child before it was killed. All that we know is that both of them disliked the proposed adoption of the boy by Chinna Kondayya. But it is one thing to disapprove of a proposed adoption and quite another thing to murder the proposed adoptee on that account. The subsequent conduct of the appellants in disposing of the body is fully explicable on the ground that they are mother and daughter and that, if either of them had committed the murder, the other would readily help her to keep the murder a secret and escape detection. It would, in my opinion, therefore, be wrong from the respondents' disapprobation of the adoption and their acting together in disposing of the body to infer that they had acted in concert in killing the child. The first respondent is aged 60 and the second 40. The second respondent's accusation of her mother certainly cannot be considered as against the mother; and reading the evidence as a whole I cannot escape the feeling that ‘the lady doth protest too much methinks.’ If against her mother her statement is inadmissible, against herself it is worthless except to the extent already mentioned. In the absence of anything but suspicion on which I can found the conclusion that both the respondents acted in concert to kill the child, I cannot find that the act of one of them can be fastened on the other and, as there is nothing to show which of the two respondents killed the child, the only conclusion to which I can come is that neither of the respondents can be held guilty of murder. Horrified as I am at the brutal and devilish cruelty of one of these women, I would dismiss the appeal.

Coming to the Revision Petition, in the view taken by my learned brother on the question of the appeal, it was not necessary for him to deal with the Revision Petition which seeks to enhance the sentence passed by the lower Court under S. 201. Certainly on the finding arrived at by the learned Judge in paragraph 27 of his judgment, the sentence passed by him on the second respondent was farcically lenient. He awarded four years to the first respondent and simple imprisonment till the rising of the Court to the second. If he had passed the same sentence on the second respondent as he did on the first, probably nothing more would have been heard of this case. His ground for this lenient sentence is that nothing is alleged or proved against the second respondent except that she held a green cloth as a screen when the first accused began her march on the terrace to hide the trace of the crime of murder. This is not correct. Mr. Grant, as he was entitled to do on a notice to enhance the sentence, argued that the second respondent was not guilty at all and he urged that she had taken no part in any act which is necessary to constitute the offence and that she had not caused any evidence of the crime to disappear with the intention of screening an offender from punishment. As regards this, it is sufficient to refer to her statement to P. W. 20, in which she said, “I asked my mother what is in the water trough. My mother told me that she threw Ramudu into it. Do not cry out. She said that she did so and that I should not expose her as she was my mother. She said that she would set right the matter and come; and asked me to be outside and take part in the search for the boy by his people. They were searching for Ramudu outside. I also was searching saying, ‘Where is Ramudu?’ Then I went into my house again. I saw the body of Ramudu placed near the water trough on the slab floor by my mother. My mother asked me to go outside because if both were inside they would be suspected, and to be crying along with others. She said that she would set right everything. A little later I went in. I saw the body kept near the said trough. My mother dug a pit in the sand trough. My mother asked me to go out saying that she would follow me. I was outside. My mother then came out a little later and told me that she set right everything.” It is clear from this statement of the second respondent herself that she was present when the body we® buried in the sand trough and that both immediately before and after, she was acting in concert with and helping her mother in secreting the body by playing her part outside the house, pretending to be looking for the boy and crying as if she was sorry for his disappearance. On the evidence there is no doubt that both the respondents took part in burying the body and so causing disappearance of evidence of the offence and there can be no doubt of the intention to screen the offender from punishment. But it is suggested that it is illogical to punish both the respondents under S. 201 because one of them must have been the murderer and it is not legal to punish the person guilty of murder of the offence of causing disappearance of evidence of the offence and hence it is suggested that, as it is not possible to say which of the two respondents was guilty of the murder, it is not possible to say which of them is punishable for causing disappearance of evidence. The fallacy underlying this reasoning is that it ignores that, when it is held that neither of the respondents can be convicted of the principal offence of murder, it follows that neither of them is legally guilty of the principal offence. Therefore when the respondents are held guilty under S. 201 neither of them is a person guilty of the offence of murder.

I therefore think that both the respondents were properly convicted under S. 201. As for the sentences, having regard to the first respondent's age, it seems hardly necessary to enhance her sentence beyond the four years already awarded; but, as regards the second respondent, I would enhance her sentence to seven years' rigorous imprisonment.

Waller, J.—I have now had the advantage of reading my learned brother's judgment, but regret to say that I remain of the opinion that the line of reasoning, which led to the acquittal of the respondents on the charge of murder, must lead to their acquittal on the charge under S. 201, Indian Penal Code, also. If they can both be convicted on the later charge, as a result of their acquittal on the former, it seems to follow that they were screening some third party, who was the real murderer. That, however, is no one's finding. Th finding is that one or other of them commit-ted the murder, but that both must be acquitted, because it is impossible to decide which of them actually committed it. On those assumptions, I do not see how the finding in regard to the charge under S. 201, Indian Penal Code, can be different. It must, in my opinion, be that one or other of the women committed that offence, but it being impossible to say which of them did so, both must be acquitted.

As regards the charge of murder, the assumption which seems to me unjustifiable, underlying the Sessions Judge's conclusion is that only one of the women could have committed the murder. That may be, to a certain extent, that is to say, literally correct; for it does not take two women to kill a child of three, but why should it be assumed that the other could not have been privy to it? One may be guilty of a murder without physical participation in it. Let me put the case in this way. Suppose that the 1st respondent had been the only accused in the case and that the 2nd had been away from home on three critical days. Leave all the circumstantial evidence as to motive, opportunity and conduct as it is. Would the Sessions Judge have hesitated to convict the 1st respondent of murder? I imagine not. And similarly, if the 2nd respondent had been the only accused. What makes the difference, where both are charged together on exactly the same evidence of motive, opportunity and conduct, which is equally applicable to both? I shall be told that, in the cases stated, there can be no difficulty, as only one of the women could have committed the murder. That is quite correct, but why carry that assumption into our present case, where both of the women are charged and the evidence against both is equally strong? When only one person is charged and she is the only person that could have committed the crime one assumes without difficulty that she committed it. When two are charged with the crime and they are the only persons that could have committed it, I can see no reason why the assumption should be not that both committed it, but that only one did so. The case, quoted by Mr. Grant, which is stated in Stephen's Introduction to the Evidence Act, seems to me to be beside the point. It begins “Let the question be whether A did a certain act; the circumstances are such that the act must have been done by somebody, but it can only have been done by A or B. If A and B are equally likely to have done the act, the matter cannot be carried any further.” That may be perfectly correct, when only A is being charged with and tried for the act, but what if B is being tried jointly with him on the evidence of circumstances, which incriminate both equally? In that case, there seems no reason why the Court should seek to differentiate between them or assume that the act could have been done by only one of them.

I would, as I have already said, convict both of the respondents of murder and acquit them on the other charge. If on the other hand, their acquittal of murder is right on the ground stated, they should, in my opinion, be acquitted on the other charge on the same ground. As my learned brother disagrees with me on both points, the case will have to go before a third Judge.

Mr. Ethiraj has now drawn my attention to the decision in Chinna Gangappa, In re (1), which lays down that there is nothing in the language of S. 201, Indian Penal Code, that prevents the principal offender being convicted under that section. With great respect, it seems to me that the illustration to the section indicates very clearly that it applies only to persons other than the principal offenders.

And this Appeal and the Criminal Revision Petition coming on for hearing under S 429 of the Code of Criminal Procedure, 1898, the Court (Curgenven, J.) delivered the following

JUDGMENT

This case comes before me owing to a difference of opinion between Waller and Pandalai JJ. The facts have been stated fully in the judgment of the learned Sessions Judge and briefly but sufficiently in that of Waller J. On Thursday the 2nd April 1931 a male child aged 3 entered or was decoyed into the house of which the two respondents, who are mother and daughter, are inmates, and there murdered. The motive for the crime was undoubtedly a wish of the husband of the 2nd respondent, Kondayya, to adopt the boy, which for easily understood reasons would be objectionable to the two women. They were tried on charges both of murder and of causing the disappearance of evidence with the intention of screening the offender from legal punishment under Ss. 302 and 201, Indian Penal Code. As regards the former charge, the learned Sessions Judge found that the child must have been killed either by both the women together or by one of the two; but he was of opinion that the evidence did not exclude the possibility that one might have committed the murder without the assistance of the other, so that in his view it was not possible to convict either of that offence. He convicted them both under S. 201, Indian Penal Code, and sentenced the 1st respondent to 4 years' rigorous imprisonment, imposing upon the 2nd respondent the nominal sentence of simple imprisonment until the rising of the Court. The Public Prosecutor has appealed against the order of acquittal under S. 302, Indian Penal Code, and for enhancement of the sentences passed under S. 201, Indian Penal Code. There is also a criminal revision petition presented by the parents of the child, praying for similar modifications in the orders passed.

When the case came before the Criminal Bench of this Court, Waller J., after summarising the facts drew the inference from them that both the respondents must have been acting in concert throughout. He relied upon the considerations that both shared in the motive and were alone together in the house and he was unable to believe that either would have run the risk of killing the boy and hiding his body without the knowledge and connivance of the other. It had also been proved that both of them had subsequently made false statements when asked if they had seen the child and had acted together in disposing of the body. The learned Judge concludes with the observation, “Probably only one of them actually committed the murder—it does not matter which of them it was—but I do not doubt that the other connived at it.” The view taken by Pandalai, J., agreed with that of the Sessions Judge, that the evidence was insufficient to show in the case of either of the respondents that she actually participated in the crime. It was clear from the facts, as indeed was conceded by Waller, J., that it was possible for either of the respondents to kill the child without the assistance of the other, and although both may have had a motive to do away with it, that circumstance did not show that both had in fact participated in the act. The subsequent conduct of the respondents in disposing of the body was in Pandalai, J.'s view fully explicable on the ground that they are mother and daughter and that if either of them had committed the murder the other would readily help her to keep it a secret to escape detection.

Unless we are to gather the facts from a statement made by the 2nd respondent, there is nothing beyond circumstantial evidence to show in what manner the death of the child was caused. The 2nd respondent's statement certainly cannot be used against the 1st respondent and I think that Waller, J., has adopted the best course in ignoring it altogether. The evidence shows that the child was last seen in the street outside the house at about 6 P.M on the Thursday. There is nothing to show how it was induced to enter the house. We can only presume that the murder was committed that evening from the state of decomposition in which the body was subsequently found and from the improbability that the child would be kept alive in the house for any length of time. Even apart from the 2nd respondent's statement there seems good ground to suppose that it was drowned and that it was subsequently buried for the time being in a trough of sand used as a stand for pots in the kitchen. From there it was taken, almost certainly on the Sunday morning, carried upstairs on to the terraced roof of the house and thrown on to the adjoining roof, which belongs to the house occupied by the child's parents. I shall have to refer later more specifically to the evidence relating to the disposal of the body and it is sufficient to say here that both the respondents are shown by the evidence to have taken part in the operation. So far as the charge of murder is concerned these are in substance the facts upon which a decision has to be based. There is no proof direct or circumstantial to connect either of the women in particular with the physical act of murder, and in fact the prosecution has not even shown that they were both in the house at the time when it was committed. The case is admittedly not one giving rise to any presumption that two persons must have joined in the act itself, and in fact Waller J. has conceded that probably only one of them committed it. That being so, I am unable to say that the evidence is sufficient to establish that both the women took such part in causing the death as would justify the conviction of each of them of the offence of murder, and it need scarcely be said that no other offence can be in question. The facts proved appear to me compatible with the theory that either may have killed the child without the assistance of the other and I think that the subsequent conduct of both the women is explicable otherwise than on the supposition that they both did take part. I agree accordingly with Pandalai, J., that so far as they relate to the acquittal on the charge of murder the appeal and the criminal revision petition must be dismissed.

The learned Judges have also differed upon the sustainability of a conviction under S. 201, Indian Penal Code, although they are agreed in accepting the evidence upon which the charge, is supported. It is of course open to the respondents upon this reference to show that that evidence should not be believed. It is adduced to prove that on the Sunday the two women joined in removing the body from the sand-bath in which it was concealed and in taking it in a basket on to the roof whence it was disposed of as described above. That it was so taken there is indisputable circumstantial evidence to show, and it cast hardly be disputed too that the act must have been committed not long before the discovery of the body at about noon on Sunday. The complicity of both the women is sought to be proved by the evidence of three witnesses, P. Ws. 2, 3 and 12. The first of these witnesses, P. W. 2, deposed that he was easing himself near a dust-bin at the point marked D in the plan when he saw both the women upon the terrace of their house, the 1st respondent carrying a basket from which the feet of a child protruded and the 2nd respondent, holding in front of it as a screen a green cloth. The 1st respondent threw the body out of the basket on to the terrace of P. W. 1, the child's father. It was common knowledge that the child had disappeared the evening before the witness cried out that they were throwing out the body. He then went to P. W. 1's house and gave the information, not to P. W. 1 himself who was inside but to one Abbayi, P. W. 22. There is some conflict as to whether P. W. 1 himself heard what was said but I do not think it is of any consequence, as he was told immediately by Abbayi and receipt of the news was followed by discovery of the body on the terrace above. Nor do I think that the evidence of this witness is to be disbelieved because the Police did not record a statement from him until 5 P. M. that day. He himself says that he stated the facts to the inquest panchayatdars, which is very probably true, and it appears that the Circle Inspector, who really investigated the case, did not arrive until 5 P. M. The evidence of P. W. 3 is to the effect that he was writing upon his terrace when he heard P. W. 2's cry and looking up saw both the respondents upon their roof, the 1st respondent with a basket in her hands followed by the 2nd respondent. He went upon P. W. l's terrace and saw the body of the child there. He was not examined by the Police until the following day as he says he went to his field but no other ground has been adduced why he should not be believed. The third witness, P. W. 12, Khader Mohidin Sahib, is a Bench Magistrate and since there is no reason for distrusting his evidence it must be taken as strongly corroborative of that of P. W. 2, since he states that he heard the latter cry out “They have thrown the boy” and went to the place where the body lay. The evidence of these three witnesses has been accepted both by the learned Sessions Judge and by the two learned Judges of this Court and I can find no reason to differ from the view that it is true. It effectually establishes that both the respondents took part in disposing of the body.

There then remains the point as to which Waller and Pandalai, JJ., are in disagreement, whether the respondents should have been convicted under S. 201, Indian Penal Code, of causing the disappearance of evidence of the offence with the intention of screening the offender from legal punishment, it being clear that one or other of them, if not both, committed the murder. Upon this point there are undoubtedly differences of judicial opinion. There is in the first place a difference of opinion upon the question whether, where a person has himself committed the offence, he can be convicted of causing the evidence of it to disappear. That the section would not include the special case of the offender himself was held in an early case of the Bombay High Court, Beg v. Kashinath Dinkar . The course of judicial opinion upon this question has received consideration in a very recent case of this. Court, decided by Wallace and Jackson JJ., Chinna Gangappa In re (2), and these learned Judges have given their reasons for holding that Ss. 201 to 203, Indian Penal Code, are applicable to a person who is guilty of the main offence, though they add that in practice Courts will not convict an accused both of the main offence and under these sections. The grounds of that decision have been criticised before me, but I consider that, sitting as a single judge, I am bound by it. I do not for my part however find it necessary to carry the argument quite so far as to include a person who is guilty,—that is to say, who has been judicially proved guilty,—of the main offence. Cases in which such proof has been or could be given rarely or never give occasion for the application of Ss. 201 to 203, Indian Penal Code, the sort of cases in which necessity for the application of the sections arises is where the evidence falls short of proof though it may have created a more or less strong suspicion, and the accused has been acquitted. Special instances, but I think special instances only, of this class are those (like the present) where it is clear that the primary offence must have been committed by one or more of a relatively small number of persons whom, or some of whom, it is sought to prosecute under one or other of these sections. Although it may be true that the conviction of all such persons of the secondary offence must involve the conviction of at least one who has committed the primary offence, I do not think that that circumstance affords a good judicial ground for refusing to convict. We have to consider the case of each accused separately and if, say, he has been acquitted of murder, the prosecution is entitled to ask the Court to presume that he is not guilty of that offence; and if he wishes to escape conviction under S. 201 it lies upon him to rebut that presumption by showing (which of course he will not usually do) that he was a principal and not a mere accessory. The Court is not bound to refrain from convicting unless and until it is satisfied that the accused is innocent of the main offence. I do not think that mere suspicion, however strong, can form the basis of a rule of law, and if suspicion is to form the test where is the line to be drawn? If the rule is to apply to each of two persons, is it to apply to each of twenty, to each of a hundred, to all the occupants of a village? It is easy to imagine cases which would reduce the principle to an absurdity.

The case which has been cited as authority against accepting this line of reasoning is Torap Ali v. Queen Empress . There too the evidence for the prosecution pointed conclusively to one or other of two persons as being the actual murderer, but it was impossible upon the evidence to show which of their^ had caused the death. They were accordingly acquitted on the charge of murder and originally convicted under S. 201, Indian Penal Code. This conviction was set aside on the ground that the section referred to persons other than the actual criminals, who by their causing the evidence to disappear, assist the principals to escape the consequences of their offence. A perusal of the judgment in this case shows that it is based purely upon the application of this principle, relying upon some earlier cases, of which Reg v. Kashinath Dinkar already referred to is one. The further question is not considered, whether where each or all of the accused have been acquitted, there is room for the application of the principle. It has been pointed out to me that the report shows that the Deputy Legal Remembrancer did not argue the case on behalf of the Crown, though I do not think that it would now be said that the case for a different view was in fact unanswerable. It deserves notice that the question whether the offence of which evidence had been caused to disappear was committed by the accused themselves was definitely answered in the affirmative in Reg v. Kashinath Dinkar and that that decision went purely upon the footing that the section would not apply to the actual criminals. The same is true of the other authorities upon which the learned Judges rely, and since therefore the question as to the judicial effect of an acquittal of all the accused on the main charge was not even considered in Torap Ali v. Queen Empress , I do not think that it really affords much if any authority upon this point. Cases directly in point are Rup Narain Kurmi v. King-Emperor* (4). These decisions have held that where it is impossible to say definitely that a person has committed the principal offence, he cannot escape conviction under S. 201 merely because he has been charged also with the principal offence, or because there are grounds for suspicion that he might be the principal culprit. I may refer to the judgment of Fazl Ali, J., in the last cited case for a full discussion of the question. I respectfully agree with the views expressed by that learned Judge, which are also the conclusions of Pandalai, J., in the present case. Nor do 1 think that it can be contended that the principle losss its application where a single trial embraces charges both under S. 302 and S. 201 Indian Penal Code. An instance of such a case is afforded by the Privy Council Judgment in Begu v. The King Emperor , where their Lordships held that even without a further charge the conviction of persons acquitted under S. 302 of an offence under S. 201 was warranted by S. 237 of the Code of Criminal Procedure. I conclude accordingly that there was no legal impediment to the conviction of the respondents Under S. 201.

As regards the 1st respondent, I do not find sufficient reason to enhance the sentence of four years' rigorous imprisonment passed upon her. The sentence passed upon the 2nd respondent is utterly inadequate. There do not appear grounds for distinguishing in this respect between the two cases. I enhance the sentence passed on her to one of rigorous imprisonment for four years. To this extent the appeal and revision petition are allowed, and otherwise dismissed.

N R. R.Order accordingly.