Norman Macleod, Kt., C.J.
1. The three accused were tried before the Sessions Judge of Bijapur on a charge of murder as well as on an additional charge framed by the Sessions Court under Section 201, Indian Penal Code, of causing disappearance of evidence of the commission of the offence of murder in order to screen the culprits. The second and third accused were acquitted on both charges. The first accused was acquitted on the charge of murder, but convicted under Section 201, Indian Penal Code. It was argued for the accused that a conviction under Section 201, Indian Penal Code, could not be legal as he was suspected to be one of the murderers. I do not see myself any reason why a person should not be charged first with having committed a murder; secondly, in the alternative, if the evidence does not show that he has committed the murder, that he has been guilty of causing evidence to disappear with the intention of screening the offender; in other words, of having been an accessory after the fact.
2. In Bucha v. King-Emperor (1904) P. R. 1 it was held that when an accused person has been acquitted of a charge of committing a crime, the fact that he had been suspected and tried of the principal offence would not prevent his conviction under Section 201, Indian Penal Code, if there is clear proof that he has caused evidence to disappear in order to screen some unknown offender from legal punishment. In that case the appellants were charged only under Section 302, Indian Penal Code; but the Sessions Judge having acquitted them of the offence of murder convicted them under Section 201, Indian Penal Code. In appeal the learned Judges very carefully discussed all the authorities on this point, and we need say no more than that we agree with the conclusions at which they arrived as set out at p. 6 of the report:
The evidence was, however, held to be sufficient to prove that a murder had been committed. The evidence against two, the appellants, was held to be sufficient to establish an offence under Section 201 to have been committed by them, in respect of the murder. We see nothing in the law, or in any of the rulings we have discussed, which lays down that such a conviction as the present is not a proper one, provided always that the prisoner has not been prejudiced in his defence. The appellants were charged only under Section 302, but the evidence they had to meet clearly included the concealment of the body of the murdered man, and we think that they have been in no way prejudiced, that the case was covered by Section 237 of the Criminal Procedure Code, and that the appellants have been properly convicted.
3. In Queen-Empress v. Limbya (895) U Cri. 799 it was held that a conviction on a charge of having been an accessory to an offence under Section 201, Indian Penal Code, is not illegal merely because it is suspected, but not proved or admitted, that the accused committed, or was one of the several persons who committed, the principal offence.
4. In this case, the mere fact that it was believed at first that the first accused was concerned in the actual murder would not debar the Court from excluding all the evidence against the accused on the charge of murder, and convicting him of the charge under Section 201, Indian Penal Code.
5. To the same effect is the decision of the Calcutta High Court in Teprinessa v. Emperor I.L.R. (1918) Cal. 427 where it was held that although there might be circumstances of grave suspicion that a person was the murderer, his conviction under Section 201, Indian Penal Code, would not be vitiated by the existence of such circumstances.
6. If the accused had been charged with murder alone and had been acquitted, there would be no legal obstacle in the way of his being charged again with an offence under Section 201, Indian Penal Code. As pointed out by the learned Judges of the Chief Court of the Punjab the real test is whether the accused has been prejudiced by the alternative charge made in one trial. I do not think in his case there was any such prejudice and, therefore, the appeal will be dismissed.