1. In this case the accused, whom I shall call Dada Saheb, was charged before Mr. Fry and two assessors at Satara as follows:-
That you, knowing or having reason to believe that an offence, i.e., the murder of Narayan Sonar, had been committed, caused evidence of the commission of that offence to disappear with the intention of screening the offender in that you ordered the corpse of Narayan to be burnt with undue haste and ordered the cleansing of the blood stains in Mahadeo's temple and further with the same intention gave information respecting the offence which you knew or believed to be false in that you caused a panchnama to be framed in which an opinion was expressed that death was due to snake-bite.
2. It appears that the deceased Narayan Sonar was a young man and an actor by profession and that he died either on the night of the 18th or morning of the 19th March 1905 and there is no doubt that there are suspicious circumstances with regard to his death.
3. The present accused Dadasaheb was, in the first instance, put up for trial before Mr. Fry and two assessors on a charge of abetting the murder of Narayan. On that charge he was acquitted. He was then put up for trial on a charge under Section 201, Indian Penal Code. In an enquiry under Section 201, Indian Penal Code, it has been held repeatedly that the concealment must be concealment by a third person and not by the person who is Charged with having committed murder and aided or abetted the murder. 'With regard to a charge under Section 201 Indian Penal Code, it is necessary that the disappearance of evidence should be after the offence and in the present case the evidence is said to have been caused to disappear after the offence.
4. Unfortunately when this man was put up for trial under Section 201, Indian Penal Code, a request was made by his pleader that the evidence recorded against him in the previous trial of abetment should be accepted as evidence in this case as it would save time and expense, and the Government Pleader acceded to this request. The result was that a mass of evidence, irrelevant to the charge under Section 201, was placed before the Judge and the assessors in this trial. The question is whether this is an irregularity cured under Section 537, Criminal Procedure Code, or an illegality. The only case on this point is Subha v. Queen-Empress ILR (1885) Mad. 83. The above cited case is practically the same as in this case, but we think the head-note in that case is wrong, the word 'illegal' there should be 'irregular'. In that case the evidence-in-chief which was given before the Magistrate was read at the request of the Pleader. Evidently the Judges could not have held the procedure there 'illegal', because, if illegal, the trial would have been a nullity. That case is a strong authority to show that the trial may be irregular but not illegal. The irregularity, therefore, herein is cured by Section 537, Criminal Procedure Code.
5. We, however, must say that the procedure which was adopted in this case must never be followed under any circumstances whatever. The evidence of all the witnesses before the Judge and assessors must be viva voce, except in the case of evidence given by a medical officer, which under certain circumstances need not be viva voce.
6. The irregularity in the present case was waived by the Government Pleader and it cannot be said that this irregularity occasioned a failure of justice so far as the Crown is concerned. On the contrary we rather think that it was the accused who was prejudiced, as a mass of evidence, wholly irrelevant to the charge, was placed before the assessors, and if he had not been acquitted, it might have placed him in a grievous position and there would have been a failure of justice so far as he was concerned. He has been acquitted and certainly the Grown has not been prejudiced. Therefore this irregularity is cured by Section 537, Criminal Procedure Code.
7. Now with regard to the actual evidence bearing on the charge it is not necessary to go into it at length. The first offence is that he ordered the corpse of Narayan to be burnt with undue haste. There is no evidence that the accused gave any direct orders as to the burning of the corpse and it is very doubtful whether he gave any orders at all on the subject.
8. There is not a single witness in this case upon whose testimony we can with any certainty rely. Now supposing that he did give such orders, it is evident that he did not do so until the Panch had viewed the body and the scene and the Panchnama had been made at 11 A.M. on the 19th.
9. Now, with regard to the offence of getting the place cleaned and removing all traces of blood, it does not seem that the accused gave any orders to that effect until after the Panchnama had been signed by the Panch. It is not at all unnatural that the accused gave such orders considering that the body was in a temple and in the premises of the accused. The circumstance in favour of the accused is that he did not give any orders until after the members of the Panch had done all that was necessary.
10. It is, therefore, clear that in either of the above cases the accused has not committed any offence under Section 201, Indian Penal Code.
11. The last charge is that the accused influenced the members of the Panch to state that the deceased had met his death by snake-bite. There is no evidence by which we could convict the accused that he gave any such direction. It is all imaginary. We are asked to believe that he influenced the various village officers, his brothers and others present to make a false statement : he could never have succeeded unless he bribed them all and there is no suggestion of any bribe. It is also suggested that he caused the last para in the Panchnama to be inserted to the effect that death was due to snake-bite. This cannot be accepted because although this para may be in fainter ink than the rest, still looking at the account in the previous paras of the Paachnama which say that the body and eyes of the deceased were green and yellow, that his nails were green and that water was coming from his mouth, there is no doubt that the Panch did intend in the first part of the Panchnama to say that he died of snake-bite and this last para is in accord with the previous paras.
12. This charge, therefore, must also fail.
13. Then it is alleged that a pistol was found near the body of the deceased and that the accused took charge of it. There is no charge on this against the accused and so we need not say anything about it.
14. We accordingly dismiss the appeal and acquit and discharge the accused.
15. I concur.