Mohammad Ismail, J.
1. Thakur Singh, Pyare, Bed Ram alias Bidhey and Ghariba appeal from their conviction and sentences under Sections 201 and 385, I.P.C. This case was started on a complaint made by Chunni, brother of Khamani deceased. The complaint was instituted under Section 302, I.P.C., but the accused were committed to the Court of Session under Section 304, I.P.C. The learned Sessions Judge added a charge under Section 201, I.P.C. There was however no charge under Section 385, I.P.C. The facts that have given rise to this appeal may be briefly stated. Thakur Singh, appellant 1, is one of the zamindars of village Abheypura. The other three appellants are the servants and tenants of Thakur Singh. On 11th November 1937, at 6.30 P.M. Chunni lodged a report at police station Amanpur, in the district of Etah, against all the four appel. lants. In the report, it was stated that appellants 2 to 4 were sent by appellant 1 on the preceding day (10th November) after sunset to call Khamani to the zamindar'S1 house. The three appellants caught hold of Khamani and forcibly took him to the zamindar. The complainant Chunni accompanied them to see what the matter was. It was stated that Khamani was beaten under the orders of Thakur Singh. The complainant ran away through fear. The next morning when Chunni went to the jungle to ease himself he saw the dead body of his brother hanging on a tree with a rope tied round the neck. Then certain persons were named who arrived at the place where the dead body was hanging. Later, an incident said to have occurred three days earlier is described in the report. It is stated that three days earlier Thakur Singh imposed a fine of Rs. 5 on Mani Ram and the complainant and had them beaten. Reference was made to another incident in which one Jiwa Ram, a tenant, was fined Rs. 3 by Thakur Singh and the amount was actually realized. The report winds up with the following statement:
The persons who have come here with me had also seen the occurrence when Thakur Singh himself had beaten my brother and had got him beaten by others. After my brother had been beaten to death Thakur Singh got his dead body hung up on a tree at some time which is not known to me. I have come to make a report.
2. The persons accompanying the complainant were Khushali, Liladhar, Mani Ram, Jiwa Ram and Mauji Ram, all Kachhis by caste and residents of Abheypura. The complainant himself is a Kachhi. The second officer, in the absence of the station officer, took over the investigation of the case and proceeded to the village. He sent the dead body for post-mortem examination and recorded the statements of practically all the prosecution witnesses. Prom the postmortem report, which was verified by Dr. Ranado, Civil Surgeon, Etah, it appears that the cause of death could not be ascertained. The Civil Surgeon recorded his opinion in the post-mortem report as follows:
No cause can be ascertained. No evidence of death by hanging. The man may have died of shock. Viscera has been preserved for chemical examination if considered necessary.
3. The viscera was never sent for examination to find out whether the death may have been caused by poison. It may be noted that the deceased was a man of about 30 years of age, well built and muscular. The doctor in his examination in Court further amplified his post-mortem report and stated that the deceased had not committed suicide and the marks on the neck were post mortem. In cross-examination the doctor stated:
It is possible for the man to have died of heart failure. That the hearts were empty shows that it might have been a case of heart failure. That is the only symptom of heart-failure. There was either external or internal injury. Shock is a cause of heart-failure, though it is not the only cause. There was no sign of shock on the body and it is act necessary that in every case of shook there should be signs.
4. On this evidence, it is manifest that no case under Section 304 could be made out. The police as a result of their investigation submitted their report in favour of the accused persons. The case, as stated above, was started on the complaint of Chunni. Before examining the evidence adduced in support of the prosecution version, I propose to examine certain legal points that have been urged in the course of argument. It is stated that the learned Sessions Judge had erred in convicting the appellants under Sections 201 and 385, I.P.C. Section 201, I.P.C., 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 off ender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false....
5. Now originally the prosecution case was that the deceased was murdered by the appellants and the dead body was removed by the appellants to remove the evidence of the murder. In view of the medical opinion and the finding of the lower Court, it cannot be argued that the intention of the appellants by removing the body from the house of Thakur Singh to the nim tree was to remove evidence of the commission of the offence of murder. I assume for purposes of argument that the deceased died at the house of Thakur Singh. Even if the deceased had been murdered, in my opinion the removal of the corpse of the murdered man from the place of murder to another place a few yards away will not amount to causing disappearance of any evidence of the commission of the murder. However on the evidence it cannot be suggested that the accused was done to death. It is alleged by the prosecution witnesses that the deceased was beaten under the orders of Thakur Singh. The body was examined by the Civil Surgeon and no marks of injuries were discovered on the body of the deceased. That being so, the removal of the dead body from one place to another could not have been of any assistance to the accused and could not amount to causing disappearance of evidence. The charge under Section 201, I.P.C., added by the learned Sessions Judge is in the following items:
And that you on or about 11th November 1937 knowing that an offence has been committed, did cause the dead body of Khamani to disappear with the intention of screening yourself from legal punishment and thereby committed an offence punishable under Section 201, I.P.C. , and within my cognizance.
6. It is not specified as to what offence had been committed from which the accused had tried to screen themselves by causing the removal of the dead body from one place to another. I have perused the judgment of the learned Sessions Judge with care. He has dealt with this aspect of the question at p. 90 of the paper-book. The learned Sessions Judge placed before himself two questions : (1) Whether the dead body is the evidence of the commission of some offence or not? (2) Whether this dead body was removed by the accused from one place to another or not? The answer to the first question was in the affirmative. In dealing with this question the learned Sessions Judge at p. 92 remarked:
The accused must have known full well that the dead body of Khamani was the evidence of the commission of some offence. Now, what is that offence, the same can be safely gathered from the evidence of the prosecution witnesses. This offence was nothing but extortion.
7. The answer to the second question was also in the affirmative. The dead body in certain circumstances might certainly be good evidence of the commission of an offence : but in this case the learned Sessions Judge has not pointed out how the dead body could prove the commission of an offence under Section 385. As stated above, there wore no injuries noticed by the doctor on the body of the deceased. In my opinion, the conviction of the appellants under Section 201, I.P.C., cannot be sustained. The next question for consideration is whether the accused persons can legally be convicted under Section 385, I.P.C. They were never charged under this Section. No questions were put to any of the accused persons either by the Magistrate or the learned Sessions Judge with reference to the evidence led to prove the offence under Section 385, I.P.C. The accused were never given any opportunity to meet the case under this Section, and in my opinion, the learned Sessions Judge was not justified in convicting the accused under this Section without framing any charge and giving the appellants an opportunity of meeting that charge. Section 233, Criminal P.C., provides:
For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 286 and 239.
8. Sections 234, 235 and 239 need not be referred to. Section 236 obviously can have no application because in this case there was no doubt as to what offence had been committed. According to the prosecution, the offence of culpable homicide had been committed, though on evidence it was not substantiated. Similarly, according to the prosecution, an offence under Schedule 385 was committed. It was therefore the duty of the prosecution to ask the Court to frame charges under these two Sections separately. In order to bring the case under Section 237, it is necessary that Section 236 must apply. As stated above, in my opinion, Section 236 has no application. Section 238 provides:
When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
9. Now, it cannot be seriously argued that Section 385 is a minor offence with particulars common with an offence under Section 300, Penal Code. Both of these Sections have got distinct and independent ingredients. An offence under Schedule 385 brings into the field an entirely different set of circumstances which have nothing whatsoever to do with an offence under Section 300. In, my opinion, the conviction of the appellants under Section 385 cannot be sustained because they were never charged under that Section and no opportunity was given to them to meet that charge. The disregard of an express provision of law as to the mode of trial is not a mere irregularity which could be remedied by Section 537, Criminal P.C. The next question for determination is whether on the evidence available in this case it will be advisable to order a retrial of the appellants under Section 385, Penal Code. In my opinion, it would be wholly unsafe to depend on the testimony of the prosecution witnesses who have undoubtedly tried to magnify the case and to improve upon it at different stages of the trial. A brief reference to the evidence on this point will be sufficient to indicate that the witnesses are partisans of Chunni and have resiled from their previous statements. Chunni himself was examined by the investigating officer. Prom his statement it appears that the witnesses named by him were not witnesses of the incident that happened at the residence of Thakur Singh. Chunni stated to the Sub-Inspector:
The witnesses mentioned by me are the persons who saw the dead body hanging on the nim tree in the morning.... Nobody saw them hanging it.
10. Liladhar, (P.W.) before the police stated that Thakur Singh sent for the deceased in the morning and demanded Rs. 10 from him on account of the damage caused to his field. He further stated that all the three persons seized the deceased on the way and took him to the chaupal or Thakur Singh. Some time after that Chuni came back and said that Thakur Singh was getting his brother beaten. He did not know where he was during the night. He did not go to the chaupal of Thakur Singh nor did he see them beating the deceased. In his statement before the Court he adhered to this part of the statement. Mani Bam, another prosecution witness, stated before the police, vide Ex. D-4:
I did not see anybody beating the deceased at the chaupal of Thakur Singh.... Day before yesterday Beda, chaukidar, Ghariba, faqir, Piara, sweeper were taking Khamani with them. Chunni was following them, I did not see anything else.
11. In his statement before the Court he gives a graphic description of how the deceased was hung up on a him tree by the accused persons. He stated that he remained concealed owing to fear. From this it is manifest that an effort has been made to produce suborned evidence. Another prosecution witness is Mauji Ram. He may be styled as a chance witness. This man is a teacher by profession and gives private lessons to the boys in the village. During the evening he says that he was on his way to Ganga Prasad to demand arrears of his pay when he saw the occurrence. At the end of his statement to the police he stated : 'I heard the sound of slaps, but I do not know who slapped who. It was dark there.' In his statement before the Court he pretends to have seen the entire occurrence. In my opinion, the evidence in support of the prosecution is neither independent nor reliable. There is not the least doubt that something did happen on the day of occurrence which caused bad blood between Thakur Singh and his servants on the one side and Chunni on the other. The trespass into the field of Thakur Singh, which was the cause of the whole trouble, was done by Chunni and his companion Mani Ram. It does not appear why Khamani should have been selected for maltreatment by Thakur Singh, as alleged by the prosecution. I am not prepared to hold that the entire story given by Chunni is unfounded; but it is very difficult to say with certainty what portion is true and what is false. Under these circumstances, I do not feel justified in ordering a retrial of the appellants by the Court below. In the result, I allow the appeal, set aside the conviction and sentences imposed upon the appellants and acquit them. The appellants are on bail. They need not surrender to their bail the bail bonds are discharged.