Tek Chand, J.
1. The appellants are two brothers, Chandar aged 19, and Pearey aged 24, and they have come up in appeal to this Court from their conviction under Section 201, Indian Penal Code. The Sessions Judge, Rohtak, has sentenced them to undergo seven years' rigorous imprisonment each.
2. The facts of this case are that the two-accused appellants of village Khewra were sent up to stand their trial under Section 302/34 of the Indian Penal Code for the murder of one Teku, Brahman of the adjoining village Chauhan Joshi. On the early morning of 8th October, 1956 P.W. 2 Yad Ram of village Rai noticed a dead body wliich had on it injuries caused by a sharp-edged weapon lying by the side of the Grand Trunk Road between miles 21 and 22. He reported the matter to the police and the Sub-Inspector recorded Exhibit P. A-, the first information report, and proceeded to the spot where he prepared the injury statement, Exhibit P. S., and the inquest report, Exhibit P. T, and sent the dead body for post mortem examination.
As on account of the rains the land where body was bound, was soft, footprints were also-noticed and the police took care to lift them by means of moulds which are Exhibits P. 1 to P. 3. The body had been identified by Yad Ram to be that of Teku. Inquiries during the course of the investigation led the Sub-Inspector on 10th October, to Giani, a chowkidar. The information received from him brought the Sub-Inspector into contact with P.W. 10 Ram Sarup and P.W. 11 Sri Chand.
3. According to Ram Sarup, he was cutting his jowar crop, four or five days previous to his being examined by the Sub-Inspector, when he noticed that Chandar accused along with his brother Santu brought their goafs which trespassed the fields of Teku deceased- Teku abused them and gave slaps to Santu and snatched a dau, which was a sharp-edged instrument, from him and did not return it despite their requests. Ram Sarup P.W. 10 was asked to use his good offices in getting the return of the dau, but Teku despite the requests from Ram Sarup declined to return it as he felt that the flock of the accused had damaged his crop.
Some hours later when they were about to-leave for their village, Ram Sarup P.W. 10 stopped for some time with Sri Chand P.W. 11 and his brother Kali Ram in the nearby field where Teku also joined them. The latter did not accompany his three companions, as he wanted to-keep watch for some lime more, lest further damage was done to his crop by the goats of Chandar and his brother. While the three persons named above were returning to their village, they came across Chandar and Pearey accused who told them that they were proceeding to get their dau back from Teku. Two days later P.W. 10 learnt of the death of Teku and told Giani Chow-kidar about having witnessed the quarrel between Chandar and his brother on the one side and Teku on the other. P.W. 11 Sri Chand supported the story given by Ram Sarup in all material particulars.
4. After recording the statements of these witnesses, the Sub-Inspector went in search of the accused, but not finding them in their villagehe left for the police station. That night, it is slated, Rattan Lal P-W. 3. Duli Chand P.W. 4 and Chct Ram P.W. 5, and Sajjan Pal, who was given up by the prosecution as having been won over but was examined as C.W. 1, were sitting in the chaupal and talking. Accused Chandar and Pearey went there and called out Rattan Lal and told him that they had murdered Teku on account of a quarrel with him over his snatching of dau and refusing to return it. They also told them that after having done him to death, they threw the corpse on the Grand Trunk Road. Alter hearing the story, P.W. Rattan Lal, took them to his other three companions named above, and before them the two accused confessed their crime. The next morning the Sub-Inspector went to the village and Rattan Lai produced the two accused before him.
5. On interrogation, Chandar accused told the police that he had kept the dau underneath a chakki in his house, and he led the police party to his house and in the presence of P.Ws- 3 to 5 and C.W. 1 produced the dau, Exhibit P. 8. It was later found to be stained with human blood. Thereafter both the accused led the police party to a place near the field of one Sardara close to the field of Tcku deceased and indicated a place from where some earth was taken into possession and was later found to be stained with human blood. Thereafter Chandar accused also pointed out the place near the Grand Trunk Road from where previously the dead body had been found.
6. Pearey accused was also interrogated and he disclosed that he had kept a purse in his house and led the police party to his kotha, which is different from the kotha from where the Dau had been produced by Chandar accused; and produced purse, Exhibit P. 6, from behind a wooden box. This purse contained a fard of allotment of! some land in the name of P-W. 9 Bhag Mal, uncle of the deceased. P.W. 9 Shag Mal had stated that he and his nephew Teku deceased were jointly allotted land and the allotment chit had been given by him to Teku deceased for safe custody. The purse has also been identified to belong to Teku by P.W. 8 Lakhi, brother of Teku.
7. The post mortem examination disclosed that Teku had suffered a large number of incised wounds on the head and the neck in addition to an abrasion on the left arm. His trachea had been cut and his skull was fractured. On 26th October, 1956, a track parade of the accused had also been conducted by the Tahsildar. The procedure adopted was that the two accused were mixed with seven others of the same height and the tracker P.W. 15 Pars Ram was then called to examine the tracks hP picked out the track of Pearey accused and declared it to be similar to the moulds, Exhibits P. 1 and P. 2. He also picked out the track of Chandar accused and found it to be similar to the impression on the mould. Exhibit P. 3.
8. The accused pleaded not guilty.
9. The prosecution evidence consisted of -
(1) the motive as deposed to by P.Ws. Ram Sarup and Sri Chand on account of the quarrel with Teku because of the damage done to the crop resulting in the snatching of the dau and his refusal to return it;
(2) the circumstantial evidence of the two accused proceeding late in the evening to the place where Teku was last seen alive;
(3) the marks of the foot prints of the accused near the dead body;
(4) the extra judicial confession; and
(5) the recovery of dau, Exhibit P. 8, stained with human blood and the recovery of the purse belonging to the deceased.
10. The learned Sessions Judge did not consider theses circumstances sufficient to convict the accused-appellants under Section 302/34, Indian Penal Code, but he was of the view that on the material on the record, both accused could be held guilty under Section 201, Indian Penal Code. He convicted them under Section 201 and sentenced them to seven years' rigorous imprisonment each. The learned Sessions Judge felt that the prosecution, case about the two accused having gone to the chaupal and having confessed did find support from the statements of three witnesses, namely P.W. Rattan Chand, P.W. Duli Chand and P.W. Chet Ram, but as the learned Sessions Judge could not from the perusal of the evidence of these three witnesses determine the exact extent to which each of the two accused had made a confession, felt that it would be unsafe to find the accused guiity of the offence of murder. In his opinion, the circumstances of the case taken together were not sufficient to clearly establish that the accused had murdered Teku.
11. Regarding the part played by Sajjan Pal C.W. 1. the Sessions Judge rightly made certain adverse remarks. I have read the statement of Sajjan Pal C.W. 1 who was not produced as a prosecution witness by the police as he had been won over, but the learned Sessions Judge called him as a Court witness. This Sajjan Pal is an M.A., LL.B., and is a professor in Chhotu Ram Arya College. Re belongs to village Khewra. He categorically denied the coming of Chandar and Pearey accused to the chaupal of the village and having said anything about the occurrence. He also denied that in his presence the shirt worn by Chandar was taken into possession by the police.
He said this despite the fact that he had signed the memo of recovery. Exhibit P. K, as an, attesting witness. When confronted with his signatures as an attesting witness on Exhibit P. K, he came out with the explanation that he did not read this memo at that time. I cannot overlook the conduct of C.W. 1 which to my mind is reprehensible. He is an M.A..LL.B.. and a professor. As an attesting witness to Exhibit P. K, I cannot believe that he signed the document without being aware of its contents. I am driven to the conclusion that he had been won over by the defence with a view to screen the accused. The statements of the other three prosecution witnesses who were at the chaupal along with Sajjan Pal are straightforward and they appear to be independent and disinterested.
Shri Shadi Ram father of C.W. 1 SajjanPal had been conducting the case on behalf of the accused, and the learned Sessions Judge was quite right in questioning the propriety of his being engaged as a counsel in a case in which his son was one of the important witnesses for the prosecution. The father runs the risk of exposing himself to the charge that he might have had a hand in suborning his son who was a prosecution witness. No reputable lawyer should think of accepting a brief in a case in which his son or near relation is a witness or is likely to be cited as one. In this case the son was said to be present when the extra-judicial confession was made by the accused. It is regrettable that resort to methods like these have the effects of obstructing justice. A conduct, of which Sajjan Pal has given proof, would be inexcusable on the part of any witness, but when this person happens to be anM.A..LL.B. and a professor in a college and a son of the defence counsel in the case, his conduct be-comes abhorrent in the extreme and cannot be denounced too scathingly.
12. It has been argued before me by the learned counsel for the accused that the guilt of; the appellants under S. 201 has not been substantiated. Mr. C.L. Aggarwal stated that there was no charge under Section 201, Indian Penal Code, drawn up against the accused and this omission has prejudiced the accused and their conviction cannot stand on that ground. A person may be convicted of an offence although there has been no charge in respect of it if the evidence is such as to establish the charge that might have been made. It is true that the accused were not charged with having committed an offence under Section 201. but they certainly were tried on evidence which brought the case under the purview of Section 237 of the Code of; Criminal Procedure. Whore a person is acquitted of the charge of murder with which he was charged, his conviction under Section 201, Indian Penal Code, without any further charge is not illegal; vide Begu v. Emperor, AIR 1925 PC 130 (A). The above view of the Judicial Committee of the Privy Council was endorsed by the Supreme Court in Kashmira Singh v. The State of Madhya Pradesh, AIR 1952 SC 159 (B).
13. It is then argued that the removal of the dead body from one place to another does not constitute an offence under Section 201, Indian Penal Code, and reliance is placed upon Nagendra Bhakta v. Emperor, AIR 1934 Cal 144 (C), and on Upcndra Chandra v. Emperor, AIR 1941 Cal. 456 (D). All that was decided in these two authorities was that the essence of an offence under S. 201 being causing the evidence of thc commission of an ofTenee, to disappear, it would not be correct to say, that the mere moving of the body of the victim amounted to causing the' disappear-ance of the evidence of the offence. In view of the particular facts of those authorities the view taken in those cases may be unexceptionable.
In this case, however, the fact as to the removal of the corpse from the village to the Grand Trunk Road suggests that by removing the corpus delicti the intention was to avert the suspicion from the accused. The removal of the corpse to the Grand Trunk Road was presumably with a view to suggest that the man had been done to death by someone who was a passer-by. This act was an attempt with a view to screen the real offenders. I can well visualise to myself that in certain cases a corpse may be removed from one place to another without the intention or object of causing disappearance of evidence of the offence; and again, there can bo cases in which removal to an unknown, obscure out of the way or a distant place may be, with a view to cause disappearance of evidence within the meaning of Section 201, Indian Penal Code.
In a murder case the body with stab wqundsi is an evidence of the offence of culpable homicide. The expression 'any evidence o commission of that offence'' refers not to evidence in the extensive sense in which that word is used in the Indian Evidence Act, but to evidence in its primary sense, as meaning anything that is likely to make the crime evident, such as the existence of a wounded corpse or bloodstained clothes and weapons, fabricated documents, or similar material objects, indicating that an offence has been com-imitted: vide Anverkhan Mahamadkhan v. Emperor, AIR 1921 Bom 115 (E). While at this stage a reference may be made to the recent decision of the Supreme Court in Palvinder Kaur v. The State of Punjab, 1953 SCR 94 : (AIR 1952 SO 354): (F). In this case it was held that to establish a charge under S. 201, Indian Penal Code, it wasessential to prove that an offence had been committed and that the accused knew or had reason to believe that such offence- had been committed. The facts of that case were that the evidence showed that a person had died, that his body was found in a trunk and was discovered in a well and that thc accused who was his wife, took part in the disposal of the body. But as there was no evidence to show that cause of his death, or the manner or circumstances in which it came about, it was held that the accused could not be convicted for an offence under Section 201, Indian Penal Code. In this case, however, the body with the stab wounds showed the cause of death as well as the manner in which it came about. The conclusion as to the commission of the offence under Section 201, Indian Penal Code, by the accused is inescapable.
14. Moreover, in this case the dau was found to be stained with human blood. It was kept concealed under the chakki and produced by Chan-dar accused. In Lal Singh v. Thc Crown, 48 Crl L.J 786 (Lab) (G), Teja Singh, J. observed as under :
'There cannot be the slightest doubt that the woapon with which an offence is committed is a very valuable piece of evidence of its commission. More so when the offeree is said to be of murder and the weapon is bloodstained, and if a person conceals that weapon, provided his intention in doing so is to screen the offender, he is, in my opinion, guilty of causing; that evidence to disappear etc.'
It is true that Sharif J. did not subscribe to 'the above view and thought that the concealment of a weapon with which an offence is alleged to have been committed was not 'to cause any evidence of the commission of that offence to disappear'. According to Sharif J. the weapon it-sell is no evidence of the commission of the offence. It is simply an instrument with which the offence could have been committed and its discovery at the instance of a person indicates no more than that he knew where it was to be found. The view expressed by Sharif J. does not commend itself to me because when a weapon is stained with human blood it affords a primary evidence of the offence and not any evidence in the extensive sense.
I prefer to follow the reasoning of Teja Singh J. in preferonce to that of Sharif .J. Furthermore, the purse with the allotment slip inside belonging to the deceased was produced by the accused Prearcy. Apart from that there were the footprints of the accused at the place where the dead body was found on the side of the Grand Trunk Road. The conclusion under the circumstances is inescapable that the accused who knew and had reason to believe that an offence had been committed caused the evidence of the commission of that offence to disappear with the intention of screeing themselves from legal punishment. They are proved to be guilty, and have been rightly convicted by the learned Sessions udge, Rohtak.
The Sentence of seven years' rigorous imprisonment awarded to Pearey who is aged twenty-four years is not excessive. In the case of Chan-dar accused who is nineteen years of age, I feel that his sentence deserves to be reduced to five years' rigorous imprisonment. Maintaining the sentence and conviction of the accused Pearey, I dismiss his appeal. I allow the appeal of accused Chandar to this extent only that while I main-tain his conviction I reduce his sentence to a period of five years' rigorous imprisonment.