Pandrang Row, J.
1. The two appellants in this appeal have been convicted by the Additional Sessions Judge of Coimbatore, appellant 1 of an offence punishable under Section 201, Penal Code, and appellant 2 of murder. Appellant 1 received a sentence of five years' rigorous imprisonment while appellant 2 was sentenced to transportation for life under Section 302, Penal Code. The case arose out of the discovery of the dead body of one Ramaswami Thevan, a bachelor of about 23 years in the early morning of 8th October in the Itteri near the field belonging to witness Royappa Goundan. Ho reported the discovery of the dead body which had numerous injuries to the village Munsif who reported the matter to the police and the Magistrate. The inquest was held on Sunday night 8th October and the only eye-witness examined at the inquest was not examined as a witness for the prosecution.
2. The next day however during the investigation the Sub-Inspector was able 1,0 got the evidence of two eye-witnesses namely, Kanda Yannan and Muthu Kumaraswami Thevan, P.Ws. 9 and 7 respectively, according to whom appellant 2 was the person who actually inflicted the fatal injury with an aruval on the deceased with the assistance of the other appellant. A third eye-witness, viz., P.W. 10, was examined by the police on 13th October and the remaining eye-witness examined in the case, viz., P.W. 8, was examined by the police on 23rd October as he was a strolling actor without any fixed abode. It would appear that several other eyewitnesses had been examined by the police during the investigation, but they were not examined for the prosecution on the ground that they had either been won over or become hostile.
3. The case against the appellants rests almost entirely on the evidence of these four eye-witnesses P.Ws. 7 to 10. The learned Additional Sessions Judge who heard them says that he believes their evidence in view of their demeanour in the witness-box and especially their story that it was appellant 2 who caused the fatal wound to the deceased. As regards P.W. 10 however the learned Additional Sessions Judge has failed to mention or to take into account the fact that while he now poses as an eyewitness of the actual stabbing he appears to have told the police when he was examined during their investigation that he only heard of it and did not see. This must necessarily detract very seriously from the value of his evidence, and I am not therefore prepared to attach any weight to the evidence of P.W. 10 and his evidence must really be excluded from consideration.
4. As regards the other three eye-witnesses there can be no doubt in my opinion that they must have been present at the time and they must have been actual eye-witnesses. There is no particular reason why they should give false evidence against either of the appellants, and I see no reason to differ from the learned Additional Sessions Judge's view as regards the value to be attached to their testimony. There is nothing inherently improbable in their evidence; on the other hand, their evidence is corroborated by the discoveries made by the police after the investigation had begun. All the three eyewitnesses P. W's. 7, 8 and 9 swear that they saw appellant 2 cutting the deceased on the right arm and on the right side of the chest with an aruval which he had in his hand just after appellant 1 had bent the head of the deceased down. They also state that the two appellants tied the deceased with a rope and. Began to drag him away saying that he was going to be taken to the Village Munsif.
5. As a matter of fact the dead body was found in a place about two miles from the scents of occurrence. Both the appellants attribute the evidence against thorn to enmity and faction. According to thorn neither of them was present in bhajana party during whose peregrinations the occurrence took place. It appears to be true that there had been some factions between two persons in the village, viz., Arunachala Thevan and Nachimuthu Thevan regarding some land, and it is seen that the appellants were siding with one of them. This however docs not satisfactorily explain way the evidence against the appellants. There is no real connexion between the eye-witnesses and either of these leaders of factions in the village. No evidence was adduced by the appellants in support of their plea that they wore absent from the bhajana party. If as a matter of fact they were actually not present, it ought to have been possible for them to prove it. Their plea that they wore not present at the bhajana party appears to be untrue. In view of what I consider to be satisfactory evidence of the eye-witnesses in this case it is unnecessary to deal with the question of motive in this case. The learned Additional Sessions Judge has dealt with the question of motive in para. 14 of his judgment and he appears to think that the condition of the corpse itself affords evidence of a sexual motive.
6. I do not think that there is very satisfactory evidence of motive in this case except the evidence of general ill feeling between the two factions. As regards the sexual motive the evidence is little hotter than hearsay. I am of opinion however that the evidence of the eyewitnesses, P.W's. 7, 8 and 9 can be safely acted upon. That evidence shows that the death of the deceased was caused by appellant 2 as the result of the fatal injury which he was seen to inflict on the deceased at the time of the occurrence. Where and when the other injuries were inflicted on the deceased is not known and it is not necessary to speculate as regards this part of the case in the absence of evidence, but the evidence actually available is clear and sufficient to fix the actual murder upon appellant 2 and his conviction under Section 302 must therefore be confirmed. The sentence of transportation for life imposed upon him is less than what he deserved, and in any case it is the lesser of the two sentences which the law permits in cases of murder. His appeal is therefore dismissed under Section 423, Criminal P.C.
7. As regards appellant 1 the only acts proved against him are that he caught hold of the tuft of the deceased just before appellant 2 fatally stabbed him, and that he took part in tying the deceased with a rope and dragging him along for some distance. These acts were, according to the learned Additional Sessions Judge, insufficient to support the charge of murder. Whether this view is right or wrong is not a question that arises for decision in this appeal. The question that I have to decide is whether these acts constitute an offence punishable under Section 201, Penal Code, and I am of opinion that this question must be answered in the negative.
8. The essential ingredient of an offence punishable under Section 201, Penal Code, is causing disappearance of evidence of the commission of an offence with a view to screen the offender from legal punishment, and it cannot be said that the acts shown to have been committed by appellant 1 amount to this offence. It is not contended on behalf of the Crown that these acts constitute this offence or that there is any other evidence on the strength of which the conviction under Section 201, Penal Code, can be sustained. There has been no appeal by the Crown in respect of the acquittal of appellant 1 of the charge of murder, and it is therefore not open to me to consider whether the acts proved against him would not have justified a conviction for murder. These acts do not certainly constitute an offence punishable under Section 201, Penal Code, and I must therefore, though with reluctance, set aside his conviction and the sentence imposed upon him under that section and direct his acquittal under Section 423, Criminal P.C.