Pandrang Row, J.
1. The two appellants in this appeal have been convicted by the Additional Sessions Judge of Coimbatore, the 1st appellant of an offence punishable under Section 201, Indian Penal Code, and the 2nd appellant of murder. The 1st appellant received a sentence of 5 years' rigorous imprisonment while the 2nd appellant was sentenced to transportation for life under Section 302, Indian Penal Code.
2. The case arose out of the discovery of the dead body of one Ramasami Thevan, a bachelor of about 23 years, in the early morning of October 8, in the itteri near the field belonging to witness Royappa Goundan. He 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, the October 8, and the only eye-witness examined at the inquest, was not examined as a witness for the prosecution. The next day, however, during the investigation the Sub-Inspector was able to get the evidence of two eye-witnesses namely Knada Vannan and Muthu-kumarasamy Thevan, P.Ws. Nos. 9 and 7, respectively, according to whom the 2nd appellant 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. No. 10 was examined by the Police on October 13 and the remaining eye-witness examined in the case, viz., P.W. No. 8, was examined by the Police on October 23, as he was a strolling actor without any fixed abode. It would appear that several other eye-witnesses 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.
[After referring to the evidence his Lordships proceeded.]
3. I am of opinion, however, that the evidence of the eye-witnesses P. Ws. Nos. 7, 8 and 9 can be safely acted upon. That evidence shows that the death of the deceased was caused by the 2nd appellant 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 the 2nd appellant and his conviction under Section 302 must therefore be confirmed. The sentence of transportation for life imposed upon him is less than what he deserves, 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 Procedure Code.
4. As regards the 1st appellant the only acts proved against him are that he caught hold of the tuft of the deceased just before the 2nd appellant 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, Indian Penal Code, and I am of opinion that this question must be answered in the negative. The essential ingredient of an offence punishable under Section 201, Indian 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 the 1st appellant' 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, Indian Penal Code, can be sustained. There has been no appeal by the Crown in respect of the acquittal of the 1st appellant 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, Indian 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 Procedure Code.