Norris and Beverley, JJ.
1. The two accused were charged with the murder of one Moizuddeen, and also with causing the disappearance of his corpse with intent to screen the murderer from punishment under Section 201 of the Indian Penal Code.
2. The Judge found that there was no evidence to show which of the accused committed the murder, and he acquitted them both on that charge. He convicted them, however, on the charge under Section 201, and sentenced each of them to five years' rigorous imprisonment.
3. There was no pretence for implicating any one except the accused in the murder of Moizuddeen, and the evidence for the prosecution pointed conclusively to one or other of them being the actual murderer; but it was impossible, upon the evidence, to say which of them caused the death.
4. The accused have appealed against the conviction under Section 201, and their learned Vakil contends that it cannot stand.
5. We think this contention must prevail. In Queen v. Ramsoondar Shootar 7 W.R. Cr. 52, KEMP and Glover, JJ., said: 'That Section' (201) 'refers to persons other than the actual criminals, who, by their causing evidence to disappear, assist the principals to escape the consequences of their offence.' In Reg. v. Kashinath Dinkar 8 Bom. H.C. Cr. 126 Lloyd and Kemball, JJ., said: 'Section 201 and the two following sections commence with precisely the same words thus : Whoever knowing or having reason to believe that an offence has been committed,' Now as there is no law which obliges a criminal to give information which would convict himself, it is evident that Sections 202 and 203 could not apply to the person who committed that offence, i. e., 'the offence which he knew had been committed;' and Section 201 should, we think, be construed in a similar manner. And looking at the only illustration which follows Section 201, it would appear that the law was intended to apply exclusively to 'another,' and we are, therefore, of opinion that the conviction of the accused as accessories to an offence, known or believed to have been committed by themselves, is illegal.' In Queen-Empress v. Lalli I.L.R. 7 All. 749 Petheram, C.J., and Brodhurst, J., said: 'In our opinion on the construction of the section the person who is concerned as a principal cannot be convicted of the secondary offence of concealing evidence of the crime.'
6. In Queen-Empress v. Dungar I.L.R. 8 All. 252 Brodhurst, J., said : I do not feel called upon to express any opinion as to the, way in which Section 201 of the Indian Penal Code should have been drawn. All that I conceive I have to do is to decide whether that section does or does not apply to a criminal causing disappearance of evidence of his own crime. The section is contained in Chapter XI, the heading of which is 'Of false evidence and offences against public justice.' The marginal note of Section 201 is 'causing disappearance of evidence of an offence committed for giving false information touching it to screen the offender.' This is a correct abbreviation of the section, and from the wording of the section itself, and for the reasons given by Mr. Justice LLOYD, there is not, in my opinion, any room for doubt that the section applies merely to the person who screens the principal or actual offender. There are several judgments of High Courts in India which support this opinion, and I am not aware of any that are in conflict with it. All of these judgments have not been reported, but it is quite sufficient to refer to the following five rulings: Queen v. Ramsoondar Shootar 7 W.R. Cr. 52, Reg. v. Kashinath Dinkar 8 Bom. H.C. Cr. 126, Queen-Empress v. Krishna I.L.R. 2 All. 713, Empress v. Behala Bibi I.L.R. 6 Cal. 789, Queen-Empress v. Lalli I.L.R. 7 AIl. 749. These rulings extend over a period of about nineteen years, and are by nine Judges of three of the High Courts. It is incredible that all of them can have escaped the notice of the Legislature; and it is therefore reasonable to suppose that the section would have been amended had its meaning been misinterpreted by so many Judges of at least three of the High Courts in India.'
7. There are other cases to the same effect to which it is not necessary to refer.
8. The convictions must be set aside and the appellants acquitted and discharged.