In Re: Kandaswamy and Another

Sadasivam, J.—Appellants Kandaswamy and Guruvan alias Guruswamy in these two connected appeals were accused 1 and 2 in Sessions Case No. 55 of 1963, on the file of the Court of Sessions, Salem. Appellant Kandaswamy has been convicted u/s 302, Indian Penal Code on a charge of having murdered one-Komarasamy Fadayachi by beating him on his head with an iron pipe at East Thottipalayam village at about 8 pm. on 23rd March 1963 and sentenced to imprisonment for life. Both the Appellants have been convicted u/s 201, Indian Penal Code for having caused the disappearance of the offence of murder and sentenced to rigorous imprisonment for three years each.

The deceased Komaraswamy Padayachi was a mason by profession, and he was aged about 55 years at the time of his death. He was a resident of Alampalayam village, which is a mile from East Thottipalayam village. The dead body of Komaraswamy Padayachi was found on the metal portion of the railway track between the eighth and ninth kilometre stones after 384th mile on the Erode--Salem line at about 9 a.m. on 24th March 1963, by P.W. 1 Karuppanna Goundan, Key watchman in the Southern Railway, and he gave a written report about it to P.W. 2, Narayanan Nair, Station Master at the Kavery Railway Station. P.W. 2 Narayanan Nair caused a telegram to be sent to the Railway Police at Erode. P.W. 13 Ibrahim, Head Constable attached to the Railway Police, Erode Station, registered the case on the receipt of the telegram exhibit P-7 and went and held the inquest on the evening of 24th March 1963, and sent the body for post-mortem. P.W. 14, Sankaranarayanan, Sub-Inspector, Railway Police, took up investigation of the case on 25th March 1963, and suspected the complicity of the first accused in the commission of the crime, after examination of Ponnuswamy Goundan, President Kandamanallur Panchayat. He searched the house of the first accused and noticed the iron pipe M.O. 2 and the crow bar M.O. 6 and other articles. Subsequently, he transmitted the case to Pallipalayam Police as his investigation disclosed that the offence was committed within the jurisdiction of the said police. P.W. 16 Sadayappan was Sub-Inspector of Police, Pallipalayam, at the time of the occurrence and he took up investigation of the case on the morning of 29th March 1963. He examined P.W. 6 Natarajan on 30th March 1963. P.W. 15 Sundararajan, Inspector of Police took up investigation of the case after he received the express First Information Report and he examined P.Ws. 4, 8, 9 and 10 on 31st March 1963.

The prosecution case rests mainly on the evidence of the alleged eye witness P.W. 4 Kuppanna Goundan and the evidence of the other witnesses P.W. 6 Natarajan, P.W. 8 Sallikathan alias Sellappan, P.W. 9 Palaniswamy, P.W. 10 Rangaswamy and P.W. 11 Raju. All these witnesses belong to East Thottipalayam village. The prosecution case as revealed from the evidence of these witnesses is briefly as follows:

Both the first accused and his father deal in arrack. P.W. 4 Kuppanna Goundan went to the house of the father of the first accused at about 5 p.m. on the date of occurrence to drink arrack. But the father of the first accused told Him that the stock of arrack was over. The first accused who had come there took P.W. 4 Kuppanna Goundan to his house saying that there was arrack in his house. The deceased Komaraswamy Padayachi who had taken a tumbler of arrack even in the morning was waiting on the pial of the house of the first accused and he entered the house along with the first accused and took another tumbler of arrack. It appears that the deceased Komaraswamy Padayachi had changed a ten-rupee note in the morning, but had only Rs. 3.50 in his pouch and the first accused took Rs. 1.50 instead of one rupee for the supply of a glass of arrack. But when the deceased Komaraswamy Padayachi questioned the first accused, he told him that he only took one rupee but even took the balance of Rs. 2 for purchasing a fowl. The second accused is a washerman and he is said to be a friend of the first'' accused. He went and brought a fowl'' and" prepared it for roasting. In the meanwhile P.W. 6 Natarajan, Vice-President of Alampalayam Panchayat Board, came along with P.W. 8 Sullikattan alias Sellappan and asked the first accused whether arrack was available and the first accused answered him in the affirmative and stated that he had also the carry. P.W. 6 Natarajan deposed that he questioned as to who were all in the house and that when he learnt that Komaraswamy Padayachi was also in the house, he stated that he would come later after Komaraswamy Padayachi left the place as he was a stranger to him. But the first accused promised to send away Komaraswamy Padayachi and went and asked him to leave the place. But Komaraswamy Padayachi refused to do so saying that he was feeling hungry. Thereupon the first accused took an iron blow pipe and struck Komarawamy Padayachi twice on his head with it. Komaraswamy Padayachi cried Ayyo and then remained silent. Then the first accused led Komaraswamy Padayachi by his hand and placed him on a rock at a distance of 25 yards from his house. P.W. 4 Kuppana Goundan deposed that he witnessed the first accused hitting on the head of Komaraswamy Padayachi twice with a blow pipe. P.W. 6 and P.W. 8 deposed that they heard the noise of patir, patir. P.W. 4 deposed that the first accused led Komaraswamy Padayachi from the house to the rock at a distance of 25 yards. But P.Ws. 6 and 8 deposed that both the first accused and P.W. 4 led Komaraswamy Padayaohijby his hands from the house and made him lie on the rock near the house. P.W. 9 Palaniswamy and P.W. 10 Rangaswamy came to the house, of the first accused later. P.Ws. 4, 6, 8 to 10 took arrack and ate the roasted fowl. After some time, the first accused went out of the house and returned saying that Komaraswamy Padayachi was lying speechless and that he should be taken and thrown away at a distance. But the witness were not willing to accept the suggestion of the first accused and they left the place, after seeing both the accused removing the body of the deceased Komaraswamy Padayachi from the rock.

The learned Sessions Judge has observed that the fact that P.Ws. 4, 6 and 8 to 10 are drunkards is not by itself a ground to discard their version as the occurrence took place inside the house of that first accused, and in the presence of some of the drunkards only, but he has added that the testimony of the said witnesses has to be scrutinized with utmost care and caution. But the real question in this case is whether the occurrence took place in the manner spoken to by the witnesses inside the house of the first accused.

After discussing the evidence in the case, His Lordship proceeded as follows:

The first accused is, therefore, entitled to benefit of doubt in this case in respect of the charge u/s 302, Indian Penal Code.

A person can be charged for an offence of murder, and, in the alternative for the offence of causing evidence to disappear with the intention of screening the offender. In fact there is nothing illegal to charge and convict a person both for committing a crime and for causing evidence of the offence to disappear. In the decision of the Supreme Court in Kalawati and Another Vs. The State of Himachal Pradesh, It has been held that Section 201, Indian Penal Code is not restricted to the case of a person who B screens the actual offender and it can be applied even to a person guilty of the main offence, though as a matter of practice, a Court will not convict a person s both of the main offence and one u/s 201, Indian Penal Code. A person who assists the actual murderer in removing the corpse of their victim to a distance from the place where the murder was committed is guilty of an offence u/s 201 Indian Penal Code. It is true that the mere act of removing the dead body of a murdered person from one place to another may not by itself be sufficient to justify a conviction u/s 201 Indian Penal Code. It is unnecessary to prove in a case u/s 201 Indian Penal Code that such removal was made with the intention of screening the offender from legal punishment. In Empress of India v. Kishna ILR (1880) All. 713 it was held that the act of the Appellant in that case did not constitute an offence defined u/s 201 Indian Penal Code as his object in removing the corpse of Jeevan from one field to another was only to divert suspicion from himself or from Bhikan. It was found as a fact in that case that the act of removing the corpse from one field to another did not cause any evidence-of the murder to disappear, If the decision is relied on as showing that the mere removal of the corpse from one place to another cannot under any circumstances amount to an offence u/s 201 Indian Penal Code, it would not be correct. In fact the decision in that case that Section 201 Indian Penal Code excludes the actual offender is, as already pointed out, is no longer good law. In the present case if the accused removed the dead body of Komaraswamy Padayachi from the rock to the railway track with the intention of screening themselves from punishment, they would be clearly guilty of the offence u/s 201 Indian Penal Code. If the corpse was found at the spot C in exhibit P. 16 within 25 yards of the house of the first accused, it would by itself afford some evidence in this case, and if that evidence is intentionally caused to disappear by the act of the accused, there could be no difficulty in finding the accused guilty u/s 201 Indian Penal Code. It is true that the mere removal of the dead body from one place to another without any such intention cannot be an offence. The dead body of a murdered person can be legitimately removed from one place to another for various reasons. But if the removal is made with the mens rest mentioned in Section 201 Indian Penal Code it would clearly amount to an offence under that section. But it is unnecessary to pursue this discussion any further as the prosecution has failed to prove that the dead body of Komaraswamy Padayachi was removed by one or both the accused from the rook to the railway track.

For the foregoing reasons, the convictions of the Appellants and the sentences imposed on them are liable to be set aside and they are hereby set aside and they are acquitted of the charges made against them.