Mahadeo Nath Khetri and Others vs Emperor

Rowland, J.—The four appellants, Mahadeo, Sahdeo who are brothers and Chhatu and Anand who are unoles of the former two all live in the same house. Chamni, a widowed sister of Mahadeo and Sahdeo, was also living in the same house with them.

It was the prosecution case that Maheshwar Nath was carrying on an intrigue with this Chamni which the four appellants resented; that on 14th February 1940, at night Maheshwar had entered the house of the accused and was caught in Chamni''s room by the appellants who inflicted numerous injuries on him and threw his body into a well in the village. They were charged along with Chamni and another woman of the house, Sucha, with offences of murder, Section 302/84, Penal Code, and causing disappearance of evidence of an offence, Section 201/84, Penal Code. The two women were acquitted, but the lour appellants have been convicted of both offences and sentenced on the former charge to transportation for life and under the latter to rigorous imprisonment for three years each, the sentences being directed to run concurrently.

The facts have been stated with clearness and precision in the judgment of the learned Judicial Commissioner. There is no eyewitness of the murder, and the case rests on circumstantial evidence which it is contended for the appellants does not establish the case against the accused. Moreover, appellant 2 Sahdeo has pleaded alibi. The evidence is quite clear that the relations between Maheshwar and the men of the accused''s household were unfriendly. In June 1938, Maheshwar had occasion to report at the police station an assault on himself by Mahadeo in which Maheshwar''s umbrella was broken and Mahadeo threatened Maheshwar. Witness Deopal, father of the deceased has spoken as to the intrigue between Maheshwar and Chamni and as to quarrels arising at different times in the last two years between Maheshwar and Mahadeo, Sahdeo and Anand respectively. This evidence is not seriously challenged.

On the last occasion referred to by Deopal, Maheshwar had entered the house of Sahdeo at night and was caught by accused Anand who beat him with a lathi, but Maheshwar managed to escape. There is no reason to doubt the fact of the motive set up by the prosecution and it is a motive sufficient to account for the crime alleged against the accused, particularly when coupled with the fact that Maheshwar had entered the house of accused on the night in question. As to that there is no witness who saw him enter, but during the night three witnesses Manu Lai, P.W. 2, Mohan Lal, P.W. 5 and Ram-sewak, P.W. 10 heard the voice of Maheshwar from within the house of Mahadeo cry out that he was being killed. These three witnesses are very near neighbours whose evidence the Judicial Commissioner has accepted and we have been shown no reason why it should be doubted. In fact Manu and Mohan later on the same night told Deopal what they had heard and Deopal after first looking to see whether Maheshwar was in his own room and finding him missing went to the house of Mahadeo with some neighbours and called out to those inside. There was no answer, although they could see lights and could hear sounds of movement which they have described as resembling the rattling of buckets. Deopal was so alarmed that he went to police station Bero and reported his son''s absence and the circumstances at 7 A.M. on the morning of 15th February 1940.

On investigation the body of Maheshwar was found in a well in the village. Three of the accused, Mahadeo, Anand and Chhatu were found in the house, but Sahadeo was missing. Blood stains were found in several of the rooms such as satisfied the Sub-Inspector, the Judicial Commissioner and in fact leave no doubt, that the rooms inside the house and particularly the room in the occupation of Chamni had been the scene of bloodshed. The body had been disposed of by throwing in a well in the village after drawing up over the head of the victim his vest, shirt and pull-over and then tying a comforter round them and the head. Medical evidence was that death was due apparently to suffocation and the injuries on the person of the deceased, though fairly numerous were not individually sufficient to account for the death and collectively the witness "would not have expected them normally to cause death. No witness was found who had seen the body, being thrown into well, but there is one witness Jalai Oraon, P.W. 21 a near neighbour who says that during the night getting up to case himself he saw four persons carrying something in a direction from north-west to south-west, but that seeing him they turned back towards north-west.

It is the case for the prosecution that this party was the party of the accused carrying the body of the deceased. Jalia has said that be heard Mahadeo say: "Uncle, a man is there" which led to the party reversing their direction. The Judicial Commissioner accepted the evidence of Jalia. and found that the materials before him established that the murder was committed inside the house of the accused, that all four of the appellants were in the house at the time when the assault on Maheshwar was being committed and that the murder could not have been carried through without the concurrence and connivance of them all and that it may be said with reasonable confidence that Jalia saw the four appellants removing the dead body. On this view he has convicted the appellants as above stated.

Sir M.N. Mukherji before us has not attempted to dispute that the deceased died as a sequal to an assault made on him within the house of the appellants and probably by some one or more of the appellants; but it is said that there is no means of proving which of the persons present in the house ; committed the murder and therefore none ,of the appellants can in the absence of better evidence than the Crown has been able to produce be convicted at all. Sir M.N. Mukherji has also argued that there is not sufficient material to support a finding of the presence of Sahdeo in the house on that night.

As regards the evidence of Jalia, he has argued that the witness is thoroughly unreliable and that his story should have been discarded as utterly worthless. Sahdeo''s statement was that he had left the village on the morning of the 14th, but there are numerous witnesses Deopal, Chabindra, Ramsewak, Ramdeo, Debendra and Gurindra by whom he was seen and who prove his presence in the village up to the evening of the 14th; but he on the other hand has adduced no evidence of his absence. Taking the evidence along with the medical evidence of marks of injury still present on his person when he was examined on 12th March, after his arrest, it may fairly be said that the probabilities are strongly in favour of his having been in the house and participating in some violent action.

As regards Jalia, the learned Judicial Commissioner accepted his evidence without much criticism; but it is pointed out that this witness may have some hostility against the accused. In a litigation between Padam Kuer and Kausilla, Jalia was a witness for the defendants, but Mahadeo was on Padam Kuer''s side. Jalia also gave evidence against Mahadeo in a case in which a decree-holder had applied to prosecute him and others for cutting attached paddy. It is further pointed out that the witness himself is not a person of very high standing, and it is suggested that he has had a chequered career. He was an amin in the cadastral settlement. The circumstances under which he left that service are not explained, but he repudiates the suggestion that he was dismissed for his misconduct. He had some land on saika lease from the Maharaja and it seems he defaulted in paying rent and a decree was obtained against him which he did not satisfy, but that he says was 25 or 30 years ago. Later he became clerk of a pleader whose services also ha has left; but he denies the suggestion that he was accused of embezzling the clients'' money and there is no evidence to support the suggestion. He is working now as clerk of another pleader, Kunja Babu of Ranchi, and he admits that before he obtained this post, he was unemployed for three years. He has been in debt to Kirpal Munshi who got a decree against him in satisfaction of which he executed a handnote. He was also in debt to Khwaja Moinuddin for cycle hire and executed a handnote in his favour. These matters transpired in his own evidence and there is nothing to show that he has not been candid.

It is further suggested that his statements do not agree with those of other witnesses in respect of the time of occurrence. He told the Sub-Inspector that when he went to case himself the moon was about setting. That would put the time as near midnight, it being about 7 or 8 days after the full moon. He however, in Court says that it was dark and does not mention the moon at all, no question being asked in cross-examination as to whether the moon had set. According to the other witnesses it was between 2 and 8 A.M. when Deopal was informed by Mohan and Manu; and Manu has described it as being after midnight when he heard the cries of Maheshwar. Some difference in estimates of time can be reasonably expected in dealing with incidents which occur in the night and time for those who have not a watch can only be estimated by guess. I do not think that the discrepancies in the matter of time are fatal to the evidence. The significance of the story that Jalia told can best be understood by reference to the sketch map Ex. 15. In this the house of accused is at A, that of Jalia is at S and there is a well between the house of Jolha Christian at N and S into which it might well have been convenient for the murderers to throw the body of Maheshwar. To do so they would proceed a short distance southward from A and then in a south-easterly direction to the well marked in pencil O. Jalia coming out to case himself would be likely to do so quite near this well and his story is that seeing him they turned back on their tracks. The well at B in the sketch map in which eventually the body was found is considerably further from the place of occurrence than the other well of which I have been speaking, and the fact that the body was taken to this well a longer distance and passing more than one house on the way is well accounted for if Jalia''s story is accepted. After considering Jalia''s evidence carefully.

I am of opinion in agreement with the Judicial Commissioner that the fact deposed to by him is true. If that is so, and if it was the body which was being carried, it proves that the persons who were disposing of it were four in number and this goes to corroborate the prosecution case that not only the other three accused but Sahdeo also was in the house of the appellants on the night in question. I conclude that Sahdeo was there.

The question then remains whether the evidence suffices to bring the crime home to individual accused or merely as contended by the defence to support a finding that the murder must have been done by one or more of their number, but that the evidence will not show which is the guilty one "and, therefore, they ought to be acquitted. I am prepared to accept the proposition advanced by Sir M.N. Mukherji with reference to Section 34, Penal Code, and a mere presence without proof of any act or omission done to facilitate the offence or at least without proof of the existence of a common intention will not be sufficient to support a conviction. Certainly if common intention is proved it will be no answer to say that the prosecution have not established which of the acts done in the commission of a crime, was done by each individual accused. We may also refer to the sections dealing with abetment. It amounts to abetment within Section 107, Penal Code, if a person intentionally aids by any act or illegal omission the doing of a criminal act and if a person is present, who if absent would be liable to be punished as an abettor, he is deemed u/s 114 to have committed the crime.

Now, in the present case, it has been found by the Judicial Commissioner, and I would accept the finding, that all the persons within the house must have known what was going on. Maheshwar was crying out loud enough to be heard by the neighbours as well as those inside the house. If murder was about to be done or was being done by one or two of the appellants, the others hearing Mahesh-war''s cries and knowing what was happening or about to happen had the statutory duty cast upon them by Section 44, Criminal P.C., forthwith to inform the Magistrate or police officer. If that could not be done in time to prevent the completion of the offence any of their could by opening the door and calling in the neighbours have saved the life of Maheshwar. Not one of the four accused did any such thing and all of them must be held either to have taken an active part or by wilful acquiescence to have furthered the intention of all that the crime should be carried to its completion and that no outsider should have a chance to interfere. With this we have also to consider that injuries were found on the person of every one of the appellants which though not conclusive indicate a probability that they had all taken part in a violent struggle. I think, therefore, that we ought to uphold the finding of the Judicial Commissioner that all four appellants had taken part in the crime and in the disposal of the body. It is possible that the murder was not completed inside the house. The medical evidence as already observed suggests that the direct cause of death was suffocation which may have supervened when it was thrown into the well. If they threw him in the well believing that he was dead and did not know that by so throwing him they were causing his death, would they be guilty of murder.

That is a position similar to the one considered in Emperor v. Nehal Mahto AIR 1939 Pat. 625 in which it was held that the test is whether the intention to cause death has been present and if it is, it will make little or no difference that the Court cannot determine at what precise point in the course of a series of acts of violence the unfortunate man expired. The appellants are, therefore, guilty of murder.

As they must for the offence suffer the sentence of transportation for life, and as no separate sentence has been imposed u/s 201, the accused in this case are not personally affected by whatever we may decide on the question whether they are liable at the same time to be convicted for the offence u/s 201 of concealing evidence, but the Judicial Commissioner has convicted them and it is for consideration whether that order should stand. It has been found that the offence of murder had been committed, that the accused caused the evidence of its commission to disappear and that their intention was to screen themselves and each other from legal punishment. Prima facie, no ingredient mentioned in Section 201, Penal Code, would appear to be absent; but in Ratanlal''s Law of Crimes the section is paraphrased thus: Whenever an offence has actually been committed, any person, other than the offender, knowing or having reason to believe that it has been committed, and intending to screen the offender from legal punishment, causes any evidence of the commission to disappear shall be punished. The words "other than the offender" do not appear in the section itself. The paraphrase, however, represents a view of the law which has been often taken by Courts in India.

This line of judicial opinion can be traced back to Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126. This was a trial arising out of some frauds and the accused it seems had caused the disappearance of evidence which would have proved the fraud against them. The submission in the memorandum of appeal of the petitioners had been.

that according to the Penal Code, Section 201, it is necessary for the commission of the offence that the evidence against a third person should be made to disappear, which has not been done in this case.

The argument adduced was that the law" (Section 201) applies to the causing the disappearance of evidence of an offence committed by another and not by the person who is charged with causing the disappearance. This argument was rested on something to be found in Mayne''s commentaries and to Bengal rulings to the effect that "the section applies to the causing the disappearance of evidence of an offence committed by another, not by oneself, "and that" the person who commits an offence, and afterwards conceals the evidence of it, cannot be punished on both heads of charge." The case in Queen v. Ramsunder (67) 7 W.R. Cr. 52 appears to be one of those ruling: Ramsoondar had been convicted of causing hurt and also of concealing evidence of the commission of that offence u/s 201, Penal Code; for the two offences he had been awarded separate and consecutive sentences. I quote the whole of the reasoning in the judgment:

The conviction u/s 201 we hold to be illegal. That section refers to prisoners other than the actual criminals who by their causing evidence to disappear, assist the principals to escape the consequences of their offences. But the person who commits an offence and afterwards conceals the evidence of it, cannot be punished on both heads of the charge according to the terms of the Penal Code.

The other pronouncement is not in a judgment of the Court, but in a letter from the Registrar commenting apparently on a Sessions statement. It is reproduced in 5 W R or Letters, p. 5 and runs as follows:

With reference to the case of Jangeea Tantee and others (case No. 2 of statement No. 4), the Court observes that the prisoner Jangeea Tantee haa been convicted of grievous hurt u/s 825, Penal Code, and causing the evidence to disappear to screen himself from legal punishment (Section 201, Penal Code,) and has received separate sentence for each offence. This does not seem to the Court proper, as Section 201 applies to the causing the disappearance of evidence of an offence committed by another, not by oneself. At any rate, in the present case, the commission of grievous hurt and the offence u/s 201 were not distinct acts, but were part of one continuous transaction and, as such, should not have received separate punishments though the acts of the prisoner, subsequent to the causing of grievous hurt {vide illustration), may be matters which may properly be taken into consideration in awarding punishment. As the sentence is not excessive, the Court will not interfere, unless on appeal it may be found necessary to do.

There is nothing to show that arguments were heard for the party or for the Crown before issuing this letter.

Returning to Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126 the Bombay Judges reasoned thus:

As there is no law which obliges a criminal to give information which would convict himself, it is evident that Sections 202 and 203 (intentionally omit-ting to give information; giving information known to be false) 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.

Following this decision a similar view has been taken in Empress of India v. Kishna (78) 2 All. 713, Empress v. Behala Bibi (81) 6 Cal. 789, Queen-Empress v. Lalli (85) 7 All. 749, Queen-Empress v. Dungar (86) 8 All. 252, Torap Ali v. Queen-Empress (95) 22 Cal. 638, Sumata Dhupi v. EmperorA.I.R. 1916 Cal. 919 , Taprinessa Vs. Emperor, . All these are either based on Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126 or simply follow one another. The decision in Torap Ali v. Queen-Empress (95) 22 Cal. 638 is the limit; this has been described as" an example of how justice is defeated" in one of the cases I shall be quoting later, and in the two succeeding Calcutta decisions the Judges show uneasiness and try to find an intermediate position. But logically there is no intermediate position. If Dinkar''s case Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126 was rightly decided so was Torab''s Torap Ali v. Queen-Empress (95) 22 Cal. 638; if Torab''s Torap Ali v. Queen-Empress (95) 22 Cal. 638 is wrong so is Dinkar''s Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126. Dinkar''s case Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126 is direct authority for the proposition that a man could not lawfully be charged with any substantive offence and in the alternative with the offence u/s 201; it follows that he could not lawfully, on a charge of murder, be convicted of the other offence Section 201 because the section is not meant to apply to criminals, but only to the innocent. But ought the Courts to engraft on a section in this manner words of qualification or exception which the Legislature has not seen fit to put there? When the section forbids any man to do away with evidence of any crime, is it open to a Court by a stroke of the pen and without hearing argument to say it does not forbid a man to do away with the evidence of his own crime? I cannot find that this method of construing a statute has ever been approved by the Privy Council. They say in Ramnnandi Koer v. Kalawati Koer AIR 1928 P.C. 2.:

It has often been pointed out by this Board that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning, uninfluenced by any considerations derived from the previous state of the law or of the English law upon which it may be founded.

The word "often" in the passage cited shows that pronouncements to the same effect are numerous and I do not propose to multiply references to them. I may refer to a decision of the House of Lords in Vacher & Sons v. London Society of compositors (1913) 1913 A.C. 107, in which Lord Atkinson said:

A Court of Law has nothing to do with the reasonableness or unreasonableness of a provision of a statute, except so far as it may help it in Interpreting what the Legislature has said. If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results.

Other noble and learned Lords expressed themselves in similar terms. I may cite also one more decision of the Privy Council in AIR 1939 47 (Privy Council) , where it is said:

In truth when the meaning of words is plain it is not the duty of the Courts to busy themselves with supposed intentions.

The principles have been consistently asserted; and with great respect to the learned Judges I would hardly expect the interpretation placed on Section 201, by the above line of authority to receive the approbation of the Privy Council in any case which came before their Lordships. Such a case arose in AIR 1925 130 (Privy Council) , with the result that was expected by those most conversant with the fundamental principles of construction consistently and repeatedly laid down by their Lordships.

Some of the High Courts had already realized the inconvenience, the absurdities to which the decision in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126 logically must lead; some of these were denounced by the High Courts which had not fallen into them and renounced by those which had in Calcutta for instance, in Umed Sheikh v. Emperor 30 C.W.N. 816, approved and followed in Durlav Namasudra Vs. Emperor, , in Lahore in Bulaqi v. Emperor AIR 1928 Lah. 476 and Ditta v. Emperor AIR 1928 Lah. 906, in Oudh in Mata Din v. Emperor AIR 1930 Oudh. 113, A Bench of the Allahabad High Court in Emperor Vs. Mt. Har Piari and Others , addressed themselves to the construction of the actual words of Section 201 and said:

We are unable to agree with the view that a person who has actually committed a crime himself-whether murder or any other crime-is any the less guilty of remvoing traces thereof, if it is proved against him that he has done so, because he was the person who actually committed the offence. If the Legislature intended to provide such an exception, they would undoubtedly have said so in express language.

In that case, however, the Bench though dissenting from two of the earlier decisions based on 8 Bom H o B Or 1262 did not examine that case itself. That was done by a Bench of the Madras High Court in In re Chinna Gangappa AIR 1930 Mad. 870, where the Judges point out that the ratio decidendi in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126 has nowhere been examined in the succeeding cases; and they say:

It seems to us to rest on a pelitio principii. The reason given is that ''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 a person who committed that offence, that is, the offence which he new had been committed.'' Obviously, if there is no law to that effect, then Sections 202 and 203 will not apply. The question rather is whether Sections 201 to 203 do not embody such a law. On the face of them there is nothing to show that they do not apply to the main offender himself. Section 44, Criminal P.C., which is the generic section relating to the duty of persons to give information about grave offences including murder, and Section 45(d) of that Code which lays on any owner or occupier of land the duty of giving information regarding the occurrence in his village of any sudden or unnatural death, do not in terms exclude the offender himself. These sections of the Criminal P.C., would be relevant in a case u/s 202, Penal Code, where it is necessary that the accused should be legally bound to give information regarding the offence; but even this qualification does not appear u/s 201 or Section 203. What is required there is merely that there should have been an offence and that the accused has given false information about it, with the added intention in the case of Section 201, Penal Code, of screening the offender. We cannot, therefore, see wherefrom comes the proposition which is the foundation in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126, that there is no law which obliges a criminal to give information which would convict himself. There issuch a law in the case of grave offences and sudden deaths, and in theory the offender himself could be convicted for breach of that law under Sections 201 to 203, Penal ''Code. In practice, no doubt, if he has been convicted of the offence itself, no Court will think it worth while to convict him also under Sections 201 to 203, Penal Code. If the proposition'' laid down in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126, is carried to its logical conclusion, it would appear that it is improper to try an accused person as the present accused has been tried, in the same trial under both Sections 302 and 201; Penal Code, because a perfect defence to Section 201, would be a plea and proof that he himself was the murderer, and an accused would be entitled to say that the plea he proposes to make to the charge u/s 201 will depend on whether he is acquitted or convicted of the principal offence; and that to call upon him to plead to the charge u/s 201, before and until he knows what the verdict on the murder charge is, would be to deprive him of his legitimate defence. It would also in a case where the Court regards proof of his complicity in the actual offence as insufficient to establish his guilt compel the Court to let him go free, even though it is satisfied that he gained his acquittal on the main offence by his own concealment of the traces of the crime. This was exaotly what happened in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126, and it is hardly compatible with justice that the actual offender should escape conviction under Sections 201 to 203 because he is the actual offender in the main crime, while those who merely witnessed it but gave false information about it are punishable under Sections 201 and 203. This means that the more successful a criminal is in concealing his own offence, the more the law will assist him in escaping justice altogether, and, unless the Court holds without reasonable doubt that the accused did not take part in the murder, the Court is bound to give him the benefit of the doubt and acquit him of offences under Sections 201 to 203. The case reported in 22 Cat 638s is another practical example of how justice is defeated by such a theory of the law, The true principal seems to be that there is no law preventing the main offender being convicted under Sections 201 to 203, but in practice no Court will convict an accused both of the main offence and under these sections.

The matter came before a Division Bench of this High Court in Rup Nardin Kurmi v. Emperor AIR 1931 Pat. 172, when the Judges Fazl Ali and Scroope JJ. were agreed that there was no: bar to the conviction u/s 201 of persons; charged with a murder, but not convicted of it, but whereas Eazl Ali J. would not go further than this, Scroope J. accepted in its entirety the reasoning of the Allahabad High Court in Emperor Vs. Mt. Har Piari and Others . The headnote to the report is misleading. It includes the statement:

Held that the section does not relate to the principal offender but to persons other than the actual criminal who, by causing the evidence of the offence to disappear, assist the principal to escape the consequence of his crime,

thus representing wrongly that this was the view of two Judges, whereas it was only the view of one, and the contrary opinion of Scroope J. is absolutely and entirely ignored in the headnote. It is not a fact as represented in the headnote that there is an agreed decision of two Judges on the point before us. The matter is open for our independent opinion.

The learned Judges who decided the Patna case on 11th June 1930 had not before them the decision In re Chinna Gangappa AIR 1930 Mad. 870 which was decided on 8tih April of the same year and arrives from another point of view at the same conclusion as the Allahabad decision relied on by Scroope J., and we are entitled, I think, to read Section 201 and express our own opinion on its meaning read in accordance with the principles laid down by the Privy Council. As to the application of these principles to the particular section we have to consider, I have not been able to find any more recent authority directly bearing on it; but some light on the general method of construction can be had by examining a case already referred to, namely, AIR 1939 47 (Privy Council) . Their Lordships had occasion to construe Section 162, Criminal P. C, which provided in Sub-section (1):

No statement made by any person to a Police Officer in the course of an investigation under this chapter shall if reduced into writing be signed by the person making it, nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such trial was made.

The majority of the High Courts had held that this Sub-section did not apply to a statement made by a person who, at the time it is tendered in evidence, is an accused person; and their Lordships say, " that the words in their ordinary meaning would include any person though he may thereafter be accused" and they say:

That if the statement is to be admitted at all it can be by limiting the words ''used for any purpose'' by the addition of such words, as ''except as evidence for or against the person making it when accused of an offence''. If such an exception were intended one would expect to find it expressed; and their Lordships cannot find sufficient grounds for so departing from the plain words used

and their Lordships make the pronouncement already cited that

in truth when the meaning of words is plain, it is not the duty of the Courts to busy themselves with supposed intentions,

and they say:

In this case the words themselves declare the intention of the Legislature. It therefore appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interest of the prosecution or the accused.

I am impressed by the reasoning in Emperor Vs. Mt. Har Piari and Others and In re Chinna Gangappa AIR 1930 Mad. 870 and I think it is not improbable that if Fazl Ali J. had had before him this latter decision and that of the Privy Council in AIR 1939 47 (Privy Council) , he would have found himself in agreement with the opinion of Soroope J. and would have followed the Allahabad decision. Apart from the reasoning in the Madras case, so accute and experienced a lawyer, so eminent a Judge as Fazl Ali J. whose opinion I regard, as I ought, with the greatest respeot, would not fail to take notice that the ratio decidendi in Emperor Vs. Mt. Har Piari and Others is the same as in the later decision of the Privy Council. Their Lordships say "if such an exception were intended one would expect to find it expressed", and I find it difficult to suppose that the learned Judge would question the correctness of that line of reasoning. It is possible however to support the decision of the Judicial Commissioner in the case before us on another ground. The intention of each of the appellants was to screen his companions as well as himself from legal punishments; and on this view the convictions u/s 201 seem not to be objectionable, even if the words of the section require that a man should screen an offender other than himself.f

I would dismiss the appeal.

Shearer J.

I regret that I am unable to concur in the ''view which my learned brother takes of the meaning and scope of Section 201, Penal Code. In my judgment, a person who, having committed an offence, subsequently causes evidence of the commission of that offence to disappear, does not in so doing, commit another separate and distinct offence for which the Courts have in strict law jurisdiction to impose a separate punishment. The words in the section over which the difficulty arises are: "Whoever....causes any evidence.... to disappear with the intention of screening the offender from legal punishment,...." The word "whoever" may be taken as equivalent to "any person who". Now, in the sentence "any person who causes any evidence to disappear with the intention of screening the offender" the words "any person" appear to me to exclude by necessary implication the offender himself. The words immediately after "whoever" or "any person who" are "knowing or having reason to believe that an offence has been committed". These words quite certainly presuppose a person other than the offender himself. The marginal note to the section and the illustration appended to it also suggest that it was the intention of the Legislature to exclude the offender from the scope of the section. Any one reading the section would, I think, at first sight at least assume that it was intended to cover the case of a person who had not taken part in the commission of a crime himself but had, subsequent to the commission of it, endeavoured to prevent justice being done by removing evidence of it. In order to make it cover also the case of the offender himself it is necessary, in the first place, to substract from the section the words "knowing or having reason to believe that an offence has been committed which become wholly unnecessary and to add after the word "offender" some such words as "even if the offender be himself". On the ordinary principles of construction it is not, in my judgment, permissible to do this.

The most recent decision which can be cited in support of the view taken by my learned brother is In re Chinna Gangappa AIR 1930 Mad. 870. That was a case in which a man reported to the police that his wife had been stung by a scorpion or bitten by a snake when in point of fact, she had been killed, in all probability by himself. Possibly for that reason the some-what novel argument which was put forward and eventually commended itself to the Court was based on Section 44, Criminal P.C. The argument proceeds on the assumption which in my opinion is unwarranted, that the word "whoever" in Section 201, Penal Code, and the words "every person" in Section 44, Criminal P.C., can, without doing any extreme violence to the language used in the remainder of the sections, be made to include the offender himself. Immediately after the words "every person" in Section 44 come the words "aware of the commission of" which impliedly exclude the offender or at least are, so far as he is concerned, wholly unnecessary. Then come the words "intention of any other person to commit" which make it I submit with great respect, clear that the words "every person" do not include a person intending to commit an offence and therefore make it extremely unlikely, to say the least of it, that they were intended to include a person who had committed one. Finally there occur the words "without reasonable excuse." What weight or meaning can be given to these words in the case of the offender himself? Wallace and Jackson JJ., in In re Chinna Gangappa AIR 1930 Mad. 870, criticized an observation in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126, that "there is no law now which obliges a criminal give information which would convict himself." "Nemo tenetur accusare seip-sum." In 17th century in England this maxim was thought to embody the law of God and Nature; such was the odium which had been excited by the practice of the Court of Star Chamber in administering the ex officio oath to prisoners and compelling them to answer incriminating questions. The revulsion of feeling persisted and eventually in 1848 Parliament enacted a statute which absolutely prohibited any judicial questioning of the prisoner either before or during the trial.

When, thirteen years later the law of criminal procedure in India was for the first time systematised and codified, this characteristic feature which gives to the English system a dignity and an apparent humanity which other system lack, was, it is true, not exactly reproduced. But if the power of the criminal Courts to question accused persons was not taken away altogether it was at least provided that they were not to be bound to answer questions and were to be exempt from punishment if they answered questions falsely. In my opinion, the substantial truth of the observation made in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126, is not open to doubt and the ratio decidendi in In re Chinna Gangappa AIR 1930 Mad. 870, is, on the other hand, radically unsound. The other decisions relied on are those of Walsh and Pullan JJ., in Emperor Vs. Mt. Har Piari and Others and that of Scroope J., in Rup Nardin Kurmi v. Emperor AIR 1931 Pat. 172. In the former it is remarked:

We are unable to agree with the view that a person who has actually committed a crime himself whether murder or any other crime is any the less guilty of removing traces thereof, if it is proved against him that he did so, because he was the person who actually committed the offence. If the Legislature intended to provide such an exception they would undoubtedly have said so in express language.

In order to make Section 201 apply to the case of the offender himself, it is necessary as I have already shown, to substract from it words that are there and to add to it words that are not. That being so, is it not more reasonable to assume that if the Legislature had intended to make the act of causing evidence of the commission of a crime to disappear punishable in every case, there would have been two sections and not one in the Penal Code, one the section now there to cover the case of the accessory after the fact and the other a section to cover the case of the principal offender in some such terms as: "Whoever, having committed an offence intentionally causes any evidence of the commission of that offence to disappear or gives any information respecting the offence which is false."

The authors of the Penal Code, in dealing with the offence of resistance or obstruction to lawful apprehension found it necessary to insert two sections, viz., Sections 224 and 225, the former covering the case of the person sought to be apprehended and the latter the case of other persons who assisted him to resist. Moreover, they added an explanation to Section 224 to make it clear that resistance or obstruction to lawful apprehension was an act for which a punishment might be imposed in addition to ant punishment to which the offender might be liable in respect of the offence on account of which he was sought to be apprehended. Why did they not take the same simple and obvious course in dealing with the offence of causing evidence of the commission of a crime to disappear, if they wished to make such an act, when done by the offender himself, punishable? The principal author of the Penal Code, was one of the great masters of the art of lucid expression and his object in adopting a style which, it has been well said, is as unlike that of an Act of Parliament as it is unlike that of an Indian Regulation was to prevent the law being misunderstood by Courts which were often presided over by laymen. Would he and his coadjutors have left Section 201, as it now stands, if they had intended it to apply to the case of the principal offend?

On the other hand, if they had intended it nob to -apply to the case of the principal offenders, could they reasonably be expected to have foreseen that the Gourbs mighb so apply it and to have realized the necessity or desirability of adding an explanation to the section and making their meaning still more abundantly clear? It is obvious that in framing Section 201 and certain other sections which occur in the same chapter, the authors of the Penal Code, were endeavouring to reproduce the English law relating be accessories after the fact. If they had anything else before them, if was probably the sections in the French Penal Code which deal with the same matter. In other words, they were not considering then, whether cases might not arise in which a person should be punished for removing traces of an offence he had himself committed. But Legislature has since considered and provided for this in at least one specific instance. In or about 1895 one Shama Gharn Sen was tried on a charge of'' defrauding a bank of three lakhs of rupees and had to be acquitted apparently, if the Commentary in Ratanlal is correct, on the ground that it could not be shown on what particular occasions or in what particular sums the amount had been abstracted. This acquittal was followed by the enactment of Section 477A, Penal Code.

It is interesting to note that in Reg v. Kashinath Dinkar (71) 8 Bom. H.C.R. Cr. 126, the accused persons had entered into a conspiracy be defraud, and had defrauded, the Public Works Department of large sums of money. The facts of the case do not appear very clearly from the report and it is scarcely possible to say that if Section 477A had then been in existence the accused persons could and would have been prosecuted under it rather than u/s 201. A clerk or servant who misappropriates money and in order to conceal this destroys papers and books of account, in effect causes evidence of the commission of his crime to disappear. It is reasonable that such an act should itself be made an offence as it may conceivably be the means of his successfully avoiding punishment for the misappropriation. But there does not seem to be any very good ground on which every attempt on the part of any offender to remove traces of his crime should be made punishable. It is as natural for an offender to try and conceal his crime as it is for him to try and avoid apprehension. Human nature being what it is, it would plainly be futile to endeavour to prevent a criminal trying to conceal his crime by the threat of further punishment-while be make such an act punishable would pub it in the power of the Courts to be vindictive.

My learned brother has referred to Ramnnandi Koer v. Kalawati Koer AIR 1928 P.C. 2. That was a case in which two men were convicted u/s 302 and three other men, who had been tried along with them on the same charge, were ultimately convicted u/s 201. The question, or rather one of the questions, that arose, was whether in the absence of a charge u/s 201 the conviction could be maintained. It has to be remembered that at one time in England an accessory after the fact could not be tried until after the conviction of the principal felon and even now a person indicted as a principal cannot be convicted and sentenced as an accessory after the fact: R. v. Watson (1916) 2 K.B. 385. Their Lordships of the Judicial Committee came to the conclusion that in India the law was otherwise and that Sections 236 and 287, Criminal P.C., rendered the conviction valid. These sections were set out in the judgment and were critically examined. Section 201, Penal Code, was not set out or discussed and after reading and re-reading the judgment I am bound, with the greatest respect, to say that I am unable to find anything in it be support the view that Section 201 punishes the principal offender as well as the accessory after the fact. On the contrary, the point was one which did not at all arise and which it was quite unnecessary for their Lordships to consider. If it had been, the observations of so distinguished a lawyer and philosopher as Viscount Haldane would, no doubt, have been illuminating.

It has been satisfactorily proved that the appellants were jointly concerned in the commission of this murder and in the removal of the dead body of the victim. It may be said that the intention of each of the appellants in removing the dead body was to screen his companions as well as him-self from punishment and on that ground perhaps the convictions u/s 201 as well as u/s 302 can in this particular case be supported. But if they can, that is a purely accidental result of the language used in the section. In my judgment, the law in India does not, any more than does the Common Law of England, ordinarily visit the act of an offender in endeavouring to remove traces of his crime with a punishment separate and distinct from any punishment to which he may have rendered himself liable by committing the offence.

With these observations I would concur in the order of my learned brother dismissing the appeal.