Mack, J-Appellant aged 19, the son of Rangappa Naicker, has been found guilty under section 302, Indian Penal Code of the murder of a young woman Chittliammal aged about 16 and sentenced to death. The facts of this case are remarkable. The police originally laid a charge-sheet against the father Rangappa Naicker, as A-I and the son, the present appellant, as A-2 it would appear, under section 302 read with section 34, Indian Penal Code. The committing Magistrate on some unusual evidence in the case framed a charge of murder only against the son, and a charge under section 201, Indian Penal Code read with section 511, Indian Penal Code i.e., for attempting to dispose of the murdered corpse against the father. In the Sessions Court, the case was split up into two and the learned Sessions Judge has tried the appellant separately on the charge of murder, it would appear, in view of the Full Bench decision of this Court In reSeraje Marayana Bhatta1. The trial Court judgment makes no reference at all to the fact that the father had also been charge-sheeted, and that the case was split up on this manner. A perusal of it leaves one in doubt and speculation as to the position of the father, whose absence either from the witness box or the dock, on the evidence admitted in the case, is otherwise quite inexplicable. Mr. Netto of the Salem Bar, who appeared in the trial Court and was present here to assist Mr. Ethiraj for the appellant, has clarified an obscure position. The learned Sessions Judge should, when he splits up cases in this manner, make reference to it in his judgment. The facts of this strange case according to the prosecution are these. The corpse of Chittliammal was found in the field of Rangappa Naicker, according to the official plan about 300 yards from Kondireddipatti village, where he lived. She had been stabbed through the heart, the only fatal injury on her. She also had six abrasions or contusions, 4 in the chest and abdominal region, one on the forehead and one on the right knee. They are all simple injuries pointing to some struggle, which preceded the fatal stab injury 2½" deep in the chest, which pierced the heart. She also had six abrasions or contusions, 4 in the chest and abdominal region, one on the forehead and one on the right knee. They are all simple injuries pointing to some struggle, which preceded the fatal stab injury 2½" deep in the chest, which pierced the heart. Rangappa Naicker himself had arranged for the marriage of this girl to his nephew P.W. 3 a few years before the offence and constructed a house for them to live in near his own. P.W. 3 left the village some time before this murder and Rangappa Naicker is said to have kept Chittiliammal as his concubine with whom his son also got infatuated and was having illicit intimacy. The only witness, who deposes to the existence of this alleged amorous rivalry between the father and the son is rather strangely the village magistrate of Kondireddipatti, Munuswami Naidu (P.W. 4) who lived in another village Anetheripatti about a mile from the scene of offence. The burden of the defence, which may be anticipated here, is that false evidence has been given and concocted by this village magistrate, who was a family enemy. The evidence of the village magistrate Munuswami Naidu is that at 10 p.m. on Sunday, the 22nd of October 1950, one Chinnappa Naicken (P.W.1), a resident of another hamlet Chinnampatti, which, according to the official plan is 300 yards from Kondireddipatti in the opposite direction to the scene of offence or altogether 600 yards from the scene of offence, came to him with a complaint, Exhibit P-I, which he took down. According to Exhibit P-I, P.W. 1 and one Boochadan (P.W.7) heard a noise in the field of Rangappa Naicker and on running to see, encountered Rangappa Naicker and his son there the latter with a knife in his hand. Rangappa Naicker told him that his son Krishnan had stabbed Chittliammal, begged him not to disclose anything and asked him, P.W. 7 and three other named persons, who have not been examined including one Oor Naicker (P.W. 8) to help in cremating the body secretly. He refused and reported the matter to the village magistrate, who says he went with P.W. 1 and on the way met Oor Naicker and others, the latter coming from the direction of the scene of offence, Rangappa Naicker hiniself and his son. He refused and reported the matter to the village magistrate, who says he went with P.W. 1 and on the way met Oor Naicker and others, the latter coming from the direction of the scene of offence, Rangappa Naicker hiniself and his son. He says Rangappa Naicker on bended knees begged him to save his son, who had stabbed Chittliammal, not to report the matter and allow the body to be burnt. Rangappa Naicker himself, according to the village magistrate’s evidence, took him and showed him Chittliammal’s corpse about 40 yards from a channel in his field. After inspecting it he wrote the report Exhibit P-I incorporating these facts, timed at 11 p.m. and despatched it to the authorities. This did not reach Mathur Police station four miles away till 6 a.m. The Sub-Inspector reached the village at 9 a.m. and held the inquest, at which the village magistrate Munuswami Naidu himself was a panchayatdar. At the inquest, he says he examined P. Ws. 1, 7 and 8. There was one eye witness to the actual stabbing, Ramaswami Moopan (P.W. 2), who was not examined by the Police till the Wednesday. He and no less than three other important witnesses P.Ws. 3, 7 and 8 at the Sessions trial all went back on their depositions in the committing Court and were permitted to be treated as hostile, their former depositions being exhibited under section 288, Criminal Procedure Code. The learned Sessions Judge was in error when in paragraph 5 of his judgment he stated that P.W. 6 had also turned hostile. He is a witness of Kondireddipatti, who says he ran with a crowd to the scene and there Rangappa Naicker asked him and three others to help burn the corpse. He refused at first but was persuaded to join in carrying the corpse out of Rangappa Naicker’s field into a neighbouring groundnut field. Then they heard the village magistrate was coming and put the corpse back into its original place. The earth taken up from where the corpse was lying in Rangappa Naicker’s field was found on chemical analysis to be stained with human blood, and no attempt was made at any time to obliterate these traces. Then they heard the village magistrate was coming and put the corpse back into its original place. The earth taken up from where the corpse was lying in Rangappa Naicker’s field was found on chemical analysis to be stained with human blood, and no attempt was made at any time to obliterate these traces. Though P.W. 6’s deposition in the lower Court was not marked under section 288, Criminal Procedure Code, and no permission was given to treat him as hostile, in cross-examination he admitted that the village magistrate collected the witnesses in the village and paid for all his food and bus expenses in coming to Court. In order to establish enmity between the village magistrate and Rangappa Naicker’s family, much has been made of the fact that this village magistrate was a prosecution witness in a murder case against Rangappa Naicker in 1949 in which he was acquitted. The village magistrate explained that he was examined merely as an official witness, who had sent up the first report. More relevant and tangible is a petition Exhibit D-3 written by the appellant himself on behalf of a village menial, one Raman, dated 21st August, 1950 to the Sub-Collector complaining that the village magistrate had not paid him his salary for July after obtaining his acquittance. The only important witness, who has not resiled at the Sessions trial is P.W. 1, the first informant to the village magistrate from whom he recorded Exhibit P-I. But he has given evidence so astonishing in fundamentals as to make it entirely unacceptable. The evidence he gave in the Sessions Court was that at night meal time while he was talking in the street in front of his house, he heard a woman’s shrieks coming from the direction of Rangappa Naicker’s field and ran with P.W. 7 and others towards the place. He said that Rangappa Naicker’s field was about a furlong from the place where they were talking. This witness lived in Chinnam-patti village no less than 600 yards from Rangappa Naicker’s field. How he could have heard any cries from there of a woman shouting passes comprehension. He probably went along with the large crowd, which gathered in Rangappa Naickers’ field some time after this murder. This witness lived in Chinnam-patti village no less than 600 yards from Rangappa Naicker’s field. How he could have heard any cries from there of a woman shouting passes comprehension. He probably went along with the large crowd, which gathered in Rangappa Naickers’ field some time after this murder. He then went on to corroborate what he said in Exhibit P-I in which however he gave the time at which he heard the cry of “Ayyo, I am dead” at about 10 p.m. Another very improbable feature in his evidence is that when he found Rangappa Naicker and the appellant at the scene of offence, the appellant still had a knife or “soori kathi” in his hand. Now the evidence that this witness was permitted to give at the Sessions trial and also the evidence of the village magistrate that Rangappa Naicker told him that his son had stabbed Chittliammal is legally inadmissible in a trial against the son himself without the father appearing as a witness. It is hearsay evidence of a dangerous character and wholly and legally inadmissible. The learned Sessions Judge merely made a note of the objection taken but allowed the evidence to go in. Had the father been on joint trial along with his son, the official complaint Exhibit P-I made by P.W. I to the village magistrate and also the extraordinary request made by the father for his assistance in cremating the body, would have been legally admissible. The result of the splitting up of this case has been that all that the father is alleged to have said fastening responsibility on the son is totally inadmissible without his being examined as a witness himself. The learned Sessions Judge has based the conviction of the appellant mainly on P.W. 2’s lower Court deposition Exhibit P-2. This is no doubt under section 288, Criminal Procedure Code substantive evidence in case. This witness lives in Kondireddipatti. His evidence was that on that sunday he was following from his village Rangappa Naicker and Chittliammal, the former carrying a tiffin carrier. Briefly his story is that the present appellant crossed him and struck a blow on Chittliammal’s cheek, the tiffin carrier dropped down and she cried out “Ayyo, appa” and then the appellant stabbed her in the chest with a knife. Rangappa Naicker then questioned his son. Briefly his story is that the present appellant crossed him and struck a blow on Chittliammal’s cheek, the tiffin carrier dropped down and she cried out “Ayyo, appa” and then the appellant stabbed her in the chest with a knife. Rangappa Naicker then questioned his son. Father and son together came near the corpse and people came shoutting. He waited and also heard A-I tell the persons that his son stabbed Chittliammal and begged them to arrange for the cremation of the corpse immediately. He also saw P.W. 6 and others lifting the corpse and he then went away to his field. He admitted even in the lower Court that he was cultivating the lands of the village magistrate on lease this year, but wholly denied a suggestion that he was deposing falsely at the instance of the village magistrate. In the Sessions Court, he gave an entirely different version saying that about 10 p.m. while on his way to his fields with some coolies he heard a hue and cry and the deceased Chittliammal came running from a depression, staggered and fell down close to him. He hastened away to his fields with his coolies. Even in examination-in-chief he deposed that the village magistrate tutored him to say that the woman was carrying food in a tiffin carrier and the rest of the version he gave in the committing court. He admitted that the whole of his lower Court deposition was false and pleaded that he gave it on being tutored by the village magistrate. The next witness, who resiled is Rangappa Naicker’s nephew (P.W. 3), who in the committing court deposed that his uncle got Chittliammal married to him but as he kept her as his own concubine, he left the village. In the Sessions Court, he merely says he went to his own village as he fell ill. An extraordinary feature of this case is that the only witness, who deposes to the appellant also being on terms of illcit intimacy with Chittliammal is the village magistrate himself. His evidence that the father Rangappa Naicker was keeping this girl is strongly corroborated by the evidence of P.W. 3 in the committing Court, but the village magistrate remains the only witness examined, who deposed that the father and son were rival paramours of this girl. His evidence that the father Rangappa Naicker was keeping this girl is strongly corroborated by the evidence of P.W. 3 in the committing Court, but the village magistrate remains the only witness examined, who deposed that the father and son were rival paramours of this girl. The village magistrate in the witness box admitted that his evidence was purely hearsay. It is strange that he was the only person in the locality, who came forward to depose in this manner. The next witness, who has resiled, is P.W. 7 who, according to P.W. 1, ran with him to Rangappa Naicker’s field on hearing a woman’s shrieks. The evidence he gave in the Sessions Court was that there was a hue and cry to the west of his village of Chennampatti, and that the village magistrate came and took him, P.W. 1 and some others. They went and saw the body but he declined to go near it in fear and went home. In his lower Court deposition, Exhibit P-5 he says he and P.W. 1 went together from Chennampatti on hearing cries to the west of their village, that they met A-1 and A-2, that A-1 told them the girl was stabbed and that they may report to the village magistrate. Very significantly, P.W. 2 did not say there that A-1 said that A-2 stabbed her. He further said that the appellant was also near the corpse. He ran home out of fear and then later on the village magistrate came and he and others accompanied him to the scene of offence. He then said that Rangappa Naicker wanted the corpse burnt but that the village magistrate did not agree. At no stage of his evidence in the lower Court, did he corroborate the village magistrate or P.W. 1 in any suggestion that it was the appellant who stabbed the woman. The last witness, who resiled, is P.W. 8 named Chinnappa Naicker, who claims to be the Oor Naicker referred to supra. All he said in his lower Court deposition Exhibit P-6 is that he went with village magistrate, P.W. I and also strangely enough the eye witness P.W. 2 and saw Chittliammal's corpse in Rangappa Naicker’s field. All he deposed to was that Rangappa Naicker and the appellant were there and that Chittliammal had a stab in her chest. All he said in his lower Court deposition Exhibit P-6 is that he went with village magistrate, P.W. I and also strangely enough the eye witness P.W. 2 and saw Chittliammal's corpse in Rangappa Naicker’s field. All he deposed to was that Rangappa Naicker and the appellant were there and that Chittliammal had a stab in her chest. He was treated as hostile because in the Sessions Court he did not say that when they went near the dead body, Rangappa Naicker and his son were there. The wholesale resiling of these witnesses in the Sessions Court is an extraordinary feature of this case. It is capable of more than one explanation. It may be due to their being tutored to give false testimony, in a false twist given to this case by the village magistrate or to their having been gained over by Rangappa Naicker. There is a third reason which, we think, is more likely and that is that these witnesses after this case was split up and a case of murder was concentrated only on the present appellant, decided to give it no support at all. We are not prepared to say that they have deposed in the circumstances in all respects truly in the committing court and falsely in the Sessions Court. It is very unfortunate that the case as originally laid by the police was split up in this manner into two separate trials. Mr. Ethiraj and the learned Public Prosecutor both agree that if the father and the son had been both tried together on charges under section 302, Indian Penal Code there would have been no misjoinder at all. In the Full Bench decision in In re Seraje Narayana Bkatta1there was a separate charge framed against three persons for causing the disappearance of a murdered corpse who had nothing to do with the murder itself. That Full Bench decision was on a reference made by Horwill, J. and myself and was occasioned by a difference of opinion between us. In the Full Bench decision in In re Seraje Narayana Bkatta1there was a separate charge framed against three persons for causing the disappearance of a murdered corpse who had nothing to do with the murder itself. That Full Bench decision was on a reference made by Horwill, J. and myself and was occasioned by a difference of opinion between us. The view I then took and with the greatest respect to which I still incline is that in cases, in which the disposal of the body is done by one of the persons directly charged with murder, the persons who help him to dispose of the body, knowing he was the murderer, can be tried together with him, regarding murder and the disposal of the body as offences in the course of the same transaction under section 239(d), Criminal Procedure Code though where disposal of a murdered corpse is done by persons, none of whom had any connection with the murder, then they should be tried separately. In our opinion and in this both Mr. Ethiraj and the learned Public Prosecutor agree, the Full Bench were dealing with the facts of a peculiar case as is clear from the following observation they made: “Obviously no general rule can be laid down as to when different offences can be said to have been committed in the course of the same transaction. The question when it arises must be determined on the facts of the particular case.” If the learned Sessions Judge splits up this case on the strength of this decision, all we can say is that he misapplied it. It was open to him after notice to the father to have altered the charge against the father also under section 302, Indian Penal Code or better still to have framed what we consider to have been proper charges on the facts alleged by the prosecution, viz., alternative charges under section 302 and 201, Indian Penal Code against both the accused, keeping the original accusation made by the investigating police intact for a single judicial determination On the peculiar facts in this case as alleged by the prosecution, it was clearly doubtful which offences they will constitute and the procedure of alternative charges, was fully justified under section 236, Criminal Procedure Code. Mr. Mr. Ethiraj and the learned Public Prosecutor agree that if this had been done, there would have been no misjoinder at all. A superficial reading of the Full Bench decision appears to have engendered an erroneous view that an offence under section 201, Indian Penal Code can in no circumstances be tried along with section 302, Indian Penal Code. It is perfectly open to a court to convict an accused charged of murder under section 302, Indian Penal Code of an offence only under section 201, Indian Penal Code without even framing any separate charge under the latter section. This has been recognised in the Full Bench decision itself following the Privy Council decision Begu v. King Emperor1. We have carefully considered whether in this case there should be a retrial of the appellant along with his father. This cannot now be done without notice to the father. The only legal evidence against the son is the retracted evidence of the only eve-witness P.W. 2 and his lower court deposition admissible under section 288, Criminal Procedure Code. The evidence of P.W. 1 that he was standing with a knife in his hand with his father by the corpse is prima facte incredible. The legally admissible evidence against the appellant in the present case is quite insufficient to warrant a conviction. We have also decided that it is insufficient to justify even a retrial along with his father. We do not desire to express any opinion here about the truth or falsity of the evidence of the village magistrate P.W. 4 in view of the case pending aginst the father Rangappa Naicker on the charge under section 201, Indian Penal Code read with section 511, Indian Penal Code in respect of which he has been committed, which must take its course. Without the father appearing before us in the capacity of either witness or accused, we do not feel justified also in expressing any opinion. This is the unfortunate result of the bisection of the case and the Police accusation with the evidence against the son forced into the narrow groove of the first complaint and report made by the village magistrate in this case. With these observations, we allow the appeal, acquit the appellant and direct him to be set at liberty. V.P.S. ----- Appeal allowed.