Umrao Alias Landiya v. State of Rajasthan — 1974 DIGILAW 269 (RAJ)

Per Kan Singh, J. on reference—This is an appeal by one Umrao and has been placed before me on a difference of opinion between the Judges hearing the appeal in Division Bench. Umrao was put on trial in the court of the Additional Sessions Judge, Alwar on two counts; one under sec. 302 Indian Penal Code and the other under sec. 201 Indian Penal Code. The learned Additional Sessions Judge found Umrao guilty under sec.302 of the Indian Penal Code, but acquitted him of the other charge observing that an act of concealing the dead body of the deceased was not screening the offender as the accused himself was the offender. The learned trial Judge relied on State vs. Mohanlal(l) for his conclusion that a murderer by removing a dead body from a place of murder to another place cannot be held to screen himself as the person to be screened must be somebody else than the offender within the meaning of sec. 201 Indian Penal Code. 2. The convict appealed and the appeal was heard by a Division Bench consisting of V. P. Tyagi and J. P. Jain JJ. While Tyagi J. held that the accused was responsible for causing the death of the deceased Gulla and had, therefore, been rightly convicted by the trial court for the offence of murder under sec. 302 Indian Penal Code, Jain J. held that the evidence was not of such a character as to exclude every hypothesis but the one proposed to be proved by the prosecution namely, that of the accused being the murderer of Gulla. As regards the count under sec. 201 Indian Penal Code while Tyagi J. did not make any observation, Jain J. thought that in the circumstances the accused could be held guilty for causing disappearance of the evidence of the crime of murder and he could be punished under sec. 201 Indian Penal Code, but he felt that there was a difficulty in convicting him of that charge as he had been acquitted by the trial court and there had been no appeal against the accuseds acquittal under sec. 201 Indian Penal Code. In the result he was of the opinion that the appeal be allowed and the accused acquitted of the charge under sec. 302 Indian Penal Code as well. 3. 201 Indian Penal Code. In the result he was of the opinion that the appeal be allowed and the accused acquitted of the charge under sec. 302 Indian Penal Code as well. 3. It is in these circumstances that the appeal has been placed before me under orders of Honble the Chief Justice. 4. The prosecution case has been set out both by Tyagi J. and Jain J. in their respective opinions and I need not cover the same ground over again. Suffice it to say that the essence of the indictment against the accused was that on account of previous enmity between the deceased Gulla and the family of the accused Umrao the latter had caused Gullas death with an axe on the morning of 24-7-68 in the jungle of Machi (Distt. Alwar) near Surajwala Nala. The deceased had left his village Machi for Behror early in the morning to attend the hearing of one case. Umrao came to know of it and he followed Gulla and he attacked Gulla in the jungle of Machi with the axe and killed him on the spot There was no eye witness in the case and the case depended on the circumstantial evidence consisting of (1) the motive for the crime, (2) extra judicial confession said to have been made by the accused before P.W. 1 Manna Lal and P.W. 7 Surja. These witnesses were further corroborated by P.W. 2 Sheoram, P. W. 3 Lila and P. W. 4 Ram Kanwar, (3) the discovery of the dead body of Gulla from a well in pursuance of an information given by the accused Umrao to P.W. 21 Shri Surat Singh, Investigation Officer, vide Ex. P/15. Recovery of the dead body was made by Shri Surat Singh from the well in presence of the motbirs P. W. 14 Banshi-dhar and P. W. 15 Atmaram,(4) discovery of the clothes of the deceased and the axe Article 1, alleged to be the weapon of offence and a blood stained Dhoti Article-6, worn by accused Umrao when he was arrested. 5. In appeal it was argued on behalf of the convict by his learned counsel that the circumstantial evidence had not been properly appreciated by the trial court. 5. In appeal it was argued on behalf of the convict by his learned counsel that the circumstantial evidence had not been properly appreciated by the trial court. As regards the recovery of axe Art 1 and the Dhoti of the accused it was argued that the blood on these articles being disintegrated by the time the articles came to be examined by the Sarologist, it could not be said that they bore human blood and, therefore, the accused could not be said to be connected with the crime on the basis of these two circumstances. As regards the Dhoti of the deceased said to have been recovered at the instance of Umrao it was submitted that it did not connect the accused with the crime as it had not been proved that the Dhoti belonged to the deceased. Regarding the extra judicial confession it was contended that the statements of P. W. 1 Mannalal, P. W. 2 Sheoram, P. W. 3 Lila, P. W. 4 Ram Kanwar and P. W. 7 Surja were unreliable. 6. Tyagi J. came to the conclusion that the trial Judge had committed grave error in seeking corroboration from the statements of Lila and Ram Kanwar for the proof of the extra judicial confession of the accused. His conclusion was that the extra judicial confession had not been established. Tyagi J. has, however, accepted the statement of P. W. 2 sheoram, P. W. 3 Lila and P. W. 4 Ram Kanwar in part for holding that these witnesses happened to see Umrao when they were on their way to Bansur while they happened to pass from near the Nala. According to these witnesses, Umrao had come to them and on enquiry informed them that it was Gulla with whom abuses were exchanged by Umrao. His Lordship was impressed by the statement of P. W. 2 Sheoram. In cross-examination this witness had turned hostitle to the prosecution. He stated, when confronted with his statement in committing court Ex. P/l, that there was exchange of abuses between him and Gulla. Relying on this admission of Umrao about the presence of Gulla at a place from where ultimately blood stained earth was seized by the Investigating officer the Tyagi J held that this incriminating circumstance was established against the accused. P/l, that there was exchange of abuses between him and Gulla. Relying on this admission of Umrao about the presence of Gulla at a place from where ultimately blood stained earth was seized by the Investigating officer the Tyagi J held that this incriminating circumstance was established against the accused. Tyagi J. further held that the recovery of the dead body was made on the information furnished by the accused vide Ex. 15.For this he relied, by and large, on the statement of P.W. 21 Shri Surat Singh, Investigating Officer. Tyagi J. further reached the conclusion that at the time of his arrest the accused was putting on the Dhoti Art.6 which bore the blood stains which had been washed. He considered it as an important piece of evidence even though it had not been proved that the blood on the Dhoti was human blood as by the time the articles reached the Serologist the blood has disintegrated. Tyagi J. further put weight on the fact that in his statement under sec. 342 of the Code of Criminal Procedure the accused had denied the recovery of this Dhoti and that was an additional circumstance against him Tyagi J. further held that the axe Art, 1 was recovered at the instance of the accused. So were the other articles like the Dhoti and a pair of shoes belonging to the deceased recovered at the instance of the accused. One and a half Chapati were was found tied in the Dhoti According to the Chemical Analyst, the axe had stains of blood on it, but according to the Serologist, the origin of the blood could not be known as the blood was disintegrated. Tyagi J. further took into consideration the nature of the incised wound found on the dead body and observed that such injuries could be caused by the axe Art. 1. Tyagi J. referred to Wasim Khan vs. State of U.P.(1) in support of his conclusion that even though the article was not shown to have human blood on it, the circumstance of there being blood on the article could yet be taken into consideration against the accused. As regards the motive, he held that even the accused bad admitted in his examination under sec. 342 Criminal Procedure Code that there was enmity bet ween the deceased Gulla and the accused. As regards the motive, he held that even the accused bad admitted in his examination under sec. 342 Criminal Procedure Code that there was enmity bet ween the deceased Gulla and the accused. In the result, therefore, Tyagi J. concluded the discussion in the following words: "In the instant case, I think that the prosecution has succeeded in proving the following circumstances: (1) Enmity between the parties which provided a motive for the accused to commit the offence of murder. (2) The presence of the accused at the site of the murder as admitted by the accused himself to Sheoram (P.W. 2), Lila (P.W.3) and Ram Kanwar (P.W. 4). (3) Recovery of the blood-stained earth from the Nala at the instance of the accused which suggests the commission of offence at the Nala. (4) The manner in which the dead body was concealed by the accused in the well known as Kothiwala two miles away from the alleged spot of occurrence and the recovery thereof in pursuance of the information supplied by the accused. (5) Concealment of axe (Art. 1) by the accused near the alleged place of occurrence and the discovery of the same in pursuance of the information supplied by the accused. It was found to be blood stained for which no explanation is coming forth from the side of the accused except a bare denial which cannot be accepted in view of the evidence of P. W. 21 Surat Singh and P. W. 15 Atmaram. (6) The recovery of a blood-stained Dhoti (Art. 6) from the person of the accused for which no explanation except denial is given by the accused. (7) The nature of the injuries sustained by the deceased which could be inflicted by a weapon like axe (Art.1). The cumulative effect of these circumstances leave no room for doubt to infer that the accused was the author of the injuries sustained by the deceased and that the guilt of the accused under sec. 302 Penal Code is, therefore, established beyond any realm of doubt." 7. Jain J. dissented. He prefaced his discussion by referring to the principles regarding circumstantial evidence. He observed that the circumstantial evidence must be such as from which the inference of the guilt of the accused is irresistible and inescapable. 302 Penal Code is, therefore, established beyond any realm of doubt." 7. Jain J. dissented. He prefaced his discussion by referring to the principles regarding circumstantial evidence. He observed that the circumstantial evidence must be such as from which the inference of the guilt of the accused is irresistible and inescapable. The entire chain of circumstantial evidence must be conclusive as to give rise to the only inference of the guilt of the accused and it must not be consistent with any hypothesis of his innocence and it is only when there is such an evidence on record that an accused can be convicted on the basis of the circumstantial evidence. He referred to a recent case of the Supreme Court Kaliram vs. State of Himachal Pradesh (2). Then he embarked on the discussion of the various pieces of evidence relied on by the learned trial Judge. Regarding the motive Jain J observed that there was not an iota of evidence to prove that there was enmity between the deceased and the accused. Referring to the statement of P.W. 13 Maujiram, Station House Officer, Bansur, he observed that all that: the witnesses stated was about registration of a case of theft against Birbal, Fakira and Deena on a report made by Gulla and he also deposed that he had put up a challan, but the witness did not state as to what happened in that case or what were the actual allegations made by Gulla. Further a copy of Gullas report had not been placed on record. He observed that the contents of the first information report cannot be assumed without legal proof of the same. Then he referred to the statement of the accused under sec. 342 Criminal Procedure Code. He observed that the accused had, no doubt, stated that the allegations against him were false and he had been implicated on account of Ranjish, but the accused was not asked to explain what P. W. 13 Maujiram had deposed, nor was any question put to him about the litigation. The circumstance brought out against the accused regarding the motive could not thus be availed of by the prosecution. As regards the extra judicial confession he agreed with Tyagi J. that the same has not been established. The circumstance brought out against the accused regarding the motive could not thus be availed of by the prosecution. As regards the extra judicial confession he agreed with Tyagi J. that the same has not been established. However he dissented from the conclusion reached by Tyagi J regarding the testimony of P. W. 2 Sheoram, P. W. 3 Lila and P. W. 4 Ram Kanwar for establishing the presence of the accused near the site of the occurrence. He subjected their statement to a close scrutiny and found that they were unnatural. When these witnesses heard the cries Sheoram shouted as to who was making the cries and then Umrao accused came there and on enquiry informed him that it was he who was making the cries and accepting the explanation of the accused the witnesses proceeded ahead This was, according to Jain J. an unnatural conduct of the witnesses. Regarding P. W. 2 Sheoram, Jain J. observed that he was hostile right from the beginning and when he was confronted with the statement made by him in the committing court Ex. P/l he admitted that Umrao had told him that there was a quarrel between him and Gulla and it was the cause of the noise. From this statement, according to Jain J , it could not be spelt out that he had seen Gulla at that place and further even accepting his statement made in Ex, P/l it was only the word of Umrao which disclosed that there was a quarrel between him and Gulla. Lila P.W/3 deposed that the cry that he and others heard was Ram Re, Toba Re, Hay Re" and it was on hearing this cry that the witnesses shouted to find out as to what was the cause of the noise. But when Umrao had come near them and alter he had told them that there was exchange of abuses between him and Gulla, the witnesses merely advised him not to fight. This was most unnatural. His lordship observed that it should have aroused their suspicion and they should not have gone away by merely accepting what Umrao had told them. But when Umrao had come near them and alter he had told them that there was exchange of abuses between him and Gulla, the witnesses merely advised him not to fight. This was most unnatural. His lordship observed that it should have aroused their suspicion and they should not have gone away by merely accepting what Umrao had told them. Then there was some discrepancy about the distance between the witnesses and Umrao, one said it was 1000 paces, the other said 200 paces and the third said 50 paces, this lordship concluded the discussion by observing : "It was only the word of Umrao which informed them (witnesses) that he was exchanging abuses with Gulla. In my opinion this short of testimony is of hear-say character." Thus, the prosecution had failed to prove, according to Jain J. that the deceased Gulla was with the accused on that morning; the testimony being of hear say character. He further noticed that no attempt had been made by the prosecution to prove that Gulla left his house in the early morning of the 24th to go to Behror as alleged in the first information report. Therefore, Jain J. did not find it possible to assume the presence of Gulla near or about the village Machi. He, however, agreed with Tyagi J. in holding that the dead body of the deceased Gulla was recovered from the Kothiwala well in the outskirts of village Guta on the information supplied by the accused, His lordship however, did not accept the recoveries of a pair of shoes, a piece of Dhoti and some Rotees, as it was not established that they belonged to the deceased. Consequently, according to him, this recovery was of no help to the prosecution. Then as regards the recovery of axe Art.1, Jain J. held that it would not be sufficient to connect the accused with the crime as it had not been established that the axe had human blood on it. The mere fact that the injuries could be inflicted by an axe on Gulla deceased would not, according to his lordship mean that the axe that was used was Art. 1. His lordship pointed out that the doctor had even stated that a knife too could cause the injuries on the body of Gulla. The mere fact that the injuries could be inflicted by an axe on Gulla deceased would not, according to his lordship mean that the axe that was used was Art. 1. His lordship pointed out that the doctor had even stated that a knife too could cause the injuries on the body of Gulla. As regards the recovery of Dhoti Art.6, from the person of the accused he observed that he would not place reliance on the testimony of Surat Singh, as the prosecution did not care to prove the seisure of the Dhoti from P. W. 15 Atmaram when he was in the witness-box. Apart from this Jain J. observed that the Dhoti had not been found positive for human blood and therefore, the recovery was of no value as a piece of evidence. In the result, he came to the conclusion that there was no evidence leading to the inevitable conclusion that the accused Umrao alone could have murdered Gulla. 8. The whole case is open before me and, therefore, I have heard learned counsel for the appellant and the learned Deputy Government Advocate on all the points arising for consideration in the appeal. 9. The motive for the crime is said to be previous ill-will between the deceased Gulla and the family of the accused. P. W. 13 Shri Maujiram stated that on 4-11-67 the deceased Gulla had made a report regarding a theft against Birbal, Fakira & Deena Gujars of Nachi and he had put up a challan against them. He further stared that Birbal was the father of Umrao. It cannot, therefore, be said that there was no evidence of previous ill-will. It is true no direct question was put to the accused regarding this testimony of P. W. 13 Shri Maujiram. Nevertheless the accused did state that there was ill-will between the deceased and the family of the accused though he added that this was the reason for his being falsely implicated for the murder of Gulla. It is desirable that the evidence to be considered against an accused is put to him in his examination under sec. Nevertheless the accused did state that there was ill-will between the deceased and the family of the accused though he added that this was the reason for his being falsely implicated for the murder of Gulla. It is desirable that the evidence to be considered against an accused is put to him in his examination under sec. 342 Criminal Procedure Code so that the accused may have an opportunity of explaining the same, but the mere fact that the attention of the accused was not drawn to the particular piece of evidence will be of no consequence, unless it was likely to result in the mis-carriage of justice. In the circumstances of the case it cannot be said that the accused was mis led, because his attention was not drawn to what Shri Maujiram stated as the accused had admitted the previous enmity with the deceased and his family. I, therefore, agree with Tyagi J. that the motive can be taken to have been established against the accused for the crime. 10. Both the learned Judges are one in holding that the extra judicial confession alleged to have been made by the accused before P. W. 1 Mannalaland P. W. 7 Surja cannot be said to have been proved beyond all manner of doubt. I have gone through the statements of these two witnesses and find myself in agreement with the learned Judges. As regards the presence of the accused near the scene of the occurrence when P. W. 2 Sheoram, P. W. 3 Lila and P.W. 4 Ram Kanwar happended to pass that side, Tyagi J. had believed the fact relying on the testimony of these witnesses, whereas Jain J. has considered their testimoney to be unreliable being against the common course of human conduct. Tyagi J. was greatly influenced by what Sheoram, a hostile witness, had admitted in his cross-examination. In cross-examination when the witness was faced with his committing court statement Ex. P/l he admitted to have stated that Umrao had told him that there was a quarrel between him and the deceased Gulla. The question is whether the statement Ex P/l could be read as substantive evidence in the case. Learned Deputy Government Advocate admits that this previous statement Ex.P/l was not tendered in evidence in accordance with sec. 288 Criminal Procedure Code. The question is whether the statement Ex P/l could be read as substantive evidence in the case. Learned Deputy Government Advocate admits that this previous statement Ex.P/l was not tendered in evidence in accordance with sec. 288 Criminal Procedure Code. The witness Sheoram had turned hostile in the very beginning while under examination-in-chief he did not state anything about Gulla and he trimmed his statement by saying that the accused had simply said that it was he who was crying. A previous statement could be made use of only to corroborate or contradict a witness. The previous statement in the committing court can, however, be used as substantive evidence, if it is brought on record in accordance with sec. 288 Criminal Procedure Code. Bhagwan Singh vs. State of Punjab (3) is an authority on the point. Apart from this the evidence of these three witnesses is not worthy of credence. The outcry according to Lila was "Ram Re, Toba Re, Hay Re". On hearing such an outcry it would be the natural human urge of a by-stander to find out what the cry was about. I am, therefore, in agreement with Jain J. regarding the value of the testimony of these three witnesses. 11. The next piece of evidence is the discovery of the dead body in pursuance of the information given by the accused Umrao. The main witness in the case is P. W. 21 Shri Suraj Singh, Investigating Officer. The information recorded by him in Ex. P/l5 is to the following effect: ^^eSaus xqYyk pekj ekth dh ykk dqvka dkafM;k fd tks ewrk ds M+gj esa gS ds ikuh esa xqYyk dh ykk dh Nkrh ij iRFkj tsoM+k ls cka/kdj Mky j[kh gS tks lkFk py dj cjken djk nwaxkA** Then in pursuance of this information P.W. 21 proceeded to the well and the dead body which was not floating at the time was taken out of the well and when it was so taken out it was found that a stone was tied over the dead body with a rope (vide Ex. P/2 at page 102 of the Paper Book). 12. Learned counsel tried to make two points firstly he submitted that when many persons were there at the time the accused is said to have given the information as recorded in Ex. P/2 at page 102 of the Paper Book). 12. Learned counsel tried to make two points firstly he submitted that when many persons were there at the time the accused is said to have given the information as recorded in Ex. P/15, the Sub-Inspector should have got the information attested by motbirs which was not done. In the second place, he argued, that it could very well happen that the Sub-Inspector had already got the information about the existence of the dead body in the well and then having taken it out fabricated the information Ex. P/15. 13. For recording the information to be given by an accused it is not necessary to have it attested though if persons were already there, as an act of prudence, the Sub-Inspector should also get signatures of the motbirs on such a record of an information, but by and large, when an Investigating Officer interrogates an accused, outside persons would not be there to witness what the accused was telling the Investigating Officer. For the information one has to go more or less, by the testimony of the Investigating Officer. Nothing has been suggested in cross-examination as to why Surat Singh would have fabricated this information, nor was there any suggestion in cross-examination to this witness that he already knew that the dead body was lying in the well and thereafter he had brought this Ex. P/15 into existence. I, therefore, do not find any disturbing factor regarding the discovery of the dead body at the instance of the accused. 14. As regards the discovery of the clothes of the deceased and the axe Art. 1, it is sufficient to say that: these articles were discovered from places accessible to one and sundry. Apart from this there is no evidence that Art. 1, the axe, belonged to the accused. Apart from this the origin of the blood on Art.1 could not be known on account of the disintegration of the blood by the time it came to be examined by the Serologist. Therefore, I am unable to agree with Tyagi J. that this recovery would connect the accused with the crime. 15. Lastly, I may deal with the circumstance of the recovery of the blood stained Dhoti Art.6 from the person of the accused. The blood on the Dhoti had been washed away. Therefore, I am unable to agree with Tyagi J. that this recovery would connect the accused with the crime. 15. Lastly, I may deal with the circumstance of the recovery of the blood stained Dhoti Art.6 from the person of the accused. The blood on the Dhoti had been washed away. The origin of the blood could not be found out as it was disintegrated at the time of its examination by the Serologist. Tyagi J. relied on Wasim Khans case (l) but in my humble view, the case is distinguishable. In that case the accused had himself stated that he and the deceased were alone in the cart after the two other occupants had left the cart. Thereafter the deceased was never seen alive by any one. The appellant was found in possession of the deceaseds goods and the appellant had made no efforts to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart. Besides this the accused was found in possession of a big blood stained knife though the stains were not shown to be of human blood. The circumstance of there being only blood as distinct from there being human blood on an article in a case of murder is undoubtedly a weak one when the origin of the blood is not established. I may with all due deference record my dissent to the opinion expressed by Jain J. that the testimony of P.W. 2 Sheoram, P.W. 3 Lila & P.W. 4 Ram Kanwar was in the nature of hearsay (vide observations at bottom of page-14 of the judgment). In Ratten vs. Reginam(4), their Lordships of the Privy Council had occasion to point out as to what would be hearsay, in similar circumstances. In that case the accused was charged with the murder of his wife. Her death had been caused by a shotgun. The accused plea was that the discharge from the gun was accidental and it occurred when he was cleaning his gun in the kitchen of his house. When the police reached the house two shotguns and a rifle with cleaning materials were found. The accused was unable to explain as to how the gun from which the shot was fired had come to be loaded. When the police reached the house two shotguns and a rifle with cleaning materials were found. The accused was unable to explain as to how the gun from which the shot was fired had come to be loaded. He stated that he immediately telephoned for an ambulance and shortly the police telephoned him, on which he had asked them to come immediately. It was established that at 1.09 p.m. on the day in question the appellants father had made a trunk call to the appellant which lasted 2 9 minutes. The conversation was perfectly normal and his father heard the voice of the deceased woman in the background making comments of a normal character. At about 1.15 p. m. a telephone call was made from the house; the telephonist at the local exchange who answered it, stated in evidence at the trial: I plugged into a number of Schuca 1494 (the appellants number) and......I opened the speak key and I said to the person "Number please" and the reply I got was "Get me the police please". I kept the speak key open as the person was in an bysterical state and I connected the call to Schuca 41 which is the police station. As I was connecting the call the person gave her address as 59 Mitchall Street. The telephonist added that, as she was connecting the call to the police station, the caller hung up and she (the witness) then told the police that they were wanted at 59 Mitchall Street. At about 1.20 p. m. the police officer telephoned the appellants house from the local police station and spoke to him. By this time the deceased had been shot. The shooting from which she had died almost immediately, had, therefore, taken place between 1.12 p. m. and 1.20 p. m. At the trial the prosecution sought to introduce the telepohonists evidence in order to rebut the appellants account of what had occurred immediately after the shooting. Objection was taken to this evidence on the ground that it was hearsay and that it did not come within any of the recognised exceptions to the rule against hearsay, but the objection was overruled. Their Lordships of the Privy Council observed: "In determining whether evidence should be admitted of statements made as Part of the res gestae as an exception to the rule against hearsay evidence. Their Lordships of the Privy Council observed: "In determining whether evidence should be admitted of statements made as Part of the res gestae as an exception to the rule against hearsay evidence. the test to be applied should-not be the uncertain one whether the making of the statement was in some sense part of the event or transaction; the proper test is whether the statement was so clearly made in circumstances of spontaneity and involvement in the event that the possibility of concoction or fabrication by the maker of the statement can be disregarded; conversely,if the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, it should be excluded; and the same is in principle true of statements made before the event." 16. In that case their Lordships pointed out that the evidence of the telephonist was not a hearsay evidence and was admissible as a relevant fact i. e. as evidence that contrary to the appellants account a call was made only some three to five minutes before the fatal shooting by a woman who could only have been the deceased; it was also relevant as possibly showing that the deceased woman was at the time in a state of emotion or fear. 17. Here, the witnesses when they reached the scene, if they were to be believed, heard the outcries and they saw the accused who blurted out what was happening or what had happened. This could not be hearsay in any accepted sense of the term. Be that as it may, the evidence of the three witnesses is otherwise unreliable as it does not accord with natural human conduct and, therefore, I am in agreement with Jain J. that it cannot be said to be established that the accused was seen near the site of the incident or that he had admitted that the man crying was deceased Gulla. 18. 18. The up-shot of the discussion is: (1) that the motive for the crime is there, (2) the extra-judicial confession of the accused is not proved beyond all manner of doubt, (3) the presence of the accused near the site of the incident in not established, (4) the evidence regarding the discovery of the clothes of the accused and the axe Art. I is of no value, (5) the recovery of a blood stained Dhoti Art. 6 from the person of the accused cannot carry the case against the accused very far, though I am unable to hold that this evidence is altogether valueless. 19. I hold, in agreement with both Tyagi and Jain, JJ. that the discovery of the corpse was made, in pursuance of the information Ex.P/15 given by the accused, from the Kothiwala well. The nature of the information shows that the accused was concerned with the putting of the dead body into the well. However, I am unable to agree with Tyagi J. that by the above evidence the case of murder can be said to have been brought home to the accused beyond all manner of doubt, nevertheless it is established that the accused caused the evidence of murder to disappear with a view to screening the offender. Tyagi J. did not make any observation regarding the offence under sec. 201 Indian Penal Code obviously for the reason that he was upholding the conviction of the accused for the offence of murder itself. Jain J. found difficulty in convicting the accused for the offence under sec. 201 Indian Penal Code, as the learned trial Judge had recorded the acquittal on that charge. 20. To my mind, Kalawati vs. Himachal Pradesh State (5) affords an answer to the problem. Accused Kalawati was the wife of Kanwar Bikram Singh. Kanwar Bikram Singh was murdered during the early morning hours of 16-7-51, as he lay asleep on the roof of his mansion at Bishanpura. He had several incised injuries on his person. The case of the prosecution was that one Ranjit Singh, the other accused, who was a distant cousin of the deceased committed the murder of Bikram Singh with the help and connivance of Kalawati. The two accused had developed an illicit intimacy with each other and the murder was committed to get rid of the husband of Kalawati. Ranjit Singh was charged with murder under sec. The two accused had developed an illicit intimacy with each other and the murder was committed to get rid of the husband of Kalawati. Ranjit Singh was charged with murder under sec. 302 Penal Code and Kalawati was charged under sec. 114 and 302 Penal Code. The Sessions Judge found Ranjit Singh guilty of the offence and sentenced him to death. He, however, acquitted Kalawati of the offence of abetment under sec. 302 read with sec. 114, but found her guilty under sec. 201 Penal Code, as she tried to screen Ranjit Singh. Both the convicts preferred appeals to the court of the Judicial Commissioner, Himachal Pradesh and the State preferred an appeal against the acquittal of Kalawati on the charge of murder. The Judicial Commissioner allowed Kalawatis appeal and set aside her conviction and sentence under sec. 201 I. P. C. At the same time, he allowed the State appeal against her and convicted her of an offence under sec. 302 read with sec. 114 Penal Code and sentenced her to transportation for life. Ranjit Singhs appeal was dismissed. Kalawati then appealed to the Supreme Court. Their Lordships of the Supreme Court came to the conclusion that the charge of abetment of murder was not established against Kalawati, but they were of the view that she was guilty of an offence under sec. 201 Penal Code. The question then arose whether she could be convicted under sec. 201 Indian Penal Code when the judicial Commissioner had acquitted her of that charge and there was no appeal against the acquittal. It is in these circumstances that their Lordships held as follows: "It was urged for her by Mr. Mathur that as she was acquitted of this offence by the Judicial Commissioner, and as there has been no appeal by the Government against the acquittal, she cannot now be convicted of the same by this Court. This argument proceeds on a fallacy. Sec 201 is not restricted to the case of a person who screens the actual offender 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 both of the main offence and under sec.201. The Judicial Commissioner acquitted Kalawati of the offence under sec. Sec 201 is not restricted to the case of a person who screens the actual offender 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 both of the main offence and under sec.201. The Judicial Commissioner acquitted Kalawati of the offence under sec. 201 for which she was convicted by the Sessions Judge only because he thought that the main offence itself, namely, murder, was brought home to her. But if we think for the reason given above that it would not be safe to convict her of the main offence the acquit-tal is no legal impediment to her conviction under sec 201. It was held by the Privy Council in Begu vs. Emperor, 52 lnd. App. 191 (P.C.) that in a charge of murder under sec. 302 a conviction under sec. 201 without a further charge being made was warranted by the provisions of sec. 237 Criminal P. C If Kalawati had been acquitted of an offence under sec. 201 independently of the charge of murder against her, it would have been a different matter. But as her acquittal is so intimately related to the charge of the main offence, and as it took place only for the reason that she was held guilty of murder, there is no bar to the restoration of the conviction under sec. 201." This case is on all fours, if I may say so, with the situation presented in this appeal. The charge for the offence under sec. 201 Indian Penal Code is undoubtedly connected with the charge of murder. Therefore, there could be no legal bar to the alteration of the conviction on the charge of murder to that under sec. 201 Indian Penal Code. Apart from this, the above passage further shows that their Lordships were of the view that sec. 201 is not restricted to the case of a person who screens the actual offender, 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 both of the main offence and under sec. 201 Indian Penal Code. Therefore, the learned Sessions Judge was not strictly right in thinking that the main offender could not be held responsible for the offence under sec. 201 Indian Penal Code. Therefore, the learned Sessions Judge was not strictly right in thinking that the main offender could not be held responsible for the offence under sec. 201 Indian Penal Code though he may not be convicted for that as a matter of practice. I am, therefore, in agreement with Jain J. to the extent that the charge under sec. 302 is not made out against the accused, but I am of the view that the conviction should be altered to that under sec. 201 Indian Penal Code. 21. The question that remains is that of passing a Proper sentence. The accused is in jail since 24-6 70 for undergoing the sentence of life imprisonment, when he was convicted by the learned Additional Sessions Judge under sec. 302 Indian Penal Code. Thus, the accused has already suffered more than 4 years imprisonment. Apart from this he was in custody during the trial and she trial had taken almost 2 years. It will, therefore, be just and proper to reduce the sentence of imprisonment to that already suffered by the accused appellant. 22. Accordingly, I allow this appeal in part. The conviction of the accused is altered from sec. 302 Indian Penal Code to that under sec. 201 Indian Penal Code and the sentence of imprisonment is reduced to that already undergone by the accused appellant. He shall be released forthwith, if not required in any other case.