(Prayer: Appeals (disposed of on 12-4-1948) respectively against the orders dated 6th November 1947 of the Sessions Court, South Kanara in C.C. No. 36 etc. of 1947.)

Rajamannar, Offg. C,J.

In Sessions Case No. 36 of 1947 in the Court of Sessions, South Kanara division, there were four accused. The first accused was charged for an offence under S. 302 Indian Penal Code. Accused 1 to 3 were charged for an offence under S. 201 Indian Penal Code and the fourth accused for an offence under S. 201 read with S. 109 Indian Penal Code. The learned Sessions Judge acquitted the first accused of the offence under S. 302 but convicted him of an offence under S. 326 Indian Penal Code and sentenced him to rigorous imprisonment for five years. He found accused 1 to 3 guilty under S. 201 and sentenced each of them to rigorous imprisonment for 18 months, the sentences on the first accused to run concurrently. The fourth accused was acquitted. C.A. No. 683 of 1947 is by the first accused and C.A. Nos. 627 of 1947 and 664 of 1947 are by accused 2 and 3 respectively. C.A. No. 91 of 1948 is by the Crown against the acquittal of the first accused of the offence under S. 302 Indian Penal Code.

When these appeals first came on for hearing before Horwill and Mack JJ. an objection was taken on behalf of the first accused that the trial was illegal because of a misjoinder of charges. It was contended that the offence under S. 201 was altogether independent of the offence under S. 302. The learned Judges thought that the case raised a point of considerable importance and that it was desirable that it should be disposed of by a Full Bench.

As the objection raised relates to a mis-jonder of charges it is necessary to state the charges as framed. They ran as follows:

FirstlyThat you, accused 1 (Mambady Krishna Bhatta) on the 18th day of December 1946 at about 7-30 pm at Padyana in Korapady Village did commit murder by intentionally causing the death of Thyampa Shetty, son of Sankar Shetty of Korapady Village, Puttur taluk, by beating him with an iron rod and thereby committed an offence punishable under S. 302 Indian Penal Code and within my cognizance.

SecondlyThat you, accused 1 to 3 at the said place and in the course of the same transaction during the later hours of the same night and the early hours of the following morning knowing or having reason to believe that the offence of murder has been committed by accused I, caused the disappearance of the evidence of the commission of the said offence of murder by accused I by secretly cremating the body of the said Thyampa Shetty in Padyana on a hill, behind the house of the deceased, with intention o f screening accused I from legal punishment and thereby committed an offence puinishable under S. 201 Indian Penal Code and within my cognizance.

ThirdlyThat you, accused 4 on the said day, time and place and in the course of the same transaction abetted the commission of the offence under S. 201 Indian Penal Code by the accused 1 to 3 mentioned in charge 2 which was committed in consequence of your abetment and that you have thereby committed an offence punishable under S. 201 Indian Penal Code read with S. 109 Indian Penal Code and within my cognizance.

The case for the prosecution on which the above charges were framed was shortly as follows. The deceased Thyampa Shetty was a cooly working in the areca gardens in Korapadi village. He was living there with his wife and three children. Shortly before his death, he heard that the first accused who is a Brahmin resident of the same village had been complaining that his (the deceaseds) children were stealing cocoanuts from the first accuseds garden. On the evening of the day of occurrence, the deceased was told about the complaint of the first accused and the deceased is said to have remarked that the first accused would not say such things unless he had seen the same personally if he was born of a true father. The first accused on hearing this went to the residence of the deceased at about 7-30 pm that night and asked the deceased as to what he had been saying. The deceased reiterated that the first accused should not have been saying that the children were stealing cocoanuts from his garden unless he had seen the same with his own eyes if he had been born to a true father. The first accused saying that the reply was an insolent one, caught hold of the deceased and gave him two or three blows with an iron rod. The deceased dropped down and expired soon after. Subsequently, sometime after midnight, accused 1, 2 and 3, went to the house of the deceased find removed the body, accused 1 and 3 carrying the body and accused 2 following with a lantern. The body was cremated a short distance behind the house of the deceased.

The relevant provision of the Code of Criminal Procedure on joinder of charges is S. 239 which sets out when persons may be charged and tried together. The clause which has any possible application to the present case is clause (d) which runs as follows:

Persons accused of different offences committed in the course of the same transaction.

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. We do not therefore propose to deal with the general principles which arise in the case except in relation to the particular facts of this case.

It is clear that accused 2 to 4 were not alleged to have taken any part in the murder of Thyampa Shetty. There is no allegation, either of any conspiracy before the commission of the offence between accused 1 and the other accused to commit the murder. Accused 2 to 4 are alleged to have come upon the scene only after the commission of the murder by the first accused. It may be that accused 2 to 4 suspected that the first accused was connected with the death of Thyampa Shetty but that circumstance alone would not, in our opinion, render the offence of murder and the offence of cremation of the corpse parts of the same transaction. In the complete absence of any allegation that accused 2 to 4 or any of them were in any way connected with the commission of the murder or with any abetment of that offence or with any conspiracy to commit that offence, they could not be tried for an offence under S. 201 Indian Penal Code along with the first accused who was accused also of an offence under S. 302 Indian Penal Code.

In Begu v. King Emperor (6 Lah. 226 (P.C.) five persons were charged under S. 302 Indian Penal Code with murder and two of them were convicted of that offence. The evidence established that the other three had assisted to remove the body knowing that a murder had been committed. Without any further charge being made, they were convicted under S. 201 Indian Penal Code for causing the disappearance of evidence. An objection was taken to the conviction without a further charge being made under S. 201 Indian Penal Code but the objection was overruled by their Lordships of the Judicial Committee who considered that the case was covered by S. 237 Criminal Procedure Code. In that case it may be observed that all the five persons had been charged under S. 302 Indian Penal Code with murder.

In Brij Bhushan Singh v. The King Emperor (1946) 1 M.L.J. 147=59 L.W. 516 (P.C.) the appellant was charged for an offence under S. 302 Indian Penal Code originally; but he was committed for trial on the charge of culpable homicide not amounting to murder under S. 304 Indian Penal Code. In the Court of Session the charge was altered to one of murder under S. 302 Indian Penal Code and he was tried for that offence. He was eventually convicted under S. 304 Indian Penal Code. At the same time, the appellant and four other persons who were accused 2 to 5 jointly were charged with the offence of causing evidence of the commission of the said offence of murder to disappear, to wit, with the destruction or disposal of the body knowing or having reason to believe that the offence had been committed and with the intention of screening the offender from legal punishment, an offence punishable under S. 201 Indian Penal Code. Sir John Beaumont delivering the judgment of the Board, after stating the facts, observed as follows:

No objection seems to have been been taken to the trial of accused 2-5 jointly with the appellant, although it was not suggested that they had taken any part in, or had any knowledge of, the alleged murder by the appellant. However, as these accused were acquitted, this point need not be discussed.

The observations appear to imply that the objection, if it had been taken would have been upheld.

It was laid down by the Privy Council in Babulal Chowkhani v. Emperor (L.L.R. (1938) 2 Cal. 295 (P.C.) that the point of time with reference to which the objection as to misjoinder has to be decided is the time of the accusation and not the time of the trial. Their Lordships held in that case that because the accused were alleged to have conspired to commit offences and had committed overt acts in pursuance of the conspiracy, a joint trial was justified because in their Lordships opinion, it was sufficient for the purpose of justifying a joint trial that the accusation alleged the offence committed by each of the accused to have been committed in the course of the same transaction. The application of S. 239(d) depended on the accusation and not on the eventual result of the trial.

In this case, as already mentioned, no accusation was made that accused 2 to 4 were in any manner connected with the murder at the time or before it was committed. The case therefore would not fall within S. 239(d) Criminal Procedure Code. A joint trial was therefore illegal because it is settled law that the infringement of S. 233 read with S. 239(d) Criminal Procedure Code would, if made out, constitute an illegality as distinguished from an irregularity. The conviction of accused 1 under S. 326 Indian Penal Code, the conviction of accused 1 to 3 under S. 201 Indian Penal Code and the acquittal of accused 1 of an offence under S. 302 Indian Penal Code should be set aside. There will be two separate trials, one of the first accused for the offence under S. 302 Indian Penal Code and another of accused 1 to 3 each for an offence under S. 201 Indian Penal Code.

The fourth accused has been acquitted and no appeal was preferred by the Crown against his acquittal. His acquittal will stand and he shall not be tried again.