UMED SHEIKH Vs. EMPEROR

JUDGEMENT

(1.) The appellants in this case have been convicted under Section 201, Indian, Indian Penal Code, and sentenced to various terms of imprisonment--appellant No. 1 to one year, appellants Nos. 4 and 6 to six months and appellants Nos. 2, 3 and 5 to three months each. The charge was under Section 302, Indian Penal Code, for the murder of one Tamij and in the alternative under Section 201, Indian Penal Code, for concealing or disposing of the evidence of commission of that offence. The Jury unanimously found the accused not guilty under Section 302, Indian Penal Code, but found them guilty under Section 201, Indian Penal Code. The learned Judge, though he convicted them under Section 201, Indian Penal Code, was doubtful as to what was the real act committed by them on the deceased and in awarding punishment to the accused he assumed that they caused grievous hurt under grave and sudden provocation and accordingly awarded apparently lenient sentences on the accused.

(2.) In this appeal two points have been taken and pressed on our attention. The first is that the alternative charge under Secs.302 and 201, Indian Penal Code, is illegal and in support of this the learned Vakil has cited the decisions in the cases of Tarap Ali V/s. Queen-Empress 22 C. 638 : 11 Ind. Dec. (N.S.) 425 and Sumanta Dhupi V/s. Emperor 32 Ind. Cas. 132 : 20 C.W.N. 166 : 17 Cr.L.J. 4 : 23 C.L.J. 33. Whatever might have been the law previously, the point is now firmly settled by the recent decision of their Lordships of the Judicial Committee in the case of Begu V/s. Emperor . The view taken in the above cases of this Court is that the alternative charge under Secs.302 and 201, Indian Penal Code, is illegal inasmuch as the person who, commits the offence under Section 201, Indian Penal Code, is an accessory and he cannot be tried both as principal and accessory. The decision of the Judicial Committee has set all disputes on this point at rest by observing that under Secs.236 and 237, Cr.P.C. such a course was not only permissible but proper. In the case before their Lordships the accused persons were originally charged under Section 302, but convicted under Section 201, Indian Penal Code. It V was held that though they were not charged under Section 201 they could be convicted under Section 201 on a charge under Section 302, Indian Penal Code. The learned Vakil for the accused attempts to distinguish that case on the ground that there were no alternative charges there. We do not think that any distinction can be drawn on this ground. If an accused person charged under Section 302, Indian Penal Code, can be legally convicted under Section 201, Indian Penal Code, there can be no illegality in charging him under both the sections alternatively. In fact one of the grounds which the learned Counsel for the appellants at their Lordships Bar urged was that the appellants had no opportunity of meeting the case under Section 201 as there was no charge in respect of that offence. The objection must, therefore, be overruled.

(3.) The second ground on which it is said that the Judge misdirected the Jury is that he did not tell them that the evidence of P.Ws. Nos. 11 and 12 was no better than that of an accomplice and should be treated with great caution. The evidence of those two witnesses is that about midnight they saw the accused carrying the dead body of the deceased but they did not give this information for some time until they were threatened with prosecution for keeping back the knowledge of the fact when they gave out what they knew about it. Several decisions of this Court have been cited to show that a person who has knowledge of the commission of an offence but keeps quiet for some days is no better than an accomplice: Ishan Chandra V/s. Queen-Empress 21 C. 328 : 10 Ind. Dec. (N.S.) 850 and Queen V/s. Chando Chandalinee 24 W.R.Cr. 55. It should be ob served that in all these cases the Judges were considering the value of the evidence of the witnesses--the cases being open to them on questions of fact. The learned Judge in his charge did warn the Jury with regard to the evidence of those witnesses. He told them about the suspicion arising from the delay in the production of their evidence and he also placed before the Jury the explanation which those witnesses gave for the delay, namely, the influence of the landlord, and he further advised the Jury to place proper value on their evidence. We do not think that there is any substance in this ground either.