JUDGMENT
Rajamannar Offg. C.J.
1. In Sessions case No. 36 of 1947 in the Court of Session, South Kanara Division, there were four accused. Accused 1 was charged for an offence under Section 302, Penal Code. Accused 1 to 3 were charged for an offence under Section 201, Penal Code, and accused for an offence under Section 201 read with Section 109, Penal Code. The learned Sessions Judge acquitted accused 1 of the offence under Section 302 but convicted him of an offence under Section 326, Penal Code, and sentenced him to rigorous imprisonment for five years. He found accused 1 to 3 guilty under Section 201 and sentenced each of them to rigorous imprisonment for 18 months, the sentences on accused l to run concurrently. Accused 4 was acquitted. C. A. NO. 683 of 1947 is by accused 1 and 0. 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 accused 1 of the offence under Section 802, Penal Code.
2. When these appeals first came on for hearing before Horwill and Mack JJ. an objection was taken on behalf of accused 1 that the trial was illegal because of a misjoinder of charges. It was contended that the offence under Section 201 was altogether independent of the offence under Section 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.
3. As the objection raised relates to a misjoinder of charges it is necessary to state the charges as framed. They ran as follows:
Firstly,That you, accused 1 (Mambady Krishna Bhatta) on 18th December 1946 at about 7-80 p. m. at Padyana in Korepady village did commit murder by intentionally causing the death of Thyampa Shetty, son of Sankar Shetty of Korepady village, Puttui taluk, by beating him with an iron rod and thereby committed an offence punishable under Section 302, Penal Code, and within my cognizance.
Secondly. That 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 1, caused the disappearance of the evidence of the commission of the said offence of murder by accused 1 by secretely cremating the body of the said Thyampa Shetty in Padyana on a hill, behind the house of the deceased, with intention of screening accused from legal punishment and thereby committed an offence punishable under Section 201, Penal Code, and within my cognizance.
Thirdly That you, accused 4 on the said day, time and place and in the course of the same translation abetted the commission of the offence under Section 201, Penal Code, by 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 Section 201, Penal Code, read with Section 109, Penal Code and within my cognisance.
The case foe 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 Tillage. He was living there with his wife and three children. Shortly before his death, he heard that accused 1 who is a Brahmin resident of the same village, had been complaining that his (the deceased’s) children were stealing cocoanuts from accused l’s garden. On the evening of the day of occurrence, the deceased was told about the complaint of accused l and the deceased is said to have remarked that accused 1 would not say such things unless he had seen the same personally if he was born of a true father. Accused 1 on hearing this went to the residence of the deceased at about 7-30 p. m, that night and asked the deceased as to what he had been saying. The deceased reiterated that accused 1 should not have been saying that the children were stealing cocoanuts from big garden unless he had seen the same with his own eyes if he had been born to a true father. Accused 1 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 and 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.
4. The relevant provision of the Code of Criminal Procedure on joinder of charges is Section 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 pro. pose to deal with the general principles which arise in the case except in relation to the particular facts of this case.
5. 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 accused l 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 Section 201, Penal Code along with the first accused who was accused also of an offence under Section 302, Penal Code.
6. In Begu v. Emperor 6 Lah. 226 : A.I.R. (12) 1925 P. C. 180: 26 Cr. L. J. 1059), five persons were charged under Section 302, 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 Section 201, Penal Code foe causing the disappearance of evidence. An objection was taken to the conviction without a further charge being made under Section 201, Penal Code but the objection was overruled by their Lordships of the Judicial Committee who considered that the case was covered by Section 237, Criminal P. 0. In that case it may be observed that all the five persons had been charged under Section 302, Penal Code with murder.
7. In Brij Bhushan Singh v. Emperor 19161 M. L. J. 147 : A.I.R. (33) 1946 P. C. 38:47 Cr. L.J. 336), the appellant was charged for an offence under Section 302, Penal Code originally; but he was committed for trial on the charge of culpable homicide not amounting to murder under Section 804, Penal Code. In the Court of Session the charge was altered to one of murder under Section 302, Penal Code and he was tried for that offence. He was eventually convicted under Section 304, Penal Code. At the same time, the appellant and four other persons who were accused 2 to 6 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 Section 201, Penal Code. Sir John Beaumont delivering the judgment of the board, after stating the facts, observed as follows:
No objection seems to have 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.
8. It was laid down by the Privy Council in Babulal v. Emperor I. L. R. (1938) 2 Cal. 295: [A.I.R. (25) 1938 P. C. 130 ; 39 Cr. L. J. 452), 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 Section 239(d) depended on the accusation and not on the eventual result of the trial.
9. 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 there, fore would not fall within Section 239(d), Criminal P. C. A joint trial was therefore illegal because it is settled law that the infringement of Section 238 read with Section 239(d), Criminal P. C. would, if made out, constitute an illegality, as distinguished from an irregularity. The conviction of accused 1 under Section 326, Penal Code, the conviction of accused 1 to 8 under Section 201, Penal Code and the acquittal of accused 1 of an offence under Section 802, Penal Code should be set aside. There will be two separate trials, one of accused 1 for the offence under Section 302, Penal Code and another of accused 1 to 8 each for an offence under Section 201, Penal Code.
10. Accused 4 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.