Judgment

MAHAJAN J. : This appeal by special leave is directed against an acquittal order of the High Court of Nagpur in Criminal Appeals Nos. 121, 122 and 123 of 1950, preferred to that Court by the three respondents. Respt. 1, R. G. Limsey, is an advocate of the High Court of Nagpur, respt. 2, Kisanrao is related to Limsey in that his cousin is married to Limsey, and respt. 3 Shaligram is his friend and cilent. All the three respondents were tried for murder of one Dattu Patel and were charged in these terms :

"That you on or about the 8th day of October 1949 at Nagpur did commit murder by intentionally causing the death of Dattu Patel and thereby committed an offence punishable under S. 302 read with S. 34, I.P.C. and within the cognizance of the Court of Session."

They were convicted by the Sessions Judge, Limsey was sentenced to death, and Kishanrao and Shaligram were sentenced to transportation for life. All of them appealed to the High Court and were acquitted. A petition for enhancement of sentence of Kishanrao and Shaligram preferred by the State was dismissed.

2. The deceased, Dattu Patel was a resident of Taroda, district Wardha and at the time of the incident he was residing in the house of Virendra Malviya, P. W. 27, at Ganjapeth, Nagpur. It is alleged that he was a friend of Limsey and used to visit him from time to time and consult him regarding his domestic troubles, that he and a few others were in the habit of smoking ganja and drinking liquor at the house of Limsey and that for some time prior to the date of the occurrence relations between him and Limsey had become very strained. Dattu had complained to Virendra Malviya that Limsey had swallowed thousands of rupees from him and that he was an associate of thieves and gets thefts committed by others and shares the booty with them. Limsey in his turn had accused Dattu of defaming him and had threatened that if Dattu did not stop his defamotory propaganda he may go to the length of killing him. On 8-10-1949 Limsey wrote to Dattu to come and meet him that day. The letter is in these terms :

"Salutation to Dattu Patel ... You should see me today at once. Intimate time."

Dattu sent no reply, but it is alleged that he left Malviya s house at 3 P.M. on cycle and arrived at the house of Limsey at about 5 P.M. and was closeted with him in his sitting room on the third storey and never came out, that accused Kisanrao and Shaligram were also there in Limsey s office room in the second storey, that at about 8 p.m., Ganpat, a lad of 15, who was in the service of Limsey and was working in the kitchen, heard a cry "Oh, father, I am dead", from the room upstairs and he went up to see what the matter was, he found the door of the upper room closed but from a crack in the door he saw that Dattu was lying on the floor on his back, accused Krishnarao holding him by his hair, accused Shaligram holding his legs and accused Limsey bending over him with a sword raised to strike Dattu, that some neighbours also came at the cry and made enquiries and they were sent back by the mother of Limsey saying that nothing had happened.

On a search of Limsey s house on the third storey on 12-10-1948, a freshly constructed tomb of brick and cement from which foul smell was coming, was discovered. The tomb was opened up and the body identified as that of Dattu was taken out. Limsey was not found in the house at that time. He surrendered himself to the police at Benaras on the 16th, Kishanrao was arrested on the 14th. He led the police to the well from which parts of the cycle ridden by the deceased were discovered. On the same day, Shaligram, accused 3, was also arrested and he produced other cycle parts.

3. Limsey, when called upon to enter his defence, stated.

"I was not present and I do know how Dattu Patel died or his body came to be buried in my house. The incident appears to be deliberate case of accidental death and deliberate concealment of the body by some other person during my absence." Kisa