The main legal point established in the judgment is the application of the presumption of fact under S.114 of the Evidence Act and the extent of presumption in cases of possession of stolen goods, emphasizing the discretion of the court in making such presumptions.

Thomas, J.

A moneylender was smothered to death. His dead body was wrapped in a polythene sheet and was dumped into a well. His wife and children knew about it only on 2-11-1986 after the dead body was lifted up from the well. Police charge sheeted six persons for his murder. First accused is one of his debtors. First accused and his wife fourth accused remained absconding throughout and hence the trial as against them could not be commenced so far. Second and third accused were convicted of the offences under Ss.120-B, 302 and 404 of the Indian Penal Code. Second accused was also convicted of the offence under S.201 of the IPC. Fifth accused was convicted only of the offence under S. 201 besides S.120-B of the IPC. Sixth accused was acquitted. For the main offence of S.302 of the IPC. Imprisonment for life, for the offence of S.201 of the IPC rigorous imprisonment for five years and for the offence under S.404 of the IPC rigorous imprisonment for two years were awarded as sentence. No separate sentence was awarded for S.120-B, of the IPC. These appeals have been filed by those convicted persons.

2. A synopsis of the case is this: Deceased Mathew alias Eappachan was doing money lending business in his village. Accused 1 and 4 had borrowed money from the deceased on different occasions, which snowballed into Rupees twenty eight thousand. When deceased pressed for repayment, those debtors fell out with him. Eventually, their grouse boiled up and they conspired with their nephew (second accused) and another person (third accused) to liquidate the deceased. On 28-10-1986 evening deceased left his house to go to a nearly village (5 kms away). When he reached near the culvert (south of Alurumbil house on Manchankuzhy - Thambelakad road), first aid second accused waylaid him and caught hold of his hands. Third accused closed his mouth and. nose and smothered him to death. After removing the valuables from the dead body, those three persons removed the corpse to first accused' s house. Thereafter, all the six accused chalked out a plan to dispose of the dead body. Pursuant thereto, the corpse was wrapped with a mat and covered with a polythene sheet and the body was dumped into the well situated in another property.

3. As the deceased did not return home, his wife and children made frenetic enquiries, which did not yield any useful result. On 2-11-1986 mornings P.W.7 spotted a oun ue side the well. The bundle was taken up in the presence of the police and the dead body contained therein was later identified to be that of Eappachan.

4. There is no serious dispute that deceased died due to smothering. P.W.55 Dr. Nelson, who conducted post-mortem examination on the dead body, opined that deceased had died of smothering. That doctor was not cross-examined at all. Though the doctor, did not say anything about the time of death (evidently because he was not asked about it), we have no doubt from the post-mortem features that deceased would have been smothered to death sometime after 6 p.m. on 28-10-1986.

5. There is practically no evidence against fifth accused. The only evidence against him is that he had gone to P.W.40 and requested him to help fifth accused to dispose of the dead body of one Eappachan who died in a quarrel will) first and second accused and that P.W. 40 refused to oblige fifth accused who then implored with him to keep that topic a secret. A rafter (M.0.27) was recovered from the cattle shed of first accused on the basis of what fifth accused told the police that the rafter was kept in the said cattle shed. Learned Sessions Judge, on the strength of the aforesaid evidence, convicted him of the offence under S.201 of the IPC. We cannot support the conviction since the evidence against fifth accused is too meagre for arriving at a conclusion that he was involved in causing disappearance of evidence of any offence. What has turned out against fifth accused, at the most, is that he had expressed eagerness to dispose o