ORAL JUDGMENT

(Per : HON'BLE MR.JUSTICE A.R.DAVE)

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1.This is an appeal against the judgement and order dated

6th April, 1984 passed in Sessions Case No. 59/1983 by the Sessions Judge, Kutch at Bhuj. Before the Trial Court, the accused were charged under the provisions of Sections 302 and 201 read with Section 114 of the Indian Penal Code. By virtue of the impugned judgement, the Trial Court has acquitted the accused of the charges under Section 302 read with Section 114 of the Indian Penal Code, but they have been convicted for commission of an offence under the provisions of Section 201 of the Indian Penal Code. Respondent no. 1 accused has been sentenced to Rigorous Imprisonment for five years whereas respondent no. 2 accused has been sentenced to undergo Simple imprisonment for two years. Being aggrieved by the aforestated judgement and order, the State has filed this appeal.

2.The case of the prosecution before the Trial Court was that on or about 15th July, 1983, accused no. 1, with an axe, and accused no. 2, with a stick, had caused injuries to Babu Ladhuram Bhat with an intention to commit murder and as a result of the said injuries, Babu Ladhuram Bhat died. Upon knowing that murder had been committed, for avoiding the punishment, they destroyed the evidence of the murder by burying the dead body of deceased Babu Ladhuram Bhat and thereby they had committed an offence under the provisions of Section 201 of the Indian Penal Code.

3.The facts giving rise to the aforestated criminal proceedings, as narrated by the prosecution, in a nutshell, are as under;

3.1. Accused no. 2 was the wife of the deceased, whereas accused no. 1 was the nephew of the deceased. Accused nos. 1 and 2 were also first cousins. Accused No. 1, being nephew of the deceased, was staying with the deceased and his wife, accused no. 2. Accused nos. 1 and 2 had an illicit relation and once having been caught red handed by the deceased, the deceased wanted accused no. 1 to leave his house at once. However, accused no. 2, being interested in continuing her relationship with accused no. 1, tried to persuade her husband to permit accused no. 1 to stay with them till accused no. 1 got married. As the deceased never wanted accused no. 1 to stay with him due to his illicit relations with his wife, the deceased had some altercation with accused no. 2 in presence of accused no. 1. Accused no. 2, being more interested in staying with accused no. 1, started beating the deceased with a stick and also encouraged accused no. 1 to kill her husband. Thereafter, accused no. 1, with an axe and accused no. 2, with a stick, had caused serious injuries to the deceased, which ultimately resulted into his death. Upon knowing that they had committed murder of the deceased, so as to avoid the dire consequences, they decided to destroy all evidence, and, therefore, in a veranda near the temple, where the deceased was a pujari, the accused had dug a pit and buried the dead body of Babu Ladhuram Bhat.

3.2. So as to see that the fact with regard to the murder is concealed, accused no. 1 went to Bhuj Post Office on 26th June, 1983 and sent a telegram to Shri Bhaiyaji Jagam of Village Baroi stating that Babu Ladhuram Bhat had expired at Ahmedabad. Being illiterate, accused no. 1, had requested Shri Karim Mamad (P.W. No. 9) to fill up the telegram form containing the aforestated message and he had put his thumb mark at the place where the sender of the telegram was supposed to sign. The said telegram was sent on 26th July, 1983.

3.3.Thereafter, another telegram was sent by accused no. 2 in a similar manner, but with a message that all obsequial ceremonies, including cremation of Babu Ladhuram Bhat had been concluded at Ahmedabad. As stated earlier, accused no. 1 had put his thumb mark on the second telegram form also.

3.4.The said telegrams were received by Shri Bhaiyaji Jagam of village Baroi. Upon reading the said telegrams and getting the news, it was made known to the concerned persons that