Mahajan, J. - (1.) 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." Kisanrao, respt. 2, supported Limsey's plea of alibi. He further stated that Dattu Patel came to Limsey's house in his absence in the evening in the company of Virendra, P. W. 27, Gadi Patel, Jaikisan and Dilawar, that Dattu Patel smoked Ganja and drank liquor and suddenly died and that the body was thereupon left in the loft. When called upon to state his plea of defence, he said: "Gadi Patel, Ganpat and others found Dattu Patel drinking and dying of heart failure. 1 scolded them and it seems they and others deliberately wanted to dispose of the body in the manner they have done. I am innocent." Accused 3, Shaligram, denied having had anything to do with the incident. His plea in defence was: "I am innocent, I do not know now Dattu Patel came to die or how his body came to be buried. Ganpat had laid this charge against me falsely as he knew that I knew what he had done with the cycle parts." In support of his plea of alibi Limsey made a detailed statement according to which he left Nagpur on the afternoon of the 8th for Amravati and before Dattu had come to his house and did not return to Nagpur till after his surrender at Benares on the 16th. The plea of alibi was not accepted in the two courts below and was not seriously pressed before us and it must, therefore, be held that it was untrue. There is evidence on the record that up to the evening of the 11th and before a search warrant was issued on the 12th Limsey was at his house where the dead body of Dattu Patel had been entombed. In the absence of any evidence that Limsey had left his house, it has, in the ordinary course of events, to be presumed that he was residing at his ordinary place of residence on 8th October. He admittedly invited Dattu Patel by means of the letter above referred to meet him on that date and it is highly unlikely that any person or persons could have ventured to entomb a dead person on the third storey of his house in his absence and without his permission. His presence in the house is also established by the application that he sent to the Court of the Additional Deputy Commissioner, Nagpur, on 11-10-1949 in which he stated as follows: "I appear for the respondent in Revenue Appeal No. 601/33-7 of 1948-49, - 'Doma V. Eknath,' fixed for 11th October 1949. I am not well since the last four days. I therefore request your Honour to adjourn the hearing of the appeal to some other date and oblige." The statements contained in this letter are intrinsic evidence of the fact that till 11-10-1949 Limsey was at his house wherein the dead body of Dattu Patel had been entombed. We are, therefore, inclined to hold that the High Court was in error in thinking that the presence of Limsey at Nagpur at his house on 8-10-1949 had not been proved by the prosecution. This erroneous finding, however, cannot be said to have materially affected the conclusion reached by the High Court.;