1. Narayana Pillai Balakrishna Pillai of Kochu Veedu (Thenguvila), Mushanodi Muri, Thodiyoor Pakuthy, Karunagappally Taluk, has been convicted by the learned Sessions Judge of Qullon of two offences of murder and sentenced to death. The condemned prisoner, who will hereinafter be referred to as the accused, has preferred Criminal Appeal No. 110 challenging the conviction and the sentence. Referred Trial No. 9 is the proceeding arising from the submission by the learned Judge of the records of the case under Section 374, Criminal P. C., for confirmation of the sentence of death.
2. The case of the prosecution is that at about 4-30 p.m. on 30-3-1952 the accused caused the death of his wife Devaki Amma and her 55 days' old child by cutting them with a chopper and otherwise inflicting injuries on them, with the chopper and by kicking etc. The facts of the case, the stages the case passed through before the trial commenced and the plea raised by the accused at the trial are all clearly set out in the first three paragraphs of the judgment of the learned Sessions Judge and those paragraphs may with advantage be reproduced here:
This is a ease of murder of a woman and her child. Accused married Devaki Amma 15 or 16 years ago and they were living together in Kochuveettil house at Karunagappally. In course of time a clandestine connection developed between Devaki Amma and Bhaskara Kurup, the younger brother of accused, and a child was begotten in this connection in Makaram 1127. This was the 5th and the youngest child of Devaki Amma. Accused who had suspicions about the fidelity of his wife came across Devaki Amma and Bhaskara Kurup talking in a room in their house in the afternoon of 15-8-1127 and this confirmed his suspicion.
On 17-8-1127, noon he met Kuttan Pillai, Devaki Amma's father, and requested him to effect a dissolution of his marriage and Kuttan Pillai acceded to his request and said that he would go to Kochuveettil house in the evening for effecting a separation. Devaki Amma was unwilling to effect a dissolution and was at the same time insistent on continuing her illicit connection with Bhaskara Kurup. At about 4 p.m. on 17-8-1127 an altercation ensued between accused and Devaki Amma in the course of which she found fault with accused for having asked her father to effect a dissolution of their marriage and reiterated her determination not to agree to the separation. In a mood of excitement accused took hold of a chopper and began to cut Devaki Amma in various parts of her body, she was at that time suckling her child which was barely two months old in a cot in the western room or 'Chayippu' of their house. Accused inflicted several cuts with the same chopper on the child also. The child and the mother were dragged down and both were again belaboured by accused with the same weapon. He kicked the child in the pool of blood collected on the floor and in a minute or two Devaki Amma and the child succumbed to the injuries. This is the story told by the prosecution.
The occurrence was witnessed by Radha and Leelamma children of the deceased and accused, one aged 10 and the other 13. Within an hour of this tragic incident, Narayana Pillai, the younger brother of Devaki Amma, arrived at the scene and after hearing from Radha and Leela what had taken place and witnessing the ghastly sight of his sister and child lying dead in a pool of blood he went to the Police Station and gave the first information about the occurrence at 7-30 p.m. The Police at once repaired to the spot and held the inquest over the dead bodies next morning. Accused surrendered before the Police on 1-4-1952 corresponding to 19-8-1127 morning and as he expressed a desire to confess what he had done he was immediately sent to the Magistrate who forthwith recorded a confessional statement. After completing the investigation the Police put in their final report before the Taluk Ist Class Magistrate, Karunagappally on 16-4-1952. The Magistrate has committed accused to this Court to take his trial after the usual preliminary enquiry.
Accused pleads not guilty to the charge. During the course of the examination of witnesses the defence suggested by his counsel was that Bhaskara Kurup was the perpetrator of this crime. When accused was examined he said that he came upon Devaki Amma and Bhaskara Kurup lying in a cot after closing the doors of the room and on accused's advent there Bhaskara Kurup pounced upon him with a chopper and thereupon he lost his reason or consciousness and a row ensued between them. After some time Bhaskara Kurup went out followed by accused.
3. There is unmistakable proof in the case that the accused's wife Devaki Amma & her new born child met with their end at the hands of an assassin in the evening of 30-3-1952 and that the scene of the crime was one of the side rooms of 'Kochu Veedu' where the accused and Devaki Amma lived with their children. The accused did not dispute these facts in any of the courts. The inquest reports (Exs. C and D) over their dead bodies and the two postmortem certificates (Exs. J and K) give us an idea of the extent of the violence inflicted on the two victims. When first, the neighbours and afterwards the Police arrived at the scene of the crime, Devaki Amma and her child were seen lying dead in a pool of blood in one of the side rooms of the house.
Exhibit J, the certificate issued for the examination of Devaki Amma's dead body, shows that she had sustained two oblique incised wounds, one on the left side of the head and the other on the left side of the face. The bone beneath the head injury was fractured and the second injury caused the fracture of the nasal bones & the maxillary bone. There were fifty three punctured wounds. The incised wounds are said to have been caused by cutting with a chopper (M. O. 1) and the punctured wounds by hitting with the butt end of M. O. 1 after the wooden handle got displaced in the process of the attack.
Exhibit K, the post-mortem certificate issued for the examination of the child's body shows that it had sustained in all as many as twenty-five injuries. Of these, seven were incised ones, fifteen were contusions and three were linear abrasions. The incised wounds were all on the head, neck and the face and were obviously the result of cutting with the chopper. The other wounds are said to have been caused by kicking and/or by the fall from the cot when the mother and child were pulled down to the floor after the infliction of some injuries. The medical evidence is definite that Devaki Amma and the infant child died as the result of the injuries inflicted on them.
4. The question for our decision is as to who caused the injuries on Devaki Amma and the child and under what circumstances. At the outset of his arguments learned Counsel for the accused raised a preliminary point that the trial was illegal and that it should therefore be quashed. We have given the matter our best attention, but we cannot accept the argument. Our reasons therefor will be set out after we deal with the case on the merits,
5. In answer to the prosecution case that the accused it was who killed Devaki Amma and her child the accused stated before the Committing Magistrate's Court that he had not committed any crime and that it was Bhaskara Kurup or rather through him that the occurrence took place. It is difficult to understand what the accused meant by the latter part of the statement. At the Sessions trial, during the examination of the prosecution witnesses, the entire attempt of the defence was to make out that Bhaskara Kurup committed the acts which caused the death of Devaki Amma and her child and that the accused arrived at the scene after Kurup had left or was leaving the scene. But that case was given the go by when the accused made his statement before that court, In that statement he said that when he returned home at about 4 p.m. on 17-8-1127 (30-3-1952) he found all the doors of the house closed and Devaki Amma and Bhaskara Kurup lying on a cot, that seeing him enter the room where they were Bhaskara Kurup Jumped at him with the chopper he had kept beneath the pillow, that then a row ensued between all the three and that afterwards Bhaskara Kurup left the place. He also did not remain there long after Kurup left.
This, as pointed out by the learned Sessions Judge was an attempt to raise the plea of 'grave and sudden provocation' without at the same time admitting that Devaki Amma and the child died as a result of the injuries they sustained at the accused's hands. We do not seek to proceed as if there is an admission by the accused that he inflicted the injuries of which Devaki and the child died. The prosecution has to prove its case independently. There is however no evidence to bear out the version the accused gave at the trial. That version goes against the statement the accused made before the Committing Magistrate and also against the defence suggested in the Sessions Court during the cross-examination of the main prosecution witnesses.
Besides, the accused himself did not expressly state that he committed the crime under grave and sudden provocation. Neither the accused nor Bhaskara Kurup is seen to have sustained any injuries in the alleged row. Before us the learned Counsel for the accused without abandoning this part of the case attempted to show that Bhaskara Kurup must have committed these crimes and for that reliance was placed on the evidence the eye-witnesses and some other witnesses gave at the Sessions trial contradicting their own evidence in the commitment proceeding. We shall presently refer to that evidence.
6. Before that it has to be stated that the learned Sessions Judge has based the conviction of the accused mainly on the evidence of P. Ws. 2 and 4 gave in the commitment proceeding and the evidence P. Ws. 1 and 11 gave in that proceeding supporting P. Ws. 2 and 4. The evidence P. Ws. 7 and 12 gave at the Sessions trial, no doubt lent circumstantial corroboration to the testimony of P. Ws. 1, 2, 4 and 11 in the Commitment proceeding, but the conviction is really based on the evidence of the above mentioned four witnesses before the Committing Magistrate's Court. That approach by the learned Judge gave the learned Counsel for the accused an occasion to raise an argument that the conviction based on such evidence alone cannot be sustained even though such evidence has been duly made to form part of the records of the Sessions trial as laid down in B, 288, Criminal P. C. We shall presently show that on the facts of the case the argument does not really arise, but as the legal point raised was very seriously debated before us we shall express out views about it after dealing with the evidence in the case.
7. According to the prosecution P. Ws. 2 and 4, the two elder children of the accused and Devaki Amma, have alone seen the occurrence. P. W. 4, the eldest child, had gone to the neighbouring house with her younger sister and brother when the occurrence began. She returned to their house hearing the cries of P. W. 2. The evidence P. W. 2 gave in the commitment proceeding is to the effect that hearing the cries of her mother from inside the house she looked into the room where the mother was suckling the child and found the father inflicting injuries on the mother and the child with a chopper. She raised an alarm and hearing that P. W. 4 came running and she also saw the occurrence through the same window. Before the committing Magistrate P. W. 4 corroborated that version.
There these witnesses further said that the infliction of injuries went on for some time, that the father not only gave cuts to the mother and the child but also hit them with the butt-end of the chopper after its handle was separated from it. They also saw the father kicking the mother and the child. Afterwards he dropped the handless chopper into the courtyard through the eaves of the house and its fall caused some slight injuries to P. W. 4 on her left elbow and the ankle of her left foot. Later the accused came out when his cloth was found to be blood stained. Leaving the blood-stained cloth on the verandah he took a bath at the well after which he got into the house again with the chopper and his blood-stained cloth. Not long afterwards he left the house wearing a white shirt and a clean cloth.
While the occurrence was taking place P. W. 11, Devaki Amma's father came there and these children told him that their father was killing their mother and the infant child. He did not enter the house or even care to see the occurrence taut went away after saying that no mad act should be committed.
P. W. 12 is one of the closest neighbours to 'Kochu Veedu'. Hearing the cries of the children she asked them what it was about and P. W. 4 told her that her mother was being killed. Soon afterwards she saw the accused coming out of the house wearing a blood-stained cloth. She corroborated the evidence of P. W. 2 & gave before the Committing Magistrate (evidence?) about the accused taking a bath at the well, the removal of the bloodstained cloth and the chopper inside the house and later leaving the house after changing his cloth.
P.W. 7 is another neighbour. When it was past 4-30 p.m. on the date of the occurrence he saw the accused to the south of the latter's house on the lane adjoining the compound to the west. He saw a crowd of people in 'Kochu Veedu' and also heard cries from there. In answer to his query as to what the matter was the accused told him that he was coming after severing his relationship with his wife. Evidently it was an euphemistic way of stating what he had done.
P. W. 1 is the first informant in the case and he is the deceased Devaki Amma's youngest brother. While he was in his uncle's house about half a mile away from the scene of the crime he came to know of what had happened to his sister and her child. At once he left that place for 'Kochu Veedu' running and there p, Ws. 2 and 4 told him that their father had done to death their mother and the infant child and that afterwards he went westwards after taking a bath at the well and changing his cloth. In the first information statement which was given by P. W. 1 at the Karungappally Police Station which is but two miles from the scene of the occurrence, he mentioned that he came to know how his sister and her child met with their end from P. Ws. 2 and 4 and also that, of late, accused's relations with his wife were not at all cordial.
8. At the Sessions trial P. Ws. 7 and 12 stuck to their evidence in the commitment proceeding taut P. Ws. 1, 2, 4 and 11 went back on what they had said in that proceeding and attempted to substitute Bhaskara Kurup for the accused, that is they wanted to make out that it was Bhaskara Kurup who committed the acts which brought about the death of Devaki Amma and her infant child. P. W 1 denied having implicated the accused in the commission of the crime in his first information statement (Ex. A) and said that his evidence before the Committing Magistrate (Ex. B) was given as tutored by the Police.
P. W. 11 attempted to explain away his evidence at the preliminary enquiry (Ex, S) in the same way but in cross-examination by the Public Prosecutor he had to admit that all that was contained in Ex. S was true. Exhibit S besides corroborating the evidence P. Ws. 2 and 4 gave at the preliminary enquiry that p. W. 11 had come there while the occurrence was going on and that they told him about it also mentions that earlier in the day the accused had approached him and sought his good offices to effect a separation of his marriage tie with Devaki Amma. Her liaison with Bhaskara Kurup had become a public scandal and according to Ex. S. P. W. 11 had agreed to get accused's marriage with Devaki Amma dissolved and also told the accused that he would go there in the evening to effectuate it. At the Sessions trial he wanted to make out that he promised his intercession two or three days previous to the date of the occurrence and not on that date. Whatever that be ultimately he admitted the truth of the facts set out in Ex. S.
P. Ws. 2 and 4 like their uncle and grandfather also wanted to exculpate their father when their turn came to give evidence at the Sessions trial. Before the committal proceeding started they were both examined by the Karunagappally First Class Magistrate under Section 164, Criminal P. C. In those statements, Exs. E and L, as also in their evidence in the committal proceeding, Exs. F and W, they fully supported the prosecution case. If their evidence in the committal proceeding is to be believed and can be acted upon there is no denying that the lower court's conclusion that the offence arraigned against the accused have well been brought home to him is unassailable.
As to the credibility of their evidence, we do not in the circumstances of the case hesitate to hold that they gave true evidence in the committal court and that at the sessions trial they distorted their evidence with a view to save their father. The first information in the case was given Within three hours of the commission of the crime and that states that P : Ws. 2 and 4 had told P. W. 1, the first informant, that their father killed Devaki Amma and her child and that they saw it. Exhibit A fully corroborated the evidence P. W. 1 gave before the Committing Magistrate (Ex. B.) P. W. 12, who in giving her evidence remained steady throughout has told the court that f. W. 4 told her that her mother was being killed. She afterwards saw the accused coming out of the house wearing a blood-stained cloth and later removing the blood-stained cloth and chopper into the building. P, W. 7 saw the accused going away from the house when a crowd of people had gathered there. What the accused told him is also significant and if somebody also had murdered his wife and child we cannot expect the accused to leave the house in that fashion.
The evidence P. W. 11 gave before the Committing Magistrate fully supported the evidence P. Ws. 2 and 4 gave before that Court and with great reluctance P. W. 11 had to admit at the Sessions trial that his evidence before the committal court was all true. The neighbours and the police saw the dead bodies in a side room of the house in a pool of blood and with injuries which could have been caused in the manner told by P. Ws. 2 and 4. There is evidence in the case that four months prior to the occurrence the accused had reasons to doubt his wife's fidelity and that he saw the wife and her paramour talking with each other inside the house two days prior to the occurrence. He was anxious to have the marriage tie severed. Apparently the woman was not amenable for that. Against all this back-ground, corroborated as the evidence of P. Ws. 2 and 4 (Exs. P and M) is by their own prior statements under Section 164 (Exs. E and D and the evidence P. Ws. 1 and 11 (Exs. B and S) gave before the Committing Magistrate's Court we feel no hesitation in agreeing with the lower court that P. Ws. 2 and 4 gave the true version of the occurrence before the Committing Magistrate. Likewise we also hold P. Ws. 1 and 11 gave true accounts of all that they knew about the occurrence end the incidents leading to it before the Committing Magistrate,
9. The defence did not argue that the necessary formalities to entitle the Sessions Court to treat the evidence of witnesses examined before the Committing Magistrate as part of the evidence recorded at the trial have not been complied with. The attention of P. Ws. 1, 2, 4 and 11 was drawn to their prior statements and they were given sufficient opportunities to explain why they back upon their prior evidence. The contention raised was that Exs. B, F, M and S. the evidence P. Ws. 1, 2, 4 and 11 respectively gave before the Committing Magistrate should not have been acted upon without independent corroboration.
In the first place it is not true to say that there is no independent corroboration of their evidence before the committal court in the other evidence before us. P. W. 12, whom the trial court implicitly believed, has said that while the occurrence was going on P. W. 4 told her that her mother was being killed and that soon afterwards she saw the accused coming out of the house wearing a blood-stained cloth. We have already referred to the further statements made by her in her deposition. P. W. 7 saw the accused coming away from the house when a crowd of people had gathered there and considerable excitement prevailed there. Against the back-ground of the strained relationship between the husband and the wife and the husband's efforts to have a separation effected his statement to P. W. 7 that he was coming away after severing his connection with his wife was full of meaning. No doubt at the sessions trial P. W. 7 tried to improve upon the euphemistic answer the accused gave him by telling the court that the accused explained to him that he was coming away after killing his wife and child. No such statement was made by him in the committal court. Be that as it may, P. W. 7's evidence is another piece of independent corroboration of the evidence of P. Ws. 2 and 4 that the accused went westwards after bathing and changing his cloth.
We have indicated earlier that circumstantial corroboration of the evidence P. Ws. 2 and 4 gave before the committal court was to be found in the place and condition in which the dead bodies were found when the neighbours went there and in the injuries found on the dead bodies. The discovery of the blood-stained cloth alleged to have been worn by the accused at the time of the occurrence and the blood-stained chopper without a handle, as also of the handle, form yet further piece of material corroboration of the said evidence. Independent corroboration therefore exists in the case not only through direct testimony, but also from circumstances. Such corroboration relates not only to the commission of the crime complained of but also to the identity of the perpetrator of the crime.
10. It may not be out of place in this context to point out that the evidence P. Ws. 1, 2 and 4 gave before the committal court gains corroboration from their own prior statements. We have referred to the statements P. Ws. 2 and 4 made to P. Ws. l, 11 and 12. The first information statement P. W. 1 gave before the Police fully supports his evidence before the Committing Magistrate. Likewise the statements P. Ws. 2 and 4 gave in the commitment proceeding gains corroboration from their own prior statements under Section 164. The sequel will show that if the resiled evidence sought to be made use of under Section 288, Criminal P. C. needs corroboration, the statements made prior to the examination of the witnesses concerned, before the committal court can be made use of for the purpose of corroboration.
11. Before that and the main point of law are discussed, a few points bearing on the evidence have to be dealt with. It was argued that the evidence at the Sessions trial should be preferred to that given before the Committing Magistrate. One need only read the depositions of P. Ws. 1, 2, 4 and 11 to realize that in the Sessions Court they were deliberately trying to exculpate the accused from guilt. This we have already indicated in more than one place in this judgment. Learned Counsel also contended that there were indications in the evidence that all that P, Ws. 2 and 4 said before the committing court was not true. Reference was made to the evidence that P. Ws. 2 and 4 saw the accused hitting the child with the sharp butt-end of the iron handle of the chopper and to the absence of punctured wounds on the person of the child. We have shown that the woman had sustained more than fifty punctured wounds. Looking into a closed room from outside the witnesses may not have noticed exactly on whom those hits with the iron handle fell.
12. Next, learned Counsel for the accused reminded us of the criticism usually levelled against the testimony of child witnesses. P. W. 2 was only nine years of age at the time of the occurrence and P. W. 4 only 12. No oath was administered to either of them when they were examined before the Committing Magistrate but at the Sessions trial P. W 4 was examined on oath. The evidence that they gave in both the courts show that they were able to intelligently follow the questions put to them, and give rational answers.
In the face of the evidence P. Ws. 1, 11 and 12 gave that during the course of the occurrence or immediately thereafter P. Ws. 2 and 4 had told them that their father was killing or had killed their mother and the infant child there is no reason to think that in the evidence they gave before the committing magistrate or earlier under Section 164, Criminal P. C., they were giving out any tutored version. Their statements to the three witnesses mentioned above came out spontaneously and in their statements under Section 164 and their evidence before the committal court they only confirmed the earlier version given out by them during the course of the occurrence or immediately thereafter. The familiar criticism against the testimony of child witnesses has therefore no place in this case.
13. We shall now proceed to examine how far the argument that evidence before the committal court duly transferred to the records of the Sessions trial under Section 288 can be acted upon only when there is independent corroboration can be accepted. Section 288, Criminal P. O. (Act 5 of 1898) as amended by Act 18 of 1923, reads as follows:
The evidence of a witness (duly recorded in the presence of the accused under Chapter 18) may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case (for all purposes subject to the provisions of the Indian Evidence Act, 1872).
Before the amendment the section read:
The evidence of a witness duly taken in the presence of the accused before the committing magistrate may, in the discretion of the Presiding Judge, if such witness is produced and examined, be treated, as evidence in the case.
It will be noticed that Act 18 of 1923 introduced two changes. The words 'duly recorded in the presence of the accused under Chapter 18' have (been substituted for the words 'duly taken in the presence of the accused before the committing Magistrate'. Again the concluding words 'for all purposes subject to the provisions of the Indian Evidence Act, 1872' have been newly added. We are not concerned in this case with the first amendment but the second one will have to be considered. With or without that amendment the section does not say that the evidence brought into the records of the Sessions trial thereunder stood in need of corroboration before it could be acted upon. Nor is there any other statutory provision which enjoins that the evidence transferred to the file of the Sessions case as per the terms of the section would require corroboration for a court to base its decision upon it. An observation of Lord Goddard in - 'Mohammed Sugal Esa v. The King' AIR 1946 PC 3 (A), though made in a different context, would seem to be apposite here:
Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence.
Section 288 has come up for consideration before the Privy Council as also before the Supreme Court of India. Though the question as to corroboration did not specifically arise for consideration before those tribunals there are sufficient indications in their pronouncements that the section does not admit of any limitation as contended for by the learned Counsel for the accused. The preponderance of opinion in the Indian High Courts is also to the same effect. We snail however first refer to the Privy Council and the Supreme Court cases.
14. In - 'Fakira v. King Emperor' AIR 1937 PC 119 (B) the trial Judge had taken the view that one witness had obviously been tampered with, and in exercise of the discretion conferred upon him by Section 288 had admitted his deposition before the committing Magistrate as evidence. Objection was taken that the deposition, when admitted under Section 288, can only be used for the purpose of cross-examination within the provisions of Section 155, Evidence Act. Lord Thankerton who pronounced the opinion of the Board said that this contention was clearly untenable in view of the express provisions of the section that it is to be treated as evidence in the case for all purposes. His Lordship further said the words 'subject to the provisions of the Evidence Act, 1872' cannot be read so as to limit the purposes for which it may be used. Their Lordships' opinion is therefore categoric that courts cannot seek to narrow the scope of the section.
15. In - 'Tara Singh v. State : 2SCR729 the point under discussion was whether Section 145, Evidence Act, is not attracted when evidence before the Committing Magistrate is sought to be made use of under Section 288 Vivian Bose J. who delivered the judgment of the Bench composed of Fazl Ali, Patanjali Sastri, S. S. B. Das JJ. and himself said:
All that Section 288 does is to import into the law of evidence something which is not to be found in the Evidence Act, namely, to make a statement of this kind substantive evidence, but only when all the provisions of the Evidence Act have been duly complied with.
His Lordship was considering the conflicting views as to whether the provisions of Section 145 had to be complied with before the evidence in the committal court could be treated as evidence under Section 288. The above passage occurs during the course of the re-statement by the learned Judge of the argument that Section 145 has to be complied with before evidence in the committal court is sought to be used under 288; In setting out the opposite view it is stated:
But under Section 288, Criminal P. C. the previous statement becomes evidence for all purposes and can form the basis of a conviction.
Though their Lordships were not called upon to decide the question before us there is no reason to think that the two extracts above do not reflect their Lordships' views as to the utility of the evidence brought on record under Section 288. There is nothing in any subsequent decision of the Supreme Court which militates this conclusion. See - 'Bhagwan Singh v. State of Punjab : 1952CriLJ1131 .
16. We now come to the decisions of the Indian High Courts. In the words of Bhandari J. (now Chief Justice, East Punjab) in - 'Shamira Mandu V. Emperor' AIR 1946 Lah 380 (E) the classical judgment which was delivered by Sir Meredyth Plowden, J. in the eighties of the last century In - 'Umar v. Empress', in 51 Pun Re 1887 Cr (F), holds the field as to the true construction of Section 288. The view set forth there is definitely against the position contended for by the learned Counsel for the accused. Extracts from that judgment have been quoted with approval and the decision followed by Aikman J. in - 'Emperor v. Dwarka Kurmi', 28 All 683 (Q), by Sulaiman and Mukerji, JJ. in - Tully v. Emperor' AIR 1925 All 185 (H), by Suhrawardy, J. (Panton, J. concurring) in - 'Abdul Gani v. King Emperor' AIR 1926 Cal 235 (I), by Sir Douglas Young, C. J. and Monroe, J. in - 'Narinjan Singh v. Emperor' AIR 1936 Lah 357 (J), by Ram Lall, J. (Blacker, J. concurring) in - 'Mohammad Sarwar v. Emperor' AIR 1942 Lah 215 (K) and again by Ram Lall J. (Bhandari J. concurring) in - 'AIR 1946 Lah 380 (E)'. The relevant extract is to be found in - '28 All 683 (G)', and reads as follows:
That seems to me clearly to enable the Judge in his discretion to treat the deposition containing such evidence, when duly taken, as proved, and also to treat the evidence in the deposition, as if it had been given before him instead of before the Committing Magistrate.
The learned Judge goes on to say:
But I am wholly unable to and anything in this section which prescribes the value or weight to be attached to the evidence thus admitted ....'Once admitted it is on the same footing with all other evidence in the case, that is to say, it is to be considered by the jury or by the assessors and the Judge, according to the nature of the trial, as part of the materials upon which the verdict or a finding is to be given - '
'Its value is a question in the particular case for the jury or for the assessors, subject to the directions of the Judge in summing up, or for the Judge in cases where he is a Judge of fact
'Whether any portion or the whole of the evidence thus admitted is entitled to credit, and if so, to such a degree that a conviction may be based upon it wholly or in part, are very important questions for the jury or assessors, or for the judge, as the case may be, but they are in no way affected by this section. They are also very important questions for the Superior Court (when the verdict or finding is not final); but then also they are not affected by Section 288.
What this decision and those following it lay down is that when a Court is satisfied that the statements made by the witnesses before the Committing Magistrate were true and the Statements made by them subsequently before the Sessions Judge were false, the Court is at liberty to rely upon their previous statements. In - 'AIR 1936 Lah 357 (J), Sir John Douglas Young C. J. said:
There is nothing in the section of the Act itself to show that there need be corroboration of evidence so recorded. In our opinion evidence recorded in this manner in the Sessions Court is precisely the same as any other evidence. It has like other evidence to be examined with care. It is to be considered together with all the other surrounding circumstances. The learned Judge or Jury, as the case may be, must make up their minds whether the evidence is to be believed or not, and if it is believed, what value has to be placed upon it. No general law can therefore be laid down as to this. Evidence must be judged - as all evidence must be - according to the facts of each particular case. It is clear however in our opinion that there is no difference in law between evidence of this sort and any other evidence. Our attention has been drawn to several authorities and we may say that we are in entire agreement with the statement of the law on this point laid down by Plowden, J. in - '51 Pun Re 1887 Cr (F)'.
17. The earlier Calcutta decisions struck a different note but in - 'AIR 1926 Cal 235 (I)', Suhrawardy J. while expressing agreement with the decisions in - '51 Pun Re 1887 Cr (F)' and in - '28 All 683 (G)' added that at any rate the section as it stands now, makes the evidence recorded by the Magistrate admissible at the discretion of the trying Judge and that it further enacts that it is to be treated as evidence in the case 'for all purposes, subject to the provisions of the Evidence Act.' The learned Judge then went on to discuss the decision in - 'Jehal Teli v. King Emperor' AIR 1925 Pat 51 (L) and pointed out that under Section 288 as it stands now it must be held that the evidence recorded by the committing magistrate if duly admitted under the section must be treated as evidence for all purposes even as the basis of the finding or verdict and on a par with any other evidence before the Sessions Court or as substantive evidence on which the verdict of the jury or the judgment of the Judge can be based.
It is however open to doubt whether the learned Judge's criticism of the view expressed in - 'AIR 1925 Pat 51 (L)' is quite correct. In that case Bucknill, J. had referred to the conflicting view on the question and concluded the discussion by stating:
That the principle is quite clearly settled by this line of cases that unless there is clearly present, besides the evidence given before the Magistrate, evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge, the evidence given before the Magistrate cannot be effectively utilised in support of a conviction.
Regard being had to the reference the learned Judge makes to cases which favour the view we take here we are unable to interpret the above opinion as indicating that evidence taken before the Committing Magistrate should not be made use of to found a conviction unless there was independent corroboration. All the cases cited above say that before the evidence in the lower Court is acted upon the Judge or the jury, as the case may be, must be satisfied that that evidence was true and that the evidence before the Sessions Judge was false. Such satisfaction Bucknill, J. did not say should come from independent sources.
18. At this stage reference may be made to the decision in - 'Jaggar Singh v. Crown' AIR 1952 Pepsu 23 (M), a decision the learned Counsel for the accused brought to our notice. After referring to some of the cases we have cited here Teja Singh, C. J., who delivered the judgment of the bench consisting of himself and Chopra, J. said:
Taking into consideration these cases and a number of other decisions of High Courts in India, I would hold that unless the Court comes to the conclusion that the evidence admitted under Section 288, Criminal P. C. is of such a nature that it must be accepted as wholly true and there is nothing to shake its veracity, as a rule of caution that evidence should not be acted upon until there is forthcoming some other evidence of independent character that corroborates it.
This in our opinion is a correct evaluation of the decisions bearing on the point and it makes it clear that when the Court is satisfied on its intrinsic merits that the evidence before the committing court has to be held to be true it can be acted upon to found a conviction. Where it is doubtful which of the two conflicting versions i.e., that given before the Committing Magistrate or before the Sessions trial is true Court or Jury naturally will and necessarily must look for corroboration.
19. 'Sham Behera v. State : AIR1953Ori308 would appear to be the latest reported case bearing on the point. There the view Bucknill J. expressed in - 'AIR 1925 Pat 51 (L)' is cited with approval and after referring to some cases the defence counsel referred to in the argument, the learned Judge (Mohapatra J.) said at p. 310;
These decisions do not at all support the contention of Mr. Mohanty that it has got to be laid down as a matter of principle or even as a rule of prudence that in no cases the statement admissible under the provisions of Section 288, Criminal P. C. can serve as the basis for conviction without independent corroboration. In the Patna case, their Lordships intended to lay down that it was no doubt substantive evidence and was evidence for all purposes. But indeed, the Criminal P. C. does not lay down for the guidance of the Courts the amount of weight which should be attached to such evidence. That is a matter which is to be decided by the Court according to the facts and circumstances appearing in each case.
It is equally to be observed that when a witness makes two contradictory statements at different times, his evidence has got to be taken with a good deal of caution; but nevertheless it is not a question of principle or of any rule of prudence even, but is a question purely of the weight to be attached to such evidence. If the Sessions Judge finds sufficient reasons as to why he should accept the evidence taken before the committing Magistrate in preference to that taken by himself, he can base his judgment upon the statement admissible under the provisions of Section 288, Criminal P. C., even though the evidence is not corroborated by any other independent evidence. But it will be the incumbent duty of the Sessions Judge to search for convincing reasons from the materials on record why he should prefer the earlier statement to the later.
So far we have referred only to one case cited by the learned Counsel for the accused : - 'AIR 1952 Pepsu 23 (M)' and that does not support his contention. Before referring to other cases cited by him a few more cases which support our view point may be referred to.
20. In - Queen Empress v. Dorasami Ayyar', 24 Mad 414 (O), Subramania Iyer and Davies JJ. said that the section is intended to enable the Court to read the previous evidence as substantive evidence in the case at the trial, where for the purposes of justice, the adoption of such a course is found necessary by the Judge.
In - 'Vellaiah Kone v. King Emperor' AIR 1923 Mad 20 (P) it was held that the object and effect of Section 288, Criminal P. C., is to place the deposition in the committal enquiry on exactly the same footing as the deposition in the Sessions Court and that it is equally in the discretion of the Sessions Judge to believe it and act on it in preference to the deposition in his own Court, as it would be to believe and act on the latter, in preference to a contradictory statement before the Committing Magistrate. The decisions in - '24 Mad 414 (O)' & - '28 All 683 (G)' were followed.
The same view is seen expressed in - 'B. Peda Somadu v. Nethipudi Appigadu' AIR 1924 Mad 379 (Q). A similar view was taken by the Bombay High Court in - 'Maruti v. Emperor' AIR 1922 Bom 108 (R). It is said there that Section 288 makes evidence before the committal Court evidence in the case i.e., 'substantive evidence of the facts therein deposed to'. This case also follows - '24 Mad 414 (O)' and - '28 All 683 .(G)'.
21. Next and the last in this line of cases we refer to is the decision in - 'Hanumanprasad v. The Crown' AIR 1949 Nag 254 (S). An extract from the judgment in that case has been incorporated into his judgment by the learned Sessions Judge. The purport of the decision is that if a Sessions Judge found that there are material changes in the version given by a witness before him from the version the witness gave before the committing Court and that the witness has been won over, the Judge is fully entitled to have recourse to the provisions of Section 288 to bring on record the deposition of the witness in the committing Court and that the evidence so brought on record is good evidence and does not require corroboration from other sources. If the Court is satisfied that the evidence given earlier is true evidence, the Court could act upon it in preference to the evidence given at the trial. A further view held in that case that in bringing such evidence to the records of the Sessions trial it is not compulsory to invite the attention of the witness to that evidence is not a correct view and it conflicts with the Supreme Court decision in : 2SCR729 .
22. It is now time to refer to the decisions favouring the contentions of the accused's counsel. The earliest case which takes that view is a decision of the Calcutta High Court reported as - 'Queen v. Amanullah', 21 WR (Cr.) 49 (T). That is a decision of the year 1874 and at that time Cri. P. C. Act 10 of 1872 was in force. Provision corresponding to that contained in the present Section 288 was contained in Section 249 of the Code and it read:
When a witness is produced before a Court of 1 Session or High Court, the evidence given by him before the committing Magistrate may be referred to by the Court if it was duly taken in the presence of the accused person, and the Court may, if it thinks fit, ground its judgment thereon, although the witness may at the trial make statements inconsistent therewith.
The language of the section is a good deal more explicit than it is at present and yet one of the learned Judges expressly stated that evidence before the committing court before it is acted upon by the Sessions Judge must to his satisfaction be not only honest and true but it must also to a certain extent be corroborated by independent testimony before himself. The other learned Judge only said that in order that the discretion under the section may be exercised there must be substantial materials rightly before the court and reasonably sufficient to guide the judgment of the Court to the truth of the matter.
This statement we should think is not open to exception, but the other learned Judge introduced a limitation which was not warranted by the section. Strangely enough both the learned Judges had definitely found that the evidence which the prosecution sought to rely upon by resorting to the provisions of the section was thoroughly unworthy of credit. Some later cases have however followed the decision. The oft-quoted passage from the judgment of Plowden, J. in -'51 Pun Be 1887 (Cr.) (F)', was made in criticism of the view expressed in this early Calcutta case. One set of cases which follow it will presently be referred to in another connection.
23. We shall now refer to the cases which the learned Counsel for the accused relied upon in support of his contention. These cases are 'In re Chinna Papiah' AIR 1940 Mad 136 (U); - 'Nebti Mandal v. Emperor' AIR 1940 Pat 289 (V); - 'Parita v. Emperor' AIR 1946 Lah 48 (W); 'In re Muruga Goundan' AIR 1949 Mad 628 (X) and - 'The State v. Hardial Singh' AIR 1953 Pepsu 66 (Y). Generally speaking, we are unable to take these decisions as laying down any general principle that a statement admissible under Section 288 does require corroboration in all cases as a matter of principle or as a rule of prudence. Some of these cases cannot be extended beyond their own facts. This is how the decision in : AIR1953Ori308 , understood two of them, viz., - 'AIR 1940 Mad 13S (U)' and - 'AIR 1946 Lah 48 (W)' and we are in full agreement with that view. Further, the Lahore and the Madras cases do not relief even to the prior decisions of their own courts Which we have cited in this judgment as laying down the true rule, Teja Singh, J. was responsible for the decision in - 'AIR 1946 Lah 48 (W)', but the decision in - 'AIR 1952 Pepsu 23 (M)', which we have cited above is also by the same learned Judge. We are afraid the head-note to the Patna case goes far beyond what the decision lays down.
24. In - 'AIR 1953 Pepsu 66 (Y)', the Chief Justice (Teja Singh, C. J.) merely agreed to his colleague's conclusion to dismiss the state's appeal against acquittal on the ground that the prosecution had not proved beyond doubt accused's guilt or shown that the acquittal was wrong. It looks obvious that the view of Gurunam Singh J. that independent corroboration was needed was not shared by the learned Chief Justice. Besides, the Sessions Judge had believed the evidence given at the trial in preference to the evidence in the committal Court and the High Court was not prepared to differ from that view. It was also found that the transfer of the evidence in the committal court to the records of the Sessions trial was done 'irregularly, the attention of the witnesses not having been drawn to their prior statements. The transfer was indeed made after the witnesses were discharged after their examination. After having rightly found that the evidence cannot in these circumstances be looked into and also that the evidence was untrustworthy we fail to see why there should have been any attempt to enunciate the law.
25. To conclude the discussion of the point our considered opinion is that evidence brought on the records of the trial court as provided in Section 288 does not as a matter of law or caution require independent corroboration before it could be acted upon to found a conviction. If on all the circumstances of the case before the court it is of opinion that the evidence given before the committing Magistrate is true & that the subsequent evidence at the trial is due to circumstances on account of which the witness is not prepared to tell the truth, the Court is free to act upon the former set of evidence. To hold otherwise will be to defeat the object of the section. The section is intended to provide for the contingency that may arise when a witness who is produced before a court of Sessions holds back information and evidence and tells a different story from that which he gave in the preliminary enquiry before the Magistrate.
To accept the argument of the learned Counsel for the accused will be to read into the section something which is not there and the contention is also as we have shown against the weight of the authorities. The learned Sessions Judge was therefore right in treating the evidence furnished by Exs. B, P, M and S as substantive evidence and acting upon it to find the accused guilty of the two charges of murder arraigned against him.
26. Though the above is our view on the point of law raised, we have pointed out earlier that sufficient corroboration by independent oral testimony and indisputable circumstances exist in the case to bring home the guilt of the accused. Apart from corroboration by independent testimony and circumstances it is also permissible under law to utilise a first information statement or statements recorded under Section 164, Criminal P. C. in corroboration of the evidence given before the Committing Magistrate. See - 'AIR 1923 Mad 20 (P)' - 'Manar Ali v. Emperor' AIR 1934 Cal 124 (Z) and - 'Emperor v. Lalji Rai' AIR 1936 Pat 11 (Z1). Exhibits A, E and L therefore corroborate Exs. B, P and M respectively. P. W. 11 had himself admitted at the Sessions trial that all that he stated before the committing Magistrate in his deposition there (Ex. S) was true.
27. We have next to deal with the judicial confession the accused made before P. W. 5. That document is Ex. N. It was retracted even before the committing magistrate. The learned Judge while finding that it has been properly recorded and that there is no infirmity whatever attaching to its admissibility, did not seek to depend upon it to support his conclusion as to the accused's guilt in view of a line of cases which say that evidence relied before the trial court cannot be made use of to corroborate a retracted confession. It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength. Per Mahajan J. in - 'Puran v. State of Punjab : AIR1953SC459 . The learned Sessions Judge's comment about Ex. N is as follows:
There is the confessional statement of accused. I feel no doubt in thinking that it was a voluntary statement. As accused has retracted from it if that should form the basis of conviction it requires corroboration by other evidence. It may be said that such corroboration is furnished by Exs. B, F, M and S. There are certain decisions which go to say that the evidence of witnesses retracted in the Sessions court cannot be accepted as proper corroboration of a retracted confession. Inasmuch as Section 288, Criminal P. C. enables this Court to treat the evidence of witnesses recorded in the committing Magistrate's Court as substantive evidence in the case I fail to understand why such evidence cannot be accepted in corroboration of a retracted confession. However as judicial opinion seems to be not uniform in this connection, I am not placing any reliance upon Ex. N, confessional statement.
28. We are afraid the learned Judge took far too conservative a view in refusing to act upon the confession. He would have done better had he given effect to his own opinion about the question. The learned Counsel for the accused reiterated before us the argument that it was not safe to convict an accused person on his retracted confession corroborated even though it was by evidence brought on the record under Section 288. According to him the two cannot be Joined together and held as mutually corroborating each other so as to base a conviction upon them. The decision in - 'Sirkar v. Kunju Kunju Nair' 26 Trav LJ 975 (Z3) and the three cases relied upon in that decision were cited in support of the argument.
It is against the back-ground of the view that evidence brought on the records of the trial court under Section 288 cannot unless corroborated by independent evidence be made the basis of a conviction that the Travancore case mentioned now and the cases followed therein decided that resiled evidence cannot be made use of to corroborate a retracted confession. Once we hold that evidence transferred to the records of the Sessions, trial stands on the same level as evidence recorded, by the Sessions Court itself these decisions can no longer be held to be good law. The decisions the Travancore case relied upon are - 'Queen Empress v. Rangi', 10 Mad 295 (Z4); - 'Queen Empress v. Bharmappa', 12 Mad 123 (Z5) and - 'Empress v. Jadub Das', 27 Cal 295 (Z6). The latter case followed - '21 WR Cr 49 (T)' and the discussion in - 'AIR 1926 Cal 235 (I)', shows that even according to the Calcutta High Court the view held in those early cases cannot be held to be good law under Section 288 as amended in 1923.
We have already referred to the later Madras View - '24 Mad 414 (O)', - 'AIR 1923 Mad 20 (P)' and - 'AIR 1924 Mad 379 (Q)', departing from the view held in the earlier Madras cases. We cannot therefore accede to the proposition that evidence brought on the records of the case under Section 288 cannot be made use of to corroborate a retracted confession.
29. The only argument the learned Counsel for the accused made regarding the confession was de above one. We are at one with the lower court in thinking that the confession was absolutely voluntary and that there is no legal bar in admitting the same in evidence. The accused is an experienced Vakil's clerk and he was also a document writer. To say that he yielded to the police pressure or that the police had any motive to extract a confession from him does not commend itself to us as true. An English rendering of the confession finds a place in the lower court's judgment and that may with advantage be reproduced here:
The substance of Ex. N, the confessional statement is as follows : Accused married Devaki Amma in 1114 and they were living in, Kochu-veettil house. Four children were also born to them. For about 14 years prior to the date of Ex. N accused began to entertain a suspicion that Devaki Amma was having an illicit connection with Bhaskara Kurup and their relationship became unpleasant. From 15-8-1126 to 13-10-1126 accused was observing a vritham for a pilgrimage to Sabarimala and during this period he was strictly abstaining from having any intercourse with his wife, Devaki Amma became pregnant in Medom 1126 and gave birth to a male child on 20-6-1127. Accused's suspicion became confirmed. On 15-8-1127 noon accused came across his wife and Bhaskara Kurup talking each other in the western room of his house. As soon as Bhaskara Kurup saw accused he got out and went away. From that day accused refused to take food from his house. He asked Devaki Amma for dissolving their marriage for which course she was at first willing but subsequently she backed out of her consent and said obstinately that she would not agree to that course at any cost.
On 17-8-1127 accused requested P. W. 11 Devaki Amma's father to effect a dissolution for the sake at least of their children and P. W. 11 promised to go to his house within an hour for making a separation. When the accused came home Devaki Amma got angry for having told P. W. 11 about these things and reiterated her determination not to agree to the divorce. Accused again demanded her for a separation, but she persisted in saying that she should not agree to that course whoever might interfere in the matter. Devaki Amma was at this time suckling her child in the western room. At the words and adamant attitude of Devaki Amma accused lost his temper and began to cut Devaki Amma and the child with a chopper which he picked up from there. He inflicted two cuts on the head of Devaki Amma and one cut on the neck of the child. The handle of the chopper went off and he again inflicted several cuts and stabs on Devaki Amma and the baby with the same weapon. He cut the baby as it was not his child and could not maintain such a child. Devaki Amma and the child fell down and when they were about to die he left the place.
30. The material portions of the confession derive corroboration from Exs. B, F, M and S. As we have already referred to the contents of these documents, it is unnecessary to set out in detail the items of corroboration point by point. The commission of the crime, the circumstances under which it was committed and the motive behind it are all admitted in the confession. Once it is held that even though retracted it can be used for the case when corroborated even by resiled evidence, the guilt of the accused admits of no doubt.
31. Before we come to the preliminary point, it is convenient here to dispose of another argument raised before the lower court and repeated before us that the accused never intended to inflict any injury on the child and that the child must have got injured accidentally while injuries were being inflicted upon the mother. On that hypothesis it was contended that as against the child the assailant could, if at all, be made liable only for the offence of causing death by rash or negligent act. The nature of the injuries notice* on the two dead bodies belie that argument completely. While Devaki Amma had only two incised wounds the child had seven incised wounds. That one circumstance will show that the argument is absolutely untenable. Besides, the confession which we have held can be looked into runs counter to it.
32. We shall next deal with the preliminary point raised before us. The point was that the trial was bad and that on two grounds. First ground alleged was that even though there were two murders the charge on which the accused was tried contained only one charge of murder and it therefore contravened section 233, Criminal P. C. On the wording of the charge framed by the Sessions Court, the argument has absolutely no substance. The charge distinctly stated that the accused killed his wife Devaki Amma, that it amounts to an offence under Section 302, I. P. C., that he killed her infant child and that it amounts to another offence under Section 302. As such the attempt to bring the case within the rule of the decisions in - 'Kanai Lal v. Emperor' AIR 1948 Cal 274' (Z7) and - 'Sankaran v. Sirkar', 35 Trav LJ 392 (Z8), cannot succeed, By no stretch of imagination could the charge in this case be held to be open to the vice pointed out in those cases. A joint trial for the two offences of murder was not contended to be illegal and such a contention will not bear argument.
33. The other aspect of the preliminary point was that the learned Judge had not obtained the opinion of the assessors as to the two murders separately. The questions which the learned Judge put to the assessors have unfortunately not been recorded as the learned Judge ought to have done. Vide Section 309(1), Criminal P. C. But from that omission we cannot infer or hold that the. assessors were not asked about the two murders separately. The answers given by one of them cover both murders & there is no reason to think that the form, of questioning was different with respect to each assessor. The basis of the argument is that the three assessors speak of 'offence' and not 'offences'. In Malayalam it is not infrequently that the word 'Kuttam' is used in a plural sense. The judge ought to have recorded not only the answers given taut also the questions put. It is certainly an irregularity but in the light of the provision in Sub-section 2 of Section 309 that the Judge is not bound to conform to the opinion of the assessors, we do not think that there is any illegality in the trial or that any prejudice has been caused to the accused on account of the irregularity pointed out. It was said that the concluding part of the judgment would show that the Judge was not inclined to award the capital sentence for the murder of Devaki Amma and that it was because the child also was found to have been killed that a death sentence has been awarded. Assuming that counsel's reading of the concluding paragraph of the Judgment is correct, regard being had to Sub-section 2 of Section 309, we cannot find that any prejudice has been caused to the accused. If the assessors whose answers are said to be not explicit as to both murders had said that Devaki Amma alone or the child alone has been killed by the accused the Judge was not bound to accept it. Nor do we understand the concluding part of the judgment in the sense defence counsel wants us to understand it viz., that the Judge would not have awarded the death sentence for the murder of Devaki Amma.
34. Having found that the accused is guilty of two murders the question arises whether the death sentence passed should be confirmed. We cannot find any reason to think that that sentence cannot or should not be passed against the accused for either murder, especially for the murder of the innocent child. We confirm the sentence of death passed by the lower court. The reference is accordingly accepted. Criminal Appeal No. 110 of 1953 is dismissed.
(Leave to appeal to Supreme Court refused.)