K.T. Koshi, C.J.
1. The Criminal Appeal and the Referred Trial arise out of the judgment of the learned Sessions Judge of Trivandrum in Sessions Case No. 12 of 1958 on the file of his court. Of the three persons who were tried before the learned Judge in that case, two of them, accused 1 and accused 2, stood individually charged for committing murder and for causing disappearance of evidence of murder by secretly burying the dead body, offences punishable respectively under Sections 302 and 201, Penal Code.
Alternatively they were charged with the commission of these offences read with Section 34, Penal Code. Accused 3 stood charged with abetment of murder and alternatively he was sought to be made liable for murder constructively under Section 34. There was also a charge against him under Section 201 and a further alternative charge under that section read with Section 34. Accused 3 was found not guilty of any of the charges arraigned against him and ho was accordingly acquitted. The learned Judge however found accused 1 and accused 2 guilty both of murder and of causing disappearance of evidence thereof.
While passing no separate sentence for the offence under Section 201, with respect to murder, the learned Judge sentenced accused 1 to be hanged by the neck till he is dead and accused 2 to undergo rigorous imprisonment for life. The two convicted persons have preferred Criminal Appeal No. 138 of 1958 against their convictions and sentences and in Referred Trial No. 9 of 1958 the learned Sessions Judge has submitted the records of thecase to this Court under Section 374, Criminal Procedure Code, for confirmation of the death penalty against accused 1.
2. Accused 1 is the son of accused 3 and accused 2 is the latter's son-in-law. The prosecution case against these persons was that during the night between the 3rd and the 4th December, 1957 accused 1 and accused 2 caused the death of one Pankajakshi Amma' alias Sainaba Beevi by strangulation. The process is said to have been to put an insulated wire around her neck and tighten it by twisting until life became extinct. While accused 1 and accused 2 are alleged to have done that, accused 3 was said to have been present at the place and abetted it.
The prosecution further alleged that afterwards the three accused persons jointly removed the dead body from the place where the murder was committed, to wit, the hut where the victim was living as the kept mistress of accused 1, and secretly buried it in a channel, about 200 feet away from the said hut. These acts were alleged to have been committed in furtherance of the common intention of all the three accused persons as they were all interested in doing away with the life of Pankajakshi Amma.
3. Pankajakshi Amma was a Nair woman and she was originally married to Pw. 9 in the case. He however divorced her on 27th May, 1953 as per Ext. P. 11, deed of divorce, when they had two children. Under Ext. P. 11 Pw. 9 had made a gift of an item of immovable property to his divorced wife and her children. Soon after the divorce accused 1, a Muslim, began to live with her in a building situate on the property so gifted, and a child was born of that association. Afterwards a second child was conceived and when the woman had advanced four months in pregnancy, accused 1 deserted her.
Even the house where they were living was demolished. Pankajaksbi Amma then took up residence in a place known as Elakaman and while living there she instituted proceedings before a criminal court against accused 1 for maintenance for herself and for her child. Ext P. 16 dated 13-8-1956 is a copy of that petition for maintenance. According to that Pankajakshi Amma had become a Muslim and she had entered into a proper Muslim marriage with accused 1. The petition went on to say that she was then 7 months advanced in pregnancy.
That petition however happened to be dismissed for non-prosecution (vide Ext. P. 17, the progress diary of the case). The case was dismissed on 14-12-1956 and prosecution led evidence to show that the petition happened to be dismissed for default as the parties effected a reconciliation, Not long afterwards they resumed cohabitation, this time in a hut put up in a puthuval in the possession of accused 3. The fateful event forming the subject of this case is said to have been enacted in that hut. It would appear that accused 3 and other relations of accused 1 did not feel happy over the association of accused 1 with the deceased woman.
The father was anxious that the son should many in their own community and with that end in view it is alleged he (accused 3) made a proposal that one of the daughters of Pw. 8 should be given in marriage to accused 1. Pw. 8 admitted that accused 3 had made such a proposal and that even earlier to that his own brother had mooted the question. His condition would appear to have been that in case accused 1 severed all his connectionswith the deceased, he would have no objection to give his daughter Pathumma Beevi in marriage to accused 1.
This negotiation took place about a month before the deceased's death and the prosecution would have it that it was to get Pankajakshi Amma out of the way to enable accused 1 to marry Pw. 8's daughter that she was killed. Since she came to know that accused 1 was intending to contract a new marriage Pankajakshi Amma would appear to have been making life almost impossible for accused 1. She used to threaten that she would kill their children as also accused 1 and afterwards commit suicide.
4. The evidence on record established beyond doubt that for some ten months prior to the date of the occurrence accused 1 and the deceased lived together with their two children in the hut referred to above. There is no direct evidence of murder except that furnished by the confessions of accused 1 and accused 2 which will be referred to in due course, but the deceased's disappearance from her place of residence began to be noticed by the neighbours from the morning of December 4, 1957. In fact nobody would seem to have been living in that hut from the said date.
These matters became the talk of the village and Pw. 1, a member of the Village Panchayat of the locality, came to know about them on December 7, 1957. The next day (December 8) he reported the matter to Pw. 17, the Sub-Inspector of Police, Kilimanoor. That Police Station is about 8 or 8 1/2 miles away from the village concerned, Madavoor. Apparently Pw. 17 took no action on the report and on December 9, Pw. 1 sent two petitions, one Ext. P. 4, to the Division Superintendent of Police, Trivandrum and the other, Ext. P 5, to the Assistant Superintendent of police of the same place. Pw. 1 sought to appraise those officers of what he had heard about Pankajakshi Amma.
Some clays would however appear to have passed before these petitions reached the hands of the police officers having immediate charge of the station limits of Kilimanoor. Meanwhile, on 12-12-1957 the Madavoor Panchayat passed a resolution concerning the mysterious disappearance of the woman and the rumours that were afloat in the village and that she was suspected to have been done to death by accused 1 and others. Though such a resolution was passed on December 12, it was not until December 17 that it was communicated to the authorities. On the latter date a copy of the resolution was forwarded to the Minister for Law. Pw. 1, however followed up the resolution by lodging formal information at the police station (Kilimanoor) about the facts that had come to his notice.
Pw. 17 recorded a statement from P. W. 1' and that statement (Ext. P. 1) formed the basis of the first information report in the case (Ext. P. 1 (a)). Ext. P. 1 besides referring to the factum of the disappearance of the woman also referred to the background of the relations between her and accused 1, that accused 3 was anxious to have the relations between accused 1 and the woman ended soon, that a marriage was pronosed for accused 1 with the daughter of Pw. 8 and that at the time of the information, accused 1, accused 2, accused 3 and some others were in hiding. A case being duly registered as a case of 'suspected homicide', Pw. 17 promptly started investigation and gave due information about it to his immediate superior Pw. 18, the Circle Inspector of Police, Attingal. P. W.
17 visited the locality on the 13th itself and P. W. 18 on the 15th.They found the suspected persons, namely, the three accused persons in the case were not at the locality. P. W. 17 would seem to have found the two young children of the deceased in the house of accused 3. This was on the 13th and P. W. 18 found them there on the 16th. P. Ws. 17 and 18 pursued the investigation and on the 16th forenoon accused 1 and accused 2 surrenderd themselves before P. W. 17 at a place not far away from the Government Reserve Forest in that village. That place was a few miles away from the residence of the accused persons. P. W. 17 effected their arrest and to him accused 1, first and accused 2, immediately afterwards, stated that the place where the dead body of Pankajakshi Amma lay buried could be pointed out by them.
This was at about 11. 30 A. M. (December 16). P. W. 17 and the two accused persons then proceeded to the hut where accused 1 used to live with the deceased woman and accused 1 then pointed out to P. W. 17 the place where the dead body was buried. That was nearly 200 feet away from the hut. Immediately P. W. 17 sent information about the arrest to P. W. 18 and the latter reached the place before 1'o clock. According to P. W. 18 accused 1 first, and accused 2 afterwards pointed out to him the place where the dead body lay buried. P. W. 18 then requisitioned the services of P. W. 15, the Executive Magistrate, Trivandrum, a lady, to disinter the corpse.
She arrived at the scene a little after 3 P. M. According to her evidence accused 1, first and accused 2 afterwards pointed out the place where the dead body lay buried and at her instance they were each given a spade. When the earth was dug out to a depth of about 3 1/2 feet the dead body of a female was found there. Ext. P. 12 is the mahazar drawn up by P. W. 15 for the exhumation of the corpse. The inquest over the dead body was also held by P. W. 15 and Ext. P. 13 is the inquest report. Both Exts. P. 12 and P. 13 show that some of the persons who were present there were able to identify the dead body as that of Pankajakshi Amma.
The evidence as to the identification will be referred to in the sequel. During the course of the inquest proceedings P. W. 15 recorded the statements of accused 1 and accused 2 also and at the trial those statements were proved respectively as Exts. P. 13 (a) and P. 13 (b). These two statements are really detailed confessional statements and the learned Sessions Judge admitted them in evidence overruling the defence objection. The dead body when taken out from the pit was found to be in a fairly advanced state of decomposition.
An insulated wire (copper strands) with a piece of brass attached to one end was found wound round the neck and the two ends of the wire were twisted together on the right side. The post-mortem examination was also conducted at the spot and P. W. 5, the Medical Officer, who held it, was of opinion that death was probably due to strangulation vide Ext. P. 6, the post-mortem certificate.
5. On the next day (December 17), it would appear accused 1 and accused 2 expressed a desire to the police to confess their guilt before a court and accordingly P. W. 18 sent them before the Sub-Divisional Magistrate, Attingal with a report, Ext, P 20. They were produced before the Sub-Divisional Magistrate at 10 A. M. on December 17 and he remanded them to judicial custody for a day. They were detained in the Trivandrum Sub-jail till the morning of December 18 and produced again before the Sub-Divisional Magistrate at 10 A. M.
He gave them further two or three hours' time for reflection and then after satisfying himself that accused 1 was proposing to make the confession voluntarily recorded his statement at 1 P. M. That statement is Ext. P8. Accused 2 gave his statement at 3 P. M. and that is Ext. P9. Before recording Ext. P9 accused 2 was also subjected to a Preliminary questioning to ascertain the voluntar nature of the confession' proposed to he made by him.
6. Mention has been made earlier that the case was originally registered as one of suspected homieide. The first information report (Ext. P-1)(a) while mentioning that suspicion centred round accused 1 and his people, in the column for entering the names of the accused persons what was mentioned was 'not known.' However after the happenings of December 16, P. W. 18 sent a report (Ext. P-18) to the Attingal Sub-Divisional Magistrate's Court to the effect that the investigation so far conducted by him disclosed that accused 1 and accused 2 had committed the murder of Pankajakshi Amma and that with a view to cause disappearance of evidence thereof they had buried the dead hotly.
That report went on to say that further investigation was being proceeded with against these persons for commission of offences punishable under Sections 302, 34 and 201, Penal Code. The next day, that is, on December 17, another report (Ext. P-19) was sent by P. W. 18 to the same court that the father of accused 1 (accused 3) was also found to be involved in the case and the case against him was one of abatement of the offences committed by accused 1 and accused 2. After further investigation the police laid their charge-sheet on the lines set out in Exts. P-18 and P-19 on 31-12-1957 against the three accused persons. The Sub-Divisional Magistrate, Attingal conducted the preliminary enquiry and committed the case to the Trivandrum Sessions Court. We have mentioned that the learned Sessions Judge acquitted accused 3 and convicted the other two persons.
7. At the hearing of the case before us while the learned counsel for the appellants strenuously contended that the learned Judge below went wrong in making use of the statement accused 1 made to P. W. 18 about the place of burial of the dead body and that the learned Judge was also in the wrong in admitting the confessional statements of accused 1 and accused 2 before P. W. 15 at the time when the inquest over the dead body was being held (Ext. P 13 (a) and P 13 (b) ) and making use of them against the accused persons, the Public Prosecutor though con-ceded that the statement of accused 1 to P. W. 18 was not legally admissible, maintained that Exts. P. 13(a) and P. 13(b), were rightly admitted and made use of by the lower court.
After a perusal of the records of the case we thought it necessary that for a proper decision of the question P. W. 15 should he recalled and re-examined. She was accordingly examined before us on 18th July, 1958. Even 'after that examination the Public Prosecutor tried to maintain his former position about the admissibility of the statements the witness recorded from the two appellants, but at a later stage ho gave up that position and conceded that those statements were not admissible and he did not want this Court to make use of them. In disposing of the case we shall not therefore be referring to the statement of accused 1 to P. W. 18 or to the statements (Exts. P. 13(a) and P. 13 (b) ) P. W. 15 recorded from accused 1 and accused 2.
8. The materials on which the lower court convicted the two appellants may conveniently be stated to be the following:
(i) The statement accused 1 made to P. W. 17 and that made later to P. W. 18 leading to the discovery of the dead body.
(ii) The conduct of accused 1 and accused 2 in pointing out the place of burial to P. Ws. 17, 18 and later to P. W. 15.
(iii) The confessional statements (Exts. p. 13(a) and P. 13 (b)) recorded by P. W. 15 at the time she conducted the inquest over the dead body.
(iv) The judicial confessions (Exts. P-8 and P-9) of accused 1 and accused 2 which the Sub-Divisional Magistrate, Attingal (P. W. 6) recorded on 18-12-1957.
(v) The corroboration which the confessional statements received from the evidence of P, Ws. 3 and 7, two neighbours, to the effect that they heard the eries of the deceased woman during the night between 3rd December and 4th December 1957.
(vi) The evidence of P. Ws. 4 and 7 to the effect that they saw the three accused persons together at about 4 P. M. in the morning of December 4, very near the house of accused 3, when accused 3 was seen carrying a spade in his hand, accused 1 his elder child and accused 2 the younger.
(vii) The fact that the hut where accused 1 was living with the deceased woman was found deserted from the morning of December 4 and that a few days later all the three accused persons were found to have absconded.
(viii) The fact that P. W. 17 saw the children of accused 1 at the house of accused 3 on December 13 when he visited that house and that P. W. 18 had seen there on December 16.
(ix) The fact that the dead body when recovered was found to have an insulated copper wire around the neck and the further fact that that was one which accused 1 removed from the cycle shop of P. W. 10 a few days before the death of Pankajakshi Amma.
(x) The motive which all the three accused persons had in getting the deceased woman out of the way to enable accused 1 to marry in his own community.
We have already mentioned that the statement accused 1 made to P. W. 18 and the confessional statements, Exts. P. 13(a) and P. 13(b), are even according to the prosecution not admissible tin evidence. aS indicated earlier we do not propose to depend upon those materials at all to adjudge the guilt or otherwise of the accused persons though We may have to refer to them to point out that in our opinion the learned Judge below went wrong in admitting those statements in evidence and making use of them against the accused persons. Of the other items of evidence depended upon by the learned Judge we do not find our way to accept some of them and the sequel will explain what those (items are.
(9-15) We shall now proceed to make an independent examination of the evidence and circumstances of the case to determine how far the learned judge was right in convicting the two appellants of the offences they stood charged with. (After so examining the evidence & circumstances his Lordship concluded:) From the discussion we have so far made it is clear that the salient aspects of the occurrence found mentioned in Ext. P. 8 have received ample corroboration from the evidence and circumstances of the case.
The recovery of the dead body from the place pointed out by accused 1, that a copper wire was seen twisted around the neck, that the skin and the tissues beneath the place where the wire was seen had bluish discolouration, that the medical evidence showed it to be a case of strangulation and that there was independent evidence as to how the accused came by the wire seen around the neck of the body, are some of the more important items of corroborative evidence which give assurance to us to accept the confession as both true and voluntary. To add to these we have also independent proof regarding (i) the motive, (ii) the deserted appearance from the morning of December 4 of the place where accused 1 lived with the deceased woman, (iii) the disappearance of the accused from the locality and (iv) that the children of accused 1 were seen at his father's house, during the period the accused persons were in hiding In the circumstances we have no hesitation to confirm the lower court's conviction of accused 1 for the offence of murder and for the offence of causing disappearance of evidence thereof by burying the dead body.
16. We have in an earlier paragraph of this judgment set out the various materials on which the lower court acted in finding the accused guilty and we had also indicated there that we were not prepared to accept some of them. We had particularly in mind then the materials referred to as Nos. (v) and (vi) in that paragraph namely, that P. Ws. 3 and 7 heard the cries of the deceased woman during the night of the occurrence and that later by about 4 A. M., P. Ws. 4 and 7 had seen the three accused persons together near the house of accused 3 when accused 3 was seen carrying with him; a spade and accused 1 and 2 the two children of accused 1.
A reference to paragraphs 13 and 14 of the lower court's judgment would show that the lower court had not chosen to believe the three witnesses referred to entirely, that is, some portions of their evidence were found to be not worthy of credence. On a careful perusal of the testimony of these witnesses we could hardly find any justification for picking and choosing some parts for acceptance and other parts for rejection.
If as mentioned by two of these witnesses (P. Ws. 3 and 7) they had heard the cries of the woman during the night of the occurrence or as mentioned by P. W. 4 and P. W. 7 they had seen the accused during the early hours of the ensuing morning, some positive steps towards lodging a complaint would normally have been taken even on the succeeding day. The lower court has not left any record as to the demeanour of these witnesses and our reading of their evidence does not inspire confidence in us to accept the same as true. Even without their evidence there is ample corroboration for the confessional statement of accused 1.
17. Next we shall refer to the case against accused 2. The lower court rightly refused to admit as evidence his statements to the police of the place of burial as they already knew about it from accused I -- see per Bose J., in Aher Raja Khhna v. State of Saurashtra -- AIR 1956 SC 217 at p. 223 Para 20 (A). His (accused 2's) conduct in pointing out the place of binial has also been rendered useless by the manner in which P. Ws. 17. 18 and afterwards P. W. 15 made him do that. Their evidence shows that accused 2 was with them when accused 1 pointed out the place.
The case against accused 2 must therefore mainly depend upon his retracted confession (Ext. P. 9). There, as in Ext. P. 8, there is reference to the fact that accused 1 found life impossible for him after the deceased woman came to know of his intentions to marry a Muslim. Other material facts found there are that accused 1 had invited him to go over to his residence during that fateful night and that there he joined hands with accused 1 inbringing about the death of the woman by tightening the copper wire around her neck.
He admitted having held one end of the wire and helped accused 1 to strangulate the victim. He would however have it that when he went there he found a quarrel between accused 1 and the deceased woman and he entered the hut only after hearing the cries of the woman and that then he found that accused 1 had already put the copper wire around her neck and was tightening it while the woman was holding accused 1 by his private parts.
Accused 1 did not refer to any such conduct or action on the part of the woman. As pointed out by the lower court, probably accused 2 wanted to justify his action in lending a helping hand to accused 1 to tighten the wire round the neck of the woman as if it was in defence of the person of accused 1, but as further observed by that court, assuming there was occasion to defend or protect the person of accused 1, accused 2 not only far exceeded that right but even on his own showing also engaged himself in tightening the wire even after the woman fell down.
The woman died soon after. Even if his version is fully accepted, Exception (2) to Section 300, penal Code would have no application to such deliberate act of strangulating a woman to death. Not only could there have been any good faith for the action, but it is also clear that more harm than was necessary for the purpose of defending accused 1 was caused. Indeed accused 1 was himself engaged in the act of strangulating the woman when accused 2 joined him in that act. Whether his attempt to justify his conduct be true or not, he admitted that ho actively participated in twisting the copper wire around the neck of the woman even after she fell down and that she soon died. He also admitted that thereafter the two together buried the dead body in the channel close-by, that then they removed the children from the hut and that afterwards they absconded from the place the next morning, remaining in hiding until they surrendered before P. W. 17 on the forenoon of December, 16.
Like accused 1, both in the committal court and at the sessions trial he went back on this confession, the reason given being the same as accused 1 gave. That did not impress the lower Court at all as true. It does not impress us either. He is the brother-in-law of accused 1 and his confession also shows that the relations between accused 1 and his parents had become strained on account of the intimacy with the deceased woman. Though the recovery of the dead body preceded the confession, the recovery as also the presence of the Copper wire on the neck and the medical evidence as to the cause of death really lend corroboration so as to make the confession acceptable.
As repeatedly pointed out by the Supreme Court it is not necessary that the corroboration must come from facts and circumstances discovered after the confession -- see Hem Raj v. State of Ajmer, AIR 1954 SC 462 (B) and Balbir Singh v. Punjab State, AIR 1957 SC 216 (C). Corroborated as the confession is by the material circumstances referred to above, we agree with the lower Court that the offence of murder and that of causing disappearance of evidence thereof have been brought home to accused 2 as well.
18. The two decisions of the Supreme Court now referred to are also authorities for the position that the rule of prudence usually observed with reference to confessions does not require that each and every circumstance mentioned in the confession with regard to the participation of the accusedperson in the crime must be separately and independently corroborated. A more recent case has, if we may say so, carried the matter further. That decision is reported as Subramonia Goundan v. State of Madras, AIR 1958 SC 66 (D). What Govinda Menon, J. (Sinha and Kapur, JJ. concurring) pointed out there may usefully be quoted here. At p. 71 of the report, in paragraph 14 of his judgment, the learned Judges stated :
'... A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same.
It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being In re Kesava Pillai, ILR 53 Mad 160; (AIR 1929 Mad 837) (E) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one of the latest cases being AIR 1957 SC 216 (C), but it does not necessarily mean that each find every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made.
It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. In this connection it would be profitable to contrast a retracted confession with the evidence of an approver or an accomplice. Though under Section 133 of the Evidence Act a conviction is not illegal merely because it proceeds on the uncorroborated testimony of witnesses, illustration (b) to Section 114 lays down that a court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. In the case of such a person on his own showing he is a depraved and debased individual who having taken part in the crime tries to exculpate himself and wants to fasten the liability on another.
In such circumstances it is absolutely necessary that what be has deposed must be corroborated in material particulars. In contrasting this with the statement of a person making a confession who stands on a better footing, one need only find out when there is a retraction whether the earlier statement, which was the result of remorse, repentance and contrition, was voluntary and true or not and it is with that object that corroboration is sought for. Not infrequently one is apt to fall in error in equating a retracted confession with the evidence of an accomplice and therefore, it is advisable to clearly understand the distinction between the two.
The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, generalcorroboration is sufficient while an accomplice'sevidence should be corroborated in material particulars. In addition the court must feel that the reasons given for the retraction in the case of a confession are untrue.'
In the light of these authorities we do not for a moment hesitate to agree to confirm the conviction of accused 2 as well.
19. What remains for us is the question of sentence. But before we proceed to consider that we shall refer to the question how far the learned Sessions Judge was right in admitting as evidence the statement of accused 1 to P. W. 18 about the place of burial and its to what the legal objections to the admissibility of Exts.P-13 (a) and P-13(b) are. As for the statement of accused 1 to P.W. 18, as mentioned earlier, though the lower Court thought mat to be admissible, before us the learned Public Prosecutor stated that he did not want this Court to depend upon that statement at all for any purpose.
P.W. 18 was sent for by P.W. 17 after the latter took the accused persons to the scene of the crime and they had pointed out to him the place of burial of the dead body. The report P. W. 17 sent to P. W. 18 is not before us, nor do we know what the nature of the information conveyed has been. According to P.W. 18, as soon as he reached the spot he questioned accused 1 and later accused 2 and they then pointed out both the scene of the crime as also the place of burial. It was accused 1 who pointed out these places first.
The point of the objection to the admissibility of the statement of accused 1 to P.W. 18 about the place of burial is that there was no 'discovery' of the place of burial or of the dead body thereafter pursuant to the information accused 1 gave to that witness. P.W. 17 had already been informed about it by accused 1 and he had also pointed out the place of burial. It is idle to think that P.W. 18 had not the information about the place of burial from P.W. 17. Even otherwise the statement of accused 1 to P.W. 18 is only a repetition of what he had told P. W. 17.
The statement of accused 1 to P.W. 18 therefore clearly comes within the rule of the decision in In re Chenna Reddi, AIR 1940 Mad 710 (F), where it has been enunciated that it is the first statement of the accused to whomsoever made, that leads to the discovery of the fact, if a fact is discovered. The learned Sessions Judge distinguished this case on what appears to us to be mere fanciful grounds and the reason he states for admitting the statement is no answer at all to the legal objection the defence raised before him as to the admissibility of the statement of accused 1 to P.W. 18.
The learned Judge has observed that in In re Chenna Reddi (F) and similar cases what the learned Judges who decided those cases condemned was the practice of the police getting accused persons to repeat their statements to the police before Panchayatars and get the evidence of the latter at the trial, and then went on to say that in the present case the confession made by accused 1 to P.W.18 who was primarily in charge of the investigation and to whom the confession was made during the course of the interrogation by him was not subject to any such infirmity.
He further observed that it was the right and duty of P.W. 18 to question the accused independently. That may no doubt be true, but that does not mean that whatever information he gathered from the accused regarding the place of burial would be admissible in evidence. In one of the Supreme Court decisions referred to earlier, Aher Raja Khimv. State of Saurashtra (A), the rule enunciated in para 20 of the judgment of Bose, J., is the same as what the learned Judges in the Madras case have stated. In view of the learned Public Prosecutor's confession that the statement of accused I to P. W. 18 was not legally admissible, we do not consider it necessary to refer to this aspect in greater detail.
20 We shall now refer to the objection to the admissibility of Exs. P-13 (a) and P-13 (b). P.W.15, the Executive Magistrate recorded those statements during the course of the inquest proceedings. Admittedly the requirements of Sections 164 and 364, Criminal Procedure Code have not been observed by the witness in recording them. The learned Judge below took the view that those statements were not hit by the rule of the decision in Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2) (G), because P.W. 15 though a First Class Magistrate was by Proceedings of the Government of Travancore-Cochin Order No. CJ 3-12614/54/C S dated 29-4-1955 incompetent to record the confession of an accused Person under Section 164, Criminal Procedure Code.
As per the allocation of powers between the Judicial and Executive Magistrates as per that Order (Para IV, Clause 16, Sub-Clause (8)) the powers under Section 164 are allocated to Judicial Magistrates, but the said Order has been issued by the Government only by way of administrative instructions to the Judicial and Executive Magistrates and to the Police and in our opinion the said Order cannot override the statutory provision in Section 164, Criminal Procedure Code, authorising every First Class Magistrate to record statements and confessions under that section.
Government may, no doubt, have thought it convenient for administrative purposes to have a division of labour between the Judicial and Executive Magistrates, but such administrative direction cannot deprive a First Class Magistrate of his (or her) statutory powers. The very basis of the lower court's justification to admit Exs. P-13(a) and P-13(b) therefore disappears. To borrow the language of the decision in Nazir Ahmad v. King Emperor (G), the effect of Sections 164 and 364 is clearly to prescribe the mode in which the confessions are dealt with by the Magistrates when made during an investigation and to render inadmissible any attempt to deal with them in a manner other than that prescribed by those sections.
21. The learned Sessions Judge has thought that even though the provisions of Section 164 or even of Section 364 have not been complied with, these confessional statements could be treated as extra-judicial confessions. Stripped of the authority and powers of a Magistrate, if P.W. 15 were to be treated as an ordinary citizen and the confessional statements made to her by accused 1 and accused 2 were to be treated as confessions made to such a person, the learned Judge would seem to have overlooked the provision in Section 26 of the Evidence Act that no confession made by any person while he is in the custody of a police officer shall be proved as against such person unless it be made in the immediate presence of a Magistrate.
Accused 1 and accused 2 were arrested by the police and at the time the inquest report was prepared they were in the custody of the police. Unless P.W. 15 be treated as a Magistrate the two statements we are dealing with had to be ruled out as inadmissible by reason of Section 26 alone. For purposes of Section 26 she cannot be treated as a Magistrate and for purposes of Sections 164 and 364, as an ordinary citizen. Indeed she was acting as a Magistrate under the powers vested in her under Section 176, CriminalProcedure Code and therefore to say that she should be treated as an ordinary citizen is on the face of it unacceptable.
22. In dealing with the question of the admissibility of Exts. P-13 (a) and P-13 (b) the lower court has referred to two decisions of the Madras High Court, namely, In re, Ramaswami Reddiar, AIR J953 Mad 138 (II) and In re Thothan, AIR 1956 Mad 425 (I). The former supports the view the learned Judge took and the latter the view we take here. The learned Judge thought that the latter decision was a Single Bench decision. Really it is not so and it has referred to the earlier decision and disagreed from it. Copious extracts from the judgment in Nazir Ahmad v. King Emperor (G) have been incorporated into the judgment in the later case and we do not think it necessary to quote here those passages which have now become classic.
We are in full agreement with the view the learned Judges expressed in that decision on the question, So long as Nazir Ahmed's case (G) holds the field regarding Section 164 and Section 364, no court or Magistrate can be allowed to circumvent the provisions of these sections in any manner.
23.A Magistrate holding an inquest may, no doubt, be entitled to question an accused person, but it cannot be forgotten that the purpose of an inquest proceeding is to find out the apparent cause of death. Incidentally the question of the identity of the culprit would or might come. Section 175 prescribes mat even the police cannot compel a witness examined at the inquest to give answers to questions which would have a tendency to expose him to a criminal charge or to penalty or forfeiture. When such caution is enjoined on statements to a police officer which are ordinarily not admissible in evidence, we fail to sec how a Magistrate holding an inquest could ignore this provision in Section 175 with impunity.
Even if P. W, 15 thought that accused persons should be questioned at the inquest, she should in pur opinion have acted in the manner in which the Magistrate concerned in Nonkar Mouledino v. Emperor, AIR 1937 Sind 212(J) did. The Magistrate who held the inquest proceedings in that case was not competent to record confessions under Section 164 and he did not ask the accused who was then in custody any question that would implicate him in murder, but only such questions as would (enable the accused to give out the place where the dead body was buried. P.W. 15 would however seem to have thrown all caution to the winds.
24. Exts. P. 13(a) and P. 13(b) were got written down by a Head Constable of Police, they are not recorded in the form of questions and answers, they were not read over to the accused persons nor were they got signed by them. Still the learned Sessions Judge admitted those statements in evidence though the decision the learned Judge followed, namely, In re Ramaswami (H) had pointed out that in recording statements from accused persons at the inquest proceedings the Magistrate should conform to the provision of Section 364.
When P. W. 15 happened to incorporate them into the inquest report what the court should have done was to admit in evidence only such portions of the inquest report as were not open to exception. The confessions ought not to have been proved through P. W. 15, but what the accused said or did in pointing out the place of burial, she could very well have been allowed to prove, vide Jagannath Gupta v. Rex, AIR 1950 All 9 (K). We are on the whole definitely of the view that the learned Judge went wrong in admitting Exts. P. 13(a) and P. 13(b) in evidence and using them against their makers.
25. The learned Judge passed the extremepenalty of the law against accused 1. As observedin his judgment it was a calculated and brutal murderbrought about in a cruel manner. We cannot therefore find our way to interfere with the sentence ofdeath passed against accused 1. His conviction andsentence are accordingly confirmed. The Reference will stand answered accordingly. As for accused 2 it is only the lesser sentence that has beenawarded; we agree with the view that in the circumstances of the case it would not have been proper to sentence accused 2 to death. His convictionand sentence are also confirmed. Criminal AppealNo. 138 of 1958 is in the result dismissed.