1. The three appellants have been convicted of the murder of one Thillaikannu Pillai. The 1st appellant is the murdered man's son. The 2nd and 3rd appellants are respectively the 1st appellant's brother-in-law and father-in-law. Another brother-in-law was charged with them but acquitted. There was, we consider, no ground for differentiating between him and his brother. If the Sessions Judge accepted, as he did, the confessions of the 1st and 3rd appellants and the evidence of P.Ws. 10 and 11, he should have convicted the 3rd accused as well. The fact that his name did not appear in Ex. E was, comparatively speaking, of very little significance.
2. That there was ample motive for the murder is clear. In the first place, Thillaikannu was keeping a woman called Nagu and spending money on her, to which his son and no doubt his wife's family objected. In the next, Thillaikannu's relations with his son's wife (P.W. 2) had given rise to constant quarrels. He had been intimate with her before she was married and the intimacy continued after her marriage. About ten days before the murder, the 1st appellant had caught her going to his father's room at night and thrashed her, threatening to kill himself or her, unless his father was murdered. Lastly, the father had been talking of settling some of his property on his daughter (P.W. 1) on account of the quarrels between himself and his son. All this has been conclusively established.
3. On the night of 11th January last,' Thillaikannu went out to his field with the 1st appellant, after which he disappeared. Eighteen days later his body was dug up, in consequence of information given by the 1st appellant to P.W. 1. She heard of her father's disappearance and came back to her native village to make enquiries. When she came, the 1st appellant began by telling her that their father had gone to Cuddalore. The next day he confessed to her that he and his father-in-law and brothers-in-law had murdered Thillaikannu and buried the body between two rocks in his field, after which he attempted to commit suicide, but was saved by P.W. 8. The Village Munsif was informed and the 1st appellant took him and pointed out the place where his father's body had been buried and it was dug up.
4. The main evidence in the case consists of confessions by 1st and 3rd appellants. There can be no doubt that the 1st appellant confessed to his sister that he and the other three had murdered his father, though she made a desperate attempt to save him by alleging that he did not, in his confession, implicate himself. In the end when confronted with Ex. F--a statement made by her to the Village Munsif--she had to admit that he confessed to her that he also had helped in the murder. Strong objection has been taken by the defence to the Sessions Judge's procedure in having recalled her, after her deposition had been concluded, in order to put Ex.F to her. There is no force in the objection. Section 540, Criminal Procedure Code, gives a Judge the fullest discretion to recall a witness at any stage of a trial and makes it imperative for him to do so, if he considers further evidence essential to the just decision of the case. Here an essential document had been overlooked by the prosecution and it was the Judge's duty to have it admitted in evidence. To argue that he should not have carried out that duty, as the result was fatal to the accused, is to suggest that the words 'just decision' mean a decision in favour of the defence.
5. We are satisfied that P.W. I has given a perfectly correct account of what her brother confessed to her. The circumstances all indicate that he must have taken part in the murder himself. He had the strongest of motives for doing so. He was certainly present. He knew where the body had been buried. He first of all lied to his sister about their father's whereabouts and, after confessing, tried to commit suicide. Before the Committing Magistrate, no doubt, he, while admitting his presence, attributed the murder to the other three accused. In the Sessions Court, he resiled even from that admission. The fact that he has retracted altogether makes little or no difference, as apart from his retracted confession there is ample circumstantial evidence from which his guilt can be inferred.
6. The 3rd appellant made a complete confession to the Committing Magistrate, implicating himself, the 1st appellant and his sons in the murder. This he withdrew in the Sessions Court, alleging that he had been tortured by the Police into making it. That was, of course, absurd. He had not been in the custody of the Police. He had never complained of torture before and, when he made his confession, he was standing in the presence of a Magistrate. What happened seems obvious. He must have been angered at the 1st appellant attempting to save his neck at the expense of his fellow-culprits and was unable to contain himself and blurted out the truth. We are told that the confession, having been retracted, cannot be acted upon without material corroboration. There is, of course, no such absolute rule. If the reasons given by ah accused person for having made a confession, which he subsequently withdraws, are, on the face of them, false, it is not apparent why that confession should not be acted on as it stands and without any further corroboration. Not that corroboration is lacking in this instance. It is not likely that the murder was the work of one hand. Thillaikannu's treatment of his daughter-in-law and her husband, his wasting of his substance on P.W. 5, his threat to settle his property on P.W. 1, must all have roused fierce resentment in the daughter-in-law's family. It is conclusively established that the appellant was away from his house on the night of the murder and, before the Committing Magistrate, his wife admitted that he had told her that he had taken part in the murder. In the Sessions Court, she asserted that this admission was due to torture by the Police, of which she had never complained before. We are of opinion that the Sessions Judge was entirely justified--in view of her obvious desire to save her husband and sons--in admitting her deposition before the Committing Magistrate as evidence at the trial under Section 288, Criminal Procedure Code.
7. In the result, we must find that the 1st and 3rd appellants have been rightly convicted. It is urged that P.Ws. 1 and 8 should not be believed, as they would benefit by the conviction of the 1st appellant. The answer is that P.W. 8 saved him from committing suicide and that both he and P.W. I have made every effort to save him from conviction.
8. There remains the case against the 2nd appellant. It rests mainly on the confessions of the other two appellants, which are not evidence against him, but may be taken into consideration together with any other evidence there may be. The Sessions Judge finds that evidence in the story told by P.Ws. 10 and 11, which we regard with some degree of suspicion. Had it been forthcoming at the inquest, we might have accepted it, but, though the witnesses were then present, they gave no infor-mation. It is true that the appellant had as much motive to commit the murder as his father had. It is also probable that he was in his father's company that night. On the whole, however, we have come to the conclusion that he should not have been convicted. He is acquitted and will be released from custody.
9. The sentence passed on the 3rd appellant is confirmed. The 1st appellant has been called on to show cause why his sentence should not be enhanced. We do not entirely accept the reasons given by the Sessions Judge for not hanging him, but his father had treated him very badly and it is possible that his father-in-law may have been the leader in the crime. We propose, therefore, not to interfere, but to confirm his sentence.