1. The two accused who are cousins have been convicted of the murder of Thayarammal and sentenced to death. They have filed separate appeals both numbered as Criminal Appeal No. 17 of 1939.
2. His Lordship after a narration of facts and evidence continued.
3. On the 13th July, Srinivasalu Naicken made a long statement to the Sub-Magistrate admitting the crime and stating that he and first and second accused had murdered the woman by throttling her at the threshing floor where she slept on the night of the 27th June to guard her paddy. He said that they put the body into a gunny bag which was there and carried it to a distant field and buried it at the place which he had subsequently shown to the police. He said that before burying it they had removed the jewels and that he had been given a gold coin which he calls a quarter sovereign and one of the trinkets from the tali which he sold at a shop in Arkonam. P.W. 17 a shroff of Arkonam deposed that on the 30th June Srinivasalu Naicken sold him a quarter sovereign. He said he had melted this before the police questioned him about it. There is an entry in his accounts Ex. K-l, that gold weighing 9 pagodas was sold to him by Pallur Srinivasalu Naicken on 30th June. On the 13th July also Muniammal, P.W. 28, the second wife of the first accused made a statement on oath to the Sub-Magistrate about the jewels which she had produced before the police. That statement is Ex. T.
4. On the 12th August Srinivasalu Naicken reiterated his confession in a long statement to the District Magistrate and a pardon was tendered to him on that day which he accepted. He has been examined as P.W. 6 in the committing Magistrate's Court and as P.W. 1 at the Sessions.
5. The proof of the case against these two accused consisted principally in the evidence of this approver Srinivasalu Naicken. He was corroborated in a material particular by the fact that the murdered woman's jewels were found in the possession of the first accused's wife, Muniammal. Muniammal examined as P.W. 28 did not deny that she produced the jewels to the police on the 8th July the day the body was exhumed but she said that a head constable gave them to her first. Then she was confronted with Ex. T the sworn statement she had made to the Magistrate under Section 164, Criminal Procedure Code, on the 13th July. She there deposed that at daybreak on the morning of 28th June the first and second accused had roused her from sleep and the second accused had given her a little cloth bundle. Her husband told her it contained jewels and that she was to keep it safe until he asked for it. At the trial Muniammal did not deny making this statement but she said that she made it because she was told to do so by P.W. 14 and a head constable. It was filed in evidence to contradict her under Section 145 of the Indian Evidence Act.
6. P.W. 14 is a man called Vajravelu Asari. He is not a reputable witness having been convicted once of receiving-stolen property. He deposed that on the Amavasai night at about 8 P.M. when he was in the street near the house of the approver Srinivasalu Naicken P.W.I, accused 1 and 2 came in company and called out to P.W. 1 and P.W. 1 replied that he was still at his meal. P.W. 15 deposed that on that same night he saw the two accused pass along the street together and he commented on this to a neighbour, P.W. 16, as he thought it strange that these two who were enemies should be together. It will be remembered that it was on information given by P.W. 14 and P.W. 15 to the head constable that the approver was first suspected and detained by him for examination on the night of the 7th July.
7. All this evidence was placed before the committing Magistrate and when the accused were examined under Section 209, Criminal Procedure Code, for the purpose of enabling them to explain the evidence against them there took place a dramatic and somewhat unusual incident. The first accused had made a fairly long statement which had been read out to him and which he had attested by his thumb mark. He admitted that he had gone to the threshing floor that night but said that when he reached it, Thayarammal who had been there all day had gone. He said he had slept there all night and returned home at 8 in the morning. He admitted that the jewels produced in the case belonged to Thayarammal and were on her person when she was at the threshing floor but said that he did not know how they came to be found out. He denied all complicity in the crime. Then the second accused made his statement giving at length the history of his quarrels with Thayarammal and ending up with the assertion that the approver had implicated him out of enmity, the enmity arising out of the fact that on a certain occasion in May, 1937, when the first accused was away from home he had found him, the approver, in bed with first accused's wife and quarrelled with him on that account. At the conclusion of this statement the first accused turned to the second accused in the dock and said: 'It was you who put your foot on her neck and pressed it' and turning to the Magistrate against him saying that the second accused's accusation against his wife was made out of spite because he had had to warn the second accused, to keep away from his house in his absence and when his wife's sister was absent. And the first accused still speaking to the Magistrate requested him to put it on record that he the first accused and the second accused and Srinivasalu Naicken had murdered Thayarammal and taken her jewels and buried her. The Magistrate warned the first accused that this very statement would be sufficient to hang him and then asked the accused to repeat what he had said and the accused said:
Srinivasalu Naicken, Singara Naicken (second accused) and myself, the three of us together committed the murder. It was Singara Naicken that placed his foot on her neck and pressed it. It was Srinivasalu Naicken who tied the fibre cord round the neck. We put her into the gunny bag, tied it up, took it, dug a pit, and buried it. It was Srinivasalu Naicken and Singara Naicken who removed the jewels. I dug the pit. After burying her we took the jewels and came home. At the bund of the tank Singara Naicken gave Srinivasalu a quarter sovereign and an amulet. After that I went away to the threshing floor. I do not know to whom Singara Naicken took the jewels and gave them.
8. Examined at the Sessions when this statement was filed under Section 287, Criminal Procedure Code, the first accused merely said that he never made it.
9. The evidence of the approver and the statement just referred to made to the Magistrate at the preliminary enquiry by the first accused is that the deceased was killed by throttling. First, as she lay asleep, one of the murderers placed his foot on her throat and pressed on it. Then when she struggled, another of the murderers throttled her with his hands while his accomplices held her legs and arms. The approver says that she died when he was tying the cord round her neck and therefore he did not tie it tight. This is borne out by the medical evidence. The sub-assistant surgeon found no mark of the cord on the neck. It was tied to the neck when the body was found but that was probably due to the fact that the neck had swollen through decomposition. The body was too far advanced in decomposition to afford any evidence of the cause of death. But the fact that the deceased was apparently well and active when she was last seen alive and that her body was found bundled up in a sack and buried in the ground strongly supports the inference that she was murdered.
10. It is argued here as it was argued in the lower court that If the deceased was killed in the manner stated by the approver and by first accused there would have been injury to the neck which would have been visible at the post-mortem; for instance fracture of the hyoid bone. But if the object which is employed to compress the windpipe is broad and pliable there need be no injury to the bony structures of the neck. Pressure by the sole of the foot or by the palm of the hand placed across the neck of an unresisting victim would cause death by asphyxia without necessarily causing injury to the bones or tissues of the neck. The absence of such injury does not therefore indicate that the approver is not telling the truth, when he says that the accused was throttled.
11. The principal argument addressed to us is that the learned Sessions Judge was wrong in holding that the evidence of the approver was corroborated in material particulars not only bearing on the facts of the crime but upon the accused's implication in it. See the Privy Council decision in Mahadeo v. The King (1936) M.W.N. 889 : 1936 P.C. 24 . But here we find that as regards the facts of the crime the approver is corroborated by the circumstances in which the body was found and by the statement of the first accused in the committing Magistrate's Court. As for the first accused's part in the crime there is in addition to the said statement the fact that the deceased's jewels were in the possession of his second wife Muniammal. Against the second accused there is the confession made by the first accused in open Court at the time of the preliminary enquiry. We think that not only may that confession be taken into consideration against the second accused but also that having regard to the circumstances in which it was made it has considerable probative value. The first accused had just made a statement denying all knowledge of the crime. But when the second accused in his turn made his statement and incidentally made the allegation of adultery against first accused's wife, the first accused, voluntarily and in spite of the Magistrate's warning withdrew his former statement, confessed the crime and implicated the second accused. He deliberately made himself liable to the extreme penalty of the law in order that the second accused should suffer too.
12. Learned Counsel contends on behalf of the second appellant that this incriminating statement made by the first accused at the preliminary enquiry cannot be taken into account as against the second accused. His argument is that a confession made by one of several accused who are being tried jointly is governed by Section 30 of the Indian Evidence Act and that Section 30 refers only to confessions made before the enquiry begins and proved at the enquiry. Section 30 is:
When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
13. We do not think there is any force in this argument. It is true that the confession was made for the first time at the preliminary enquiry. But it was made in the dock in the presence of the second accused and there was no question of its having to be proved at that stage. Then at the Sessions trial two months later it was proved under Section 287, Criminal Procedure Code, by the Magistrate's verbatim record of it. The second accused was in no way prejudiced. He had as much opportunity of explaining or rebutting it as if it had been made before the preliminary enquiry and proved at that enquiry.
14. We think that the case is established against the second accused equally as against the first accused. The principal fact proved apart from the evidence of the approver is the recovery of the jewels from the first accused's second wife. She stated both at the preliminary enquiry and at the trial that they were foisted on her by the police. But that is not only inherently improbable for where could the police have got them but also is contradicted by the statement made by her to the Magistrate on the 8th July under Section 164, Criminal Procedure Code, in which she gave an entirely different version of how she came into possession of them. Then against the second accused we have the first accused's dock confession which substantially corroborates the evidence of the approver.
15. And lastly against both the accused there is the evidence of P.W. 14 that these accused came to the approver's house about 8 P.M. on the night of the 27th June, and of P.W. 15 that he saw the two accused going in company along the street about the same time. This evidence is of some importance. The approver says that he and the accused met together at his house at Pallur before proceeding to the scene of crime. The evidence of these two witnesses corroborates him in that particular.
16. We agree with the learned Sessions Judge that the approver's evidence is credible and acceptable and that it is corroborated in material particulars bearing on the accused's complicity in the crime. These two accused had a powerful motive to get rid of the deceased. In our opinion there can be no doubt that they murdered her on the night of the 27th June last. We dismiss their appeals. As for the sentence imposed by the learned Sessions Judge it was eminently justified. The sentence of death on the accused is confirmed.