1. The two appellants, who incidentally bear the same name, have been found guilty under Section 302 I.P.C. of the murder of Sellappa Reddiar, an elderly man in the early hours of the 17th of May 1951 on a pathway leading from Paravoi village to Ariyalur, the nearest centre with a District Munsifs court and regular lawyers.
2. The prosecution case is that the 1st accused and the deceased were proceeding together from their village of Vedakkalur to Ariyalur via Paravoi where they halted for some hours on the night of the 16th of May 1951. They left Paravoi together in the early hours of the 17th of August when about 11/2 miles from Paravoi, the 2nd accused with implements for murder and burial by prior arrangement with the 1st accused came on the scene. Sellappa Reddiar was killed on the pathway and then buried about half a furlong away. It was not till the 24th of May seven days later that his body was dug up.
3. The motive centres round the deceased's young wife Eangaru Ammal P. W. 2, now aged 18 whom he is said to have married when over 40 when she was only about nine years old. This girl came from a poor family of Paravoi. The 2nd accused is her elder brother. She grew into an attractive young woman and like the precious metal after which she was named, she was according to the prosecution case destined to lure men to murder and destruction. She joined her husband, who lived in Vedakkalur about six miles from Paravoi, about 3 or 4 years ago. It was not long before she and the 1st accused aged 30, a married man with two children, who owned a cattle shed near the deceased's house became enamoured of each other.
There is plenty of evidence including that of Bangaru Ammal herself as P. W. 2 to show that they were on terms of illicit intimacy in which Sellappa Reddiar ultimately acquiesced and he was at the time of the offence on terms of ostensible friendship with the first accused. The deceased appeared content so long as his wife stayed in his house, but about three months prior to the offence, she went to her mother's house at Paravoi where very soon she struck up illicit intimacy with one Sivalinga Padayachi (P. W. 3) a friend of her brother, the 2nd accused. Though she herself deposed that P. W. 3 was only a friend, P. W. 3 himself admitted intimacy with this young woman. So we have instead of the usual triangle, a quadrangle of a foolish old husband, a very young and attractive wife and two of her paramours.
4. The immediate motive so far as the 2nd accused is concerned relates to property. Sellappa Reddiar had settled on Bangaru Ammal a house and some land. The deed has not been filed. Incensed at her leaving him, he sold 21/2 cents of this land under Ex. P. 1 dated 7-5-51 to P. W. 9, who has also deposed to strained relations between the deceased and his young wife for about two years, and her periodic absence at Paravoi, where the 1st accused used to visit her. There is no reason to disbelieve the evidence of P. W. 9 that deceased told him Jie wanted to cancel the settlement deed and asked P. W. 9 for a letter to his advocate at Ariyalur. It was while the deceased was on his way to Ariyalur accompanied by the 1st accused to instruct an advocate that he was, according to the prosecution case, killed.
Paravoi is six miles from Vedakkalur and about 11 miles from Ariyalur. The route from Paravoi is by a pathway between 4 and 5 miles long which joins the main Perambalur-Ariyalur road. There is, in the first place, ample evidence to show that deceased locked up his house at Vadakkalur on Thursday the 16th of May, handed over the key to a Muslim woman, P. W. 8 and left the village along with the 1st accused, his wife and two children in a bullock cart. P. W. 8 understood that they were both going to Ariyalur. The deceased did not return again and after the corpse was found, she handed over the key to the village Magistrate. P. W. 1 who is married to the deceased's brother's daughter, is the only male relation of this lonely old roan examined as a witness. There is no reason to disbelieve his evidence and also that of another Reddiar, P. W. 18, that the deceased left Vadakkalur in the company of the 1st accused.
5. Any doubt about this is set completely at rest by two Paravoi witnesses, P. W. 4 and her son P. W. 5. (His Lordship referred to the evidence of P. Ws. 4 and 5 and proceeded :)
6. It was not till the 22nd of August that some persons hunting hare including P. W. 11 saw a human leg protruding from the ground with crows and kites all round it. P. W. 12 took, information to the village Magistrate of Varagannur, P. W. 13, who sent reports Exs. P. 10 and P. 11 to the authorities. When he went to the scene, he saw no sign of any protruding leg bone and at the place pointed out by P. W. 12 there was earth thrown over and stones placed. This evidence suggests that an interested culprit in the vicinity had tried to repair the ravages of birds of prey. Ex. P. 10 reached the Perambalur police station 15 miles away at 4 p.m. on 23-5-51. Another report Ex. P. 13 by the village Magistrate of Paravoi P. W. 14, who inspected the scene at 9 a.m. on a Vetti's report, was also despatched at 11 a.m. and reached the Valikondapuram police station 10 miles from the scene of offence at 5-15 p.m. A constable there P. W- 16 registered a death report and went that night to the scene of burial and claims to have guarded the spot with village menials.
Next morning, in response to reports and requisitions, there was a convegence of various functionaries to the suspected place of burial including the Circle Inspector of Perambalur who has not been examined as a witness, the Sub Magistrate, Perambalur (P. W. 10) who received the requisition Ex. P. 2 at 5-45 p.m. on 23-5-51 and also the Assistant Surgeon, P. W. 15. P. W. 10 says he arrived at the spot at 9-45 a.m. and P. W. 15 at 9-30 a.m. The body had been superficially buried with the arms folded across the chest and the legs bent under, the whole body wrapped up in a white lungi, M. O. 2. The whole of the face was eaten away. On the right ear, which was present, was a ear-ring set with a red stone, M. O. I. In the pit was found one sandal (M. O. 3). Post-mortem examination by the doctor held on the spot disclosed two lacerated wounds each 11/2" long and 2" deep in the region of the right thigh, fracture of no less than 6 ribs and fracture of the lower and upper jaws.
There was also what is described as a transverse cut over the middle of the thyroid cartilage which was hanging down. In the stomach was found one ounce of semi solid rice dhall and chillies bearing out the testimony of P. W. 4. There can be no doubt that the deceased died in consequence of a violent and murderous attack by both sharp and blunt weapons. The corpse was identified by P. W. 1 and also by Bangaru Animal P. W. 2 herself as that of the deceased Sellappa Reddiar. Although the body was not identifiable and it has been urged that M. Os. 1, 2 and 3 do not conclusively establish its identity we are quite satisfied on the cumulative evidence in the case that this was the body of Sellappa Reddiar. It may even be impossible sometimes for relatives to identify a corpse exhumed after several days. But identity can be established by other evidence which is forthcoming in the present case in abundant measure.
7. The inquest was held by the Sub Magistrate Sri R. W. Michael, P. W. 10 uptill 1 p.m. near the corpse. After that he moved with the Panchayatdars to Paravoi village and continued the examination of the witnesses in the chavadi from 3 p.m. until he closed the inquest at midnight. He recorded from the 2nd accused, who was produced before him a confession Ex. P. 6 inter alia to the effect that he had buried two weeding instruments and a sandal in his field. The Sub-Inspector of Valikondapuram who only reached Paravoi at 11 a.m. the morning after the other official accompanied the 2nd accused, who produced from his field buried there a left foot sandal M. O. 4, a weeding instrument M. O. 5, a stick M. O. 6 and a spade handle M. O. 7. M. O. 7, has a blood stain on it; proved on chemical analysis to be human blood.
It would appear that after these discoveries the Sub Magistrate examined the 1st accused, who made a long confessional statement Ex. P.
5. The learned Sessions Judge held that Exs. P. 5 and P. 6 were admissible in evidence. The Sub Magistrate, Sri R. W. Michael was not empowered under Section 164 Crl. P. C. to record confessions, though he was empowered to hold inquests. The admissibility in evidence of Exs. P. 5 and P, 6 has been elaborately argued before us by Sri Raghavan who has appeared amicus curiae for the two appellants and by the learned Public Prosecutor, Before dealing with this legal point, the other evidence in the case may be briefly referred to (His Lordship referred to the evidence in the case and proceeded :)
8-12. Quito apart from the confessions Exs. P. 5 and P. 6 there is, therefore, a good deal of evidence both against accused 1 and 2 to prove their participation in this murder. Accused I's total denial of all the evidence against him and his taking refuge in the unproved assertion that he never left Vadakkalur at all in the company of the deceased reinforces the prosecution case, once the evidence of accused 1's own relations P. Ws. 4 and 5 is accepted. So far as motive is concerned, that animating the 2nd accused is clear cut, solicitude for his sister and the preservation of the property settled on her. The motive so far as the 1st accused is concerned appears to be pure infatuation for Bangaru Animal, as he had nothing very much to gain himself by killing this old man, who did not, according to the evidence, object to his amorous association with P. W. 2. The motive against the 1st accused is rendered weaker by the existence of P. W. 3 as another paramour of P. W. 2. But it may well be that the 1st accused did not know of this relationship, which P. W. 2 also denied, in the witness box. So far as motive is concerned, we are satisfied that the prosecution evidence discloses adequate motive so far as both the accused are concerned.
13. We now come to the admissibility of the confessions Exs. P. 5 and P. 6. These are two long statements recorded by a Magistrate empowered to hold inquests under Section 176(1) Crl. P. C. who in any case mentioned in Section 174(a), (b) or (c) .
"may hold an enquiry into the cause of death either instead of or in addition to the investigation held by the police officer and if he does so, he shall have all the powers in conducting it which he would have in holding an enquiry into an offence."
The Magistrate holding such an enquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case. The Magistrate examined other witnesses at the inquest on oath. When he came to the examination of accused 1 and 2, it would appear that on becoming aware that they were making confessions, he administered no oath to them in correct conformity with Section 342(4) Crl. P. C. after he completed the statements they were read out to the two accused, who signed them in the usual manner. The statements and confessions were recorded on police case diary paper.
14. An extreme but in our opinion quite untenable position has been taken that no Magistrate can ever record a confession from an accused person except in strict conformity with Section 164 Crl. P. C. This section empowers all Magistrates of the First Class and any Magistrate of the second class, specifically empowered under it to record statements and confessions made in the course of an investigation in a particular manner. This however does not mean that a Magistrate of the second class not empowered under Section 164 Crl. P. C. and a Magistrate of the third class can under no circumstances record or give oral evidence of a confession made to them.
15. The extreme position taken is sought to be founded on what appears to us to be a clear misinterpretation of the Privy Council decision -- ' Nazir Ahmad v. King, Emperor', 17 Lah. 629' (PC). In that case the facts restricted the Magistrate clearly to the confines of Section 164 Crl. P. C. The investigating police took with them a First Class Magistrate and one, therefore, empowered under Section 164 Crl. P. C. to investigate a case of dacoity. The accused in handcuffs accompanied the party in another car. After sending the police to some distance, the Magistrate deposed that each of the accused pointed places out. He made rough notes of a full confession the convicted appellant made, destroyed them after dictating a memorandum to his typist and gave evidence in court on the basis of the memorandum which apparently also was filed. This was not even read out to the accused and not even signed by him. This was very obviously a case to which Section 164 Crl. P. C. had clear application, the provisions of which were rather blatantly disregarded by the Magistrate. It was in this, background of fact that their Lordships of the Privy Council made the following dictum reproduced in the headnote reporting the decision,
"it is a well recognised rule of construction that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all--other methods of performance are necessarily forbidden."
The effect of this decision was that a Magistrate, who was empowered to record a confession under Section 164 Crl. P. C. and grossly violated the requirements of that section, could not ignore such violation and give oral evidence of a confession he heard from an accused person in police custody in the course of an investigation. This decision was considered by Burn and Stodart JJ. in -- 'Nainamuthu v. Emperor', 1939 Mad WN Cr 172. In that case, the accused after killing his concubine, appeared before a Magistrate and made a confession that he had killed her. The Magistrate took down the. confession without observing any of the formalities required by Section 164 Crl. P. C. and it was held to be admissible in evidence as a first information of the crime. It was also a statement not recorded "in the course of an investigation" even to attract the operation of Section 164 Crl. P. C.
16. The point for determination before us is really a simple one. In this case, the Magistrate who recorded these confessions could not have proceeded under Section 164 Crl. P. C. as he was not empowered to record confessions in cases to which that section applied. Section 164 is, therefore, for determination of the admissibility of these two confessions, quite irrelevant. The simple point we have to determine is whether this Magistrate who was holding an inquest empowered as he was to hold one under Section 176(2) Crl. P. C. recorded these confessions within the scope of these special powers. This inquest was held by him as "an inquiry into the cause of death" in addition to the investigation held by the Police officers, who were while the inquest was in progress, making their own investigation.
Under Section 173(1) Crl. P. C., the Magistrate shall have all the powers in conducting it which he would have in holding an enquiry into an offence. These powers in our opinion include the power of taking down any statement, whether it be a confession or not from any person who knows anything about the cause of death. Under this section, the Magistrate shall, record the evidence in any of the manners prescribed by the Code. The only defect in the procedure adopted by this Magistrate holding the inquest appears to be that as soon as he was aware that these two accused were making confessions, ho should have recorded their statements in the form of questions and answers as required by Section 364 Crl. P. C. We are unable to see any other defect in the procedure adopted by this Magistrate within his powers of holding inquest. Nor can we see how Section 164, Cr. P. C. which specifically empowers certain Magistrates to record statements or confessions under other circumstances can have the effect of destroying the powers of the Magistrate holding an inquest under Section 176 Crl. P. C. In this case the Magistrate could not have acted at all under Section 164 Crl. P. C. nor was it necessary for him even to look into the provisions of that section to guide him.
Mr. Raghavan has urged that as soon as the Magistrate realised that a confession was being made to him at the inquest, which he was not empowered to record, or even listen to, he should have immediately sent these accused to 3 Magistrate empowered to record confessions. Any such interpretation of Section 176(1) Crl. P. C. in conjunction with Section 164 Crl. P. C, would reduce the position of a Magistrate holding an inquest to one of helpless absurdity. In the case of a police officer holding an inquest on a confession being made before him, he can and does record it nor is he hound as a Magistrate is by the procedure prescribed by Section 176(1) Crl. P. C. but a confession made at an inquest held by a Police Officer is unfortunately clearly inadmissible in evidence under Sections 25 and 26 of the Evidence Act. Where the Magistrate holds the inquest, the position is, of course, entirely different.
17. The only relevant decision amongst many which have been placed before us is a Full Bench decision of the Bombay High Court, -- 'Government of Bombay v. Dashrath Ramnivas', (AIR 1945 Bom 265 PB). That was a case in which a Coroner appointed under Act IV of 1871, applicable only to Calcutta and Bombay, recorded a confession under Section 19 of the Coroners Act without observing the formalities laid down in Section 164 Crl. P. C. and some High Court circulars. In an appeal against an order of acquittal at the High Court criminal sessions a Full Bench set it aside and ordered a retrial holding inter alia that the remark of the trial Judge that the Coroner ought to have complied with the formalities of Section 164 Crl. P. C., when he was not in law bound to do so, would amount to a misdirection because it was not improbable that the jury was led to think that the confession was not properly recorded and therefore not voluntary.
It is significant in this connection that under Section 20 of the Coroners Act for the purpose of Section 26 of the Evidence Act, a Coroner shall be deemed to be a Magistrate. According to Section 26, no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The Coroner was therefore deemed to be a Magistrate for the explicit purpose of being able to record a confession made to him at an inquest, which could be proved at a subsequent trial. We can see no difference in the position of a Coroner under the Coroner's Act and a Magistrate holding an inquest under Section 176(1) Crl. P. C. in the matter of recording confessions.
18. There is also a provision of law which is apt to be completely forgotten in excessive concentration on Section 164 Crl. P. G. and that is Section 163(2) Crl. P. C. which is to the following effect:
"No police officer or other person shall prevent by any caution or otherwise any person from making in the course of any investigation under this chapter any statement which he may be disposed to make of his own free will."
The extreme untenable position based on Section 164 Crl. P. C. would seek to make Magistrates of all persons (classes?) guilty of a violation of Section 163 (2) Crl. P. C. by stopping such persons making statements of their own free will by unnecessary cautions, nowhere contemplated by law. If for instance the Magistrate holding the inquest had also been a First Class Magistrate or one specifically empowered to record confessions under Section 164 Crl. P. C. and had in fact acted under this section, and adopt ed the procedure usually followed in that cases of giving the accused time to reflect after removing him from all police influence without taking any statement immediately from him, he would have acted in direct violation of the positive requirements of Section 176(2) Crl. P. C. and also from a minor standpoint in violation of Section 163(2). The admissibility of a confession rests fundamentally on its spontaneous and voluntary nature, and is irrelevant under Section 24 of the Evidence Act, if it appears to have been caused by any inducement, threat or promise having reference to the charge against an accused person proceeding from a person in authority, and sufficient in the opinion of the court to give the accused person reasonable grounds for thinking that by making it, he would gain some advantage or avoid some evil.
The type of case to which Section 164 applies is, that in which an accused person is produced not at an inquest but in the course of a police investigation, after he has made a confession to the police or has declared his desire to confess while in police custody before a Magistrate. Sarkar in his law of Evidence, 8th edn., page 241 has an interesting commentary on the effect of the Privy Council decision -- 'Nazir Ahmad v. King Emperor', 17 Lah. 629 (PC), and on the extent to which previous decisions have been affected by that decision. We find ourselves in complete agreement with the following observation of his:
"It may however be observed that Section 164, Criminal P. C. comes into play when during an investigation an accused is formally ' brought before a magistrate for the purpose of recording his confession."
This being in accordance with our opinion, we would like to give it judicial endorsement. We are also in agreement with his further opinion to the following effect:
"Admission of guilt or of an incriminating fact may be made by an accused to a Magistrate in the course of a statement to him on occasions other than when he is so brought for recording his confession and such statements appear to stand at least on the same footing as an extra judicial confession to a third person or an admission under Section 21."
19. The extreme position, which seeks to push the Privy Council decision -- 'Nazir Ahmad v. King Emperor', 17 Lah 629 (PC), to logical conclusion on the basis of the headnote to which we have referred and one which in our respectful opinion their Lordships of the Privy Council never contemplated would in fact reduce a Magistrate to a far lower level than an ordinary citizen in the matter of deposing to confessions made to him. A confession may be made to a village magistrate and be admissible but made to a Third Class Magistrate, it should be unconditionally ruled out nor should he make any record of it.
If made to a First Class Magistrate or one empowered under Section 164, Criminal P. C. whether in his personal or official capacity, he cannot depose to it unless he has recorded the confession in strict conformity with Section 164. Criminal P. C. and produced the document required by law to be reduced to a particular form under Section 91 of the Indian Evidence Act in strict conformity with Section 164, Criminal P. C. We have taken the opportunity to dispel with the able assistance of the learned Public Prosecutor to the best of our ability erroneous notions of the interpretation of the decision --'Nazir Ahmad v. King Emperor', 17 Lah 629 (PC), in a manner which we think their Lordships of the Privy Council never contemplated the observations relied on there having been made in a totally different and particular background to which Section 164, Criminal P. C. was exclusively applicable.
20. The legal point for determination, a really simple one, can be answered out of the Acts themselves, which create no difficulty. No decision has been placed before us which lays down that a confession made before a Magistrate holding an inquest but not empowered under Section 164, Criminal P. C. has been held to be inadmissible. We can only as we stated 'supra', find one technical defect in the procedure of the Sub-Magistrate, i.e., in his failure to record the confessions of accused 1 and 2 in question and answer form in compliance with Section 364, Criminal P. C. We consider this however in the circumstances of this case a technical defect which is curable under Section 533 (1), Criminal P. C. We do not think that the omission of the Magistrate to put and record preliminary questions to these accused asking them whether they knew anything about the cause of death has injured their defence on the merits.
We have no reason to doubt that the result of such questions being recorded would have been the same and that the accused would have made to the Magistrate before the 'Panchayatdars' the same confessions they did. There was absolutely no time for these two long detailed confessions, Exs. P. 5 and P. 6 independently made before the Magistrate and the 'Panchayatdars' to have been induced in any manner contemplated by Section 24 of the Evidence Act. They are only explicable on the basis of their being substantially true and voluntarily made by these two accused in sudden consternation at the discovery of the corpse and their interrogation by the police. The two confessions have been set out 'in extenso' in the trial court judgment. Except that the first accused sought to fasten culpability for the actual attack on the deceased on the second accused and the second accused on the first accused the long confessions are in conformity with the salient facts and evidence in the case.
We have no hesitation in finding on the abundant evidence in this case that accused 1 and 2 jointly murdered the deceased and disposed of his body. The learned Sessions Judge has seen fit to pass on the two accused the lesser punishment for a rather curious reason which cannot have the seal of our approval viz., that as there were no eye-witnesses to the actual murder, it was not certain from the evidence as to who dealt the fatal blows and played the leading role. With the observation that the appellants have been fortunate in being awarded the lesser sentence, we confirm the convictions and sentences and dismiss the appeals.
21. We would like to place on record our appreciation of the arguments of Mr. R. V. Raghavan who has appeared for the appellants 'amicus curiae'. Unfortunately existing rules do not permit the payment to him of any remuneration.
Chandra Reddi, J.
22. I am in general agreement with the conclusions of my learned brother. But I like to add a few words on the admissibility of the two confessions, Exs. P. 5 and P. 6 made by the two appellants, having, regard to the importance of the question. In the judgment of my learned brother, the contents of these two confessions and the circumstances under which they came to be made are set out. The two documents are very important as the convictions of the appellants to a large extent depend on them. If the confessions are receivable in evidence and if they have been found to be voluntarily made, the guilt of the appellants can be said to have been, established beyond reasonable doubt.
23. Counsel for the appellants contends that these confessions are not admissible in evidence as they were recorded by a Magistrate who was not empowered under Section 164, Criminal P. C. to record statements and confessions in the course of investigation. Although this contention is not altogether without substance I am afraid I cannot give effect to it. The Magistrate who recorded Exs. P. 5 and P. 6 did not purport to act under Section 164, Criminal P. C. as he was not one of those who was specially empowered to do so under that section and therefore they are outside the scope of Section 164, Criminal P. C. These statements were recorded by the Magistrate at the inquest which he was holding under Section 176, Criminal P. C. My learned brother has adverted to some of the cases bearing on the subject.
However I will refer to one decision of the Privy Council, viz., -- 'Ghulam Hussain v. The King', (51 Cri LJ 1552 PC), which in my opinion gives support to our view. There it was ruled that a statement made to a Magistrate which did not amount to a confession being a self-exculpatory one could be used against the maker of it under Sections 18 to 21 of the Evidence Act. This seems to be an authority for the position that statements of accused falling outside the purview of Section 164, Criminal P. C. are admissible as admissions within Sections 18 to 21 of the Evidence Act. On the principle contained therein I must hold that a statement made to a Magistrate holding an inquest under Section 176, Criminal P. C. is admissible under Section 21 of the Evidence Act. It follows that Exs. P. 5 and P. 6 are admissible in evidence and can be used against the accused as they fall within the scope of Section 21 of the Evidence Act. In the result I agree that the appeal should be dismissed.