1. The two appellants have been convicted by the learned Sessions Judge of Tinnevelly on a charge of murder.
2. There were three accused in the lower Court. The first was Valli Ammal, one of the appellants. She was sentenced to death. The other appellant was the third accused in the lower Court, who was sentenced to Transportation for life. The second accused in the lower Court was acquitted.
3. The deceased person had been suffering for a long time from cancer of the uterus, of which disease she was slowly dying. On account of this disease, there was a foul smelling discharge from her uterus, which made her presence unbearable to her husband, P.W. 3, and to his second wife, P.W. 4. The result was that she was removed to a separate hut, where she was cared for by the first and second accused, a mother and daughter, and at times by the third accused, a friend.
4. On the morning of Tuesday, the 14th of August last, the deceased was found lying dead with no marks of violence that were apparent to those who then saw her. Her jewels were however missing; and when the doctor found that she had met her death by throttling, suspicion at once fell on the three accused, who had been attending on her. The third accused was questioned first by the police and she made a confessional statement. This led to the other two women being questioned, who also gave confessions. The confession of the second accused was not admissible under Section 27 of the Evidence Act, because it did not lead to the discovery of any material fact. That is the reason why the learned Judge acquitted her. The learned Judge however admitted a great part of the confessional statements of the first and third accused; and the portions admitted showed that they had participated in the murder. Upon reading through these confessional statements, we find that the learned Sessions Judge admitted more than was strictly necessary to discover the material fact that the jewels of the deceased woman were in the possession of the accused. The portion of Ex. E, the confessional statement of Valli Ammal, the first accused, which we consider to be admissible is this:
I removed the two pambadams and two mudichus worn in the ears and the gold suthuru worn in the neck by Tharuvai Achi, Chellathamma (deceased). We shared the jewels that night. I gave Meenakshi (third accused) the pair of pambadams taken from Tharuvai Achi. My daughter and myself took the remaining two gold muduchus and thali suthuru, taken from Tharuvai Achi. I have kept them in a pot in the store room of my house. I shall take out and produce the same.
The admissible portion of Ex. C the confessional statement of the third accused, is:
Valliammai (first accused) gave me the two pambadams removed from Tharuvai Achi's ears for my share. I tied them in a piece of cloth torn from my old saree and hid them in the roof of my house. 1 shall take out from the roof of my house, where I have kept and produce the pambadams of Tharuvai Achi given by Valliammai. By Tharuvai Achi I mean the deceased Chellathammal of the southern house.
When the first accused was questioned by the Committing Magistrate she admitted that she had been in possession of the jewels and that she had taken them from the person of the deceased. She said:
At about 9 a.m. on Tuesday morning, 1 went as usual to the house of the deceased. I called her ' amma, amma.' She was not conscious. But there was life. At once I removed the jewels on her body and returned. I tied all the jewels so removed in one cloth and hid them in the roof of Minakshi's house. These are the jewels--2 pambadams, 2. mudichus, and I suthuru--that I removed. These were not divided and I did not tell Meenakshi ' this is your share,' nor did I give her. It was I who took out this packet from the roof when questioned by the police. I gave this packet to the Sub-Inspector,
and later on she said:
This woman was in a dying condition. She was not conscious. I removed them, thinking that ' If I remove and get away with the jewels now, nobody will suspect me and later on they can be sold and the sale proceeds appropriated'.
On these statements and on the evidence, the learned advocate for the first accused argues that the prosecution has not proved that she murdered the deceased woman. He considers his argument strengthened by the conduct of P.W. 3, the husband of the deceased woman, and P.W. 4, the second wife of P.W. 3. P.W. 3 seeing the deceased woman lying dead without her jewels, and apparently fearing that suspicion would fall on him and his wife, gave a very foolish statement to the Village Magistrate, Ex. B. In that statement P.W. 3 said:
I returned home from the fields this morning at about 10 a.m. for taking food. On coming home, my second wife Sudalai Ammal (P.W. 4) informed me that when she went to give water to the said first wife, she (Chellathammal) was unable to speak, her hands were shivering and the jewels in her neck and ears were missing. On my going at once and seeing her, there was hard breathing. The jewels on the neck and the jewels in the ears were missing. I sat by her side. In about half an hour, she died.
In Court, P.W. 3 said that he had given this statement out of fear, that it was not true, and that when he arrived in the morning his wife was already dead. Had this question whether the deceased was alive in the morning when P.W. 3 returned from his fields depended upon the evidence of P. Ws. 3 and 4 alone, we would have had considerable doubt whether they were speaking the truth; but the matter seems to be concluded by the evidence of P.W. 1, the doctor who conducted the post-mortem examination. His evidence and his post-murtem certificate show that death was caused by asphyxia due to throttling. Many of the internal organs were congested, the hands and jaws clenched, and the neck was highly congested on both sides. There were also marks of finger nails on the throat. Since the deceased died of throttling, she could not have survived the throttling. In other words, she must have died while pressure was being applied to her neck or within a few minutes after the pressure was removed. The statement given by P.W. 3 to the Village Magistrate on the following morning could not therefore have been true.
5. Another witness, P.W. 5, was examined by the prosecution to prove that during the night, at about 10 p.m., accused 2 and 3 had been bathing, a circumstance so strange at that time of the night that it threw suspicion on these two accused. We find it difficult, however, to attach any particular significance to this fact and the learned Sessions Judge did not do so.
6. To sum up, the evidence against the first accused is that she took the jewels from the person of the deceased,--a circumstance in itself almost conclusive that she participated in the murder. Her statement in Court makes it clear that she removed the jewels from the deceased woman before she died or while she was dying. She said in the passage set out above that the deceased was not conscious but that there was still life when she removed the jewels from her body. It is suggested that some other person, possibly P.W. 4, throttled the deceased and that during the few minutes that intervened between the throttling and death, the first accused might have entered the room where the deceased woman was lying and taken her jewels. In view of the undoubted circumstance that the object of the murder was the taking of the jewels and in view of the statement of the first accused herself and her confessional statement, we consider it to be certain beyond all reasonable doubt that the first accused was responsible for or participated in the murder.
7. The evidence that the third accused participated in the murder is not conclusive, because both her statement and the statement of the first accused merely show that some of the jewels that were on the deceased person were given by the first accused to the third accused as her share. This would show that the third accused knew that some offence had been committed; but it is not clear evidence, we consider, that the third accused participated in the murder. She has therefore to be acquitted of that charge.
8. It however seems to us that the third accused was guilty under Section 411 of the Indian Penal Code of being in possession of property which she knew had been stolen from the person of the deceased. It has been argued on the authority of Daulat Ram v. King-Emperor I.L.R. (1933) Luck. 518 that when a person is charged with murder, he cannot be convicted of an offence under one of the property sections. Section 237 read with Section 236 does not however suggest that any such limitation is placed on the Court. The appellant in C. A. No. 37 of 1945 could undoubtedly have been charged under Section 411, in that her possession of the property was part of the evidence of her participation in the murder; and since she could have been charged under Section 411 she could, under Section 237, have been convicted under Section 411. In Begu v. King-Emperor (1925) 48 M.L.J. 643 ; L.R. 52 IndAp 191 : I.L.R. 6 Lah. 226 (P.C.) their Lordships of the Privy Council had to consider whether a person who was charged under Section 302 of the Indian Penal Code with murder could be convicted under Section 201 of the Indian Penal Code of causing the disappearance of evidence. Their Lordships referred to Sections 236 and 237 and held that in view of the wording of these sections they could entertain no doubt that the procedure adopted by the Court below, even though the accused was not specifically charged with that offence, Was a proper procedure and one warranted by the Criminal Procedure Code. The argument in Daulat Ram v. King-Emperor I.L.R. (1933) Luck. 518 would apply equally to Section 201 of the Indian Penal Code; and so must be deemed to enunciate bad law in the light of the Privy Council decision. We have therefore no doubt that the third accused could be convicted under Section 411 even though not charged under that section.
9. There is however a difficulty in the way of our convicting this appellant under Section 411, Indian Penal Code, even though Section 423 of the Criminal Procedure Code would in our opinion empower us to do so; and that is that the third accused was originally charged under Section 380, Indian Penal Code--to which Section 411 would be a minor charge--which charge was separated from the charge of murder. After the Sessions Judge convicted the third accused of murder he acquitted her of the charge under Section 380, the charge being withdrawn by the Public Prosecutor. As the appellant has been acquitted of the charge under Section 380, Indian Penal Code, we feel that the doctrine of autrefois acquit prevents us from now convicting the accused of that or any lesser offence. Clearly, the appellant should not have been acquitted of this charge until the time for filing an appeal had expired.
10. Because of this difficulty in convicting the appellant under Section 411, Indian Penal Code, the learned Assistant Public Prosecutor has argued that the appellant is guilty under Section 201 of the Indian Penal Code of concealing evidence of an offence either of murder or of robbery with the intention of screening either herself or the first accused. We feel very doubtful whether she can be said to be guilty under this section; because the third accused did not take the jewels to screen an offender, but to cause unlawful gain to herself. The learned Assistant Public Prosecutor has attempted to distinguish between mere possession of the jewels by this appellant and the concealing of the jewels by placing them in the roof. As, however, the third accused is very poor and probably does not possess a trunk or any other suitable receptacle for keeping jewellery, we are not at all sure that the roof, the place from which the jewels were recovered, was not the natural place in which this appellant would have kept the jewels, even if she had obtained them honestly. We are not therefore satisfied that in placing the jewels where she did, the appellant attempted to screen either herself or the first accused from any charge.
11. The only remaining question is with regard to the sentence to be imposed on the first accused. We feel that as she is a woman with a very young child, it would be better to impose the lesser sentence, so that the child will not be deprived of its natural guardian.
12. In the result, the appeal by the first accused is allowed to the extent of reducing her sentence to one of transportation for life. The appeal of the third accused is allowed in toto. Her conviction and sentence are set aside, and it is ordered that she be set at liberty.