1. (Cr. Ap. No. 363 of 1951): The first appellant (A. 1) is a widow aged over 45. She and her two younger brothers (A. 2 and A. 3) have been found guilty under Section 302 I. P. C. of the murder of one Srinivasa Asari, who was hacked with an aruval in several places in their village street at about 2 p.m. on the 6th of November 1950. A sister of the appellants, one Chinnammal (A. 4) was also charged with this murder but acquitted.
2. The case is rather remarkable as this widow (A. l), at her sessions trial, took full responsibility for cutting Srinivasa Asari with a bill-hook (M. O. 1). She appeared with this blood stained weapon at the Dharmapuri Police station 20 miles away, at 10 a.m. the following morning, where she made a statement and surrendered herself. At Dharmapuri before she appeared at the police station, she went at 8 a.m. to the house of a Brahmin lady (P. W. 4). whom there is no reason to disbelieve. She knew A. 1 very well as she used to do cooly work in her house and other houses for several years when she was in Elumichenpatti, her native village. According to P. W. 4, A. 1 seemed very upset and told her that she had killed the man, who had murdered the husband and son of her younger sister A. 4. The Sub-Inspector enquired P. W. 4 the following day.
3. In the meantime, Srinivasa Asari's wife (P. W. 1) made a complaint Ex. P. 1 to the village Magistrate (P. W. 3) who lived only 70 yards from the scene of murder. That was to the effect that at about 2 p.m. her husband went from their house into the street and that, immediately after he left, she heard cries and on rushing up, she found A. l holding her husband down by his head, while A. 2 and A. 3 cut him several times with a bill-hook. When she raised an alarm, they threatened to cut her also. P. W. 3 was sitting on his pial when, according to him, P. W. 1 came there weeping and told him about the offence. There is no reference in Ex. P. 1 to A. -1.
4. The prosecution case against A. 1 to A. 4 rested entirely on the evidence of P. W. 1 and another eye-witness (P. W. 2) a ten-year old boy, who claims to have been by himself in his father's sundry shop and to have witnessed the tragedy. According to him, A. 1 suddenly came behind the deceased and cut him with this billhook on the left shoulder. Then A. 2, came running, took M. O. l and cut him on the head and right shoulder. Then A. 3 came from the house of A. 4, took the bill-hook from A. 2 and cut deceased on his neck and again on the abdomen. Then last came A. 4 running from her house saying "life is not yet extinct, give two more blows." P. W. 1 says when she rushed out she saw A. 1 holding the deceased by his tuft and bending his head backwards, that A. 2 took the bill-hook and cut the deceased on the head and on the right shoulder. Then A. 3 took the bill-hook and cut the deceased twice on the neck and then last A. 4 came running from her house exhorting to give two more cuts. Thereupon, A. 3 rut the deceased on the abdomen after he fell down. Then, according to her, A. 1 took the aruval from A. 3 and all went away. This witness explains her omission to say anything about A. 4 in Ex. P. 1 as being due in confusion and distress.
5. The motive-background in the case is this. The deceased Srinivasa Asari was charged with the murder of A. 4's husband and their young son and of attempting to murder A. 4 herself by administering aconite poison, the accusation in that case being that he attempted in fact to poison the whole of A. 4's family. The deceased was acquitted on 5th September 1950 by the Sessions Judge of Salem in S. C. No. 85 of 1950. The judgment in that case shows that A. 4, who was P. W. 2 in that case, deposed that she had been on illicit intimacy with Srinivasa Asari for about three years but, when her husband came to know of it. She terminated it and would have nothing further to do with the deceased, who lived in a house, according to the plan Ex. P. 9. next to the house in which A. 4 lived along with her widowed sister A. 1. A. 1 appears to have been a widow for many years and to have been depending on the charity and bounty of her sister, A. 4 and her poisoned husband. It was Jess than two months after the acquittal of the deceased in that poisoning case that he was done to death in broad day light a few yards from his house. A. 2 and A- 3 lived in separate houses, marked J and H in the plan, from where the scene of offence could not have been visible, in a separate lane and with several houses intervening.
6. A significant fact is that A. 4 who was examined by the Sub Inspector at the inquest, had an incised wound l3/4" x1/2" x 1/2" on the lower third of her right fore-arm according to her wound certificate, Ex. P. 5. She had quite clearly been mixed up in the tragedy. Unfortunately she was, on the basis of the evidence of P. Ws. 1 and 2, put into the position of an accused person and in both courts took refuge in a complete denial of knowledge. In the Sessions Court, she said that she got this out on her hand while she was cutting fuel with this billhook. According to the evidence of P. W. 1, A. 2, A. 3 and A. 4 were in the village and readily came to the scene when called after the arrival of the Police, though A. 1 had disappeared. Unfortunately, we have the Sub Inspector (P. W. 12) saying in evidence in chief that he searched for Accused 1 to 3 during the night of 6th November 1950 but found all of them not available and that he arrested A. 2 and A. 3 at Dhandakarampatti on 12th November 1950. It is most regrettable that the Sub Inspector should have given his evidence in this misleading sequence, as on looking into the case diary, we find that he actually examined A. 2 and A. 3 and made a note of their statements to him on 6th November 1950 itself, bearing out the testimony of P. W. 1 that these two accused readily came after the arrival of the Police. It would appear from a letter, Ex. D. 5 written by the Sub Inspector Sri P.S. Krishnamurthi (P. W. 12) that he referred the case for instructions to his superior officers and only after the receipt of them arrested A. 2 and A. 3 presumably on the basis of the evidence of P. Ws. 1 and 2.
7. The learned Sessions Judge was greatly impressed by the evidence of P. Ws. 1 and 2 and bases his conviction of A. 2 and A. 3 on their testimony, holding it was very improbable that this widow A. 1 by herself could have caused all these fatal injuries on Srinivasa Asari. The deceased was cut in ten places on the head, neck, shoulders and abdomen and also in the left hand in the region of the fingers. We find ourselves unable to accept the evidence of these two eye witnesses, P. Ws. 1 and 2. It does not explain the injury A. 4 had on her forearm and the omission of A. 4 by P. W. I from Ex. P. 1. It is quite possible that this boy (P. W. 2) saw something of the offence and a possible encounter between Srinivasa Asari and A. 4 which culminated in A. 1 attacking him with the bill-hook she had in her hand. The evidence of P. W. 1 suggests that the whole of this family were waiting for her husband in the street that afternoon with murderous intent and that all set upon him and killed him as soon as he emerged. Even according to the prosecution, only one bill-hook was used and it was passed from one accused to the other till, for reasons which are quite inexplicable, after A. 3 dealt with the final fatal cuts, it was handed back to A. I who went away with it to Dharmapuri Police station.
8. A. 1 in the committing Magistrate's court denied having cut Srinivasa Asari, though she admitted that she appeared at the police station with the bill-hook. She said she found it lying on her way and she took it with her. In the Sessions Court, however, she took the sole responsibility for cutting the deceased, saying that it was he who had killed her sister's husband and son, who had been maintaining and protecting her after her husband died. She further said that the deceased had been proclaiming in the village that he would file a suit for damages for malicious prosecution in the poison case in which he was acquitted. There can be no doubt that this widow has been most reluctant even to attribute anything to A. 4 who was undoubtedly present at the time of this attack on the deceased, as evidenced by the injury on her hand. We are inclined to the view that the deceased when he came out of his house met A. 4, and it was during the passage of abuse between them that A. l rushed out with an aruval and later hacked him. We do not think there is anything improbable in A. 1 having caused all the fatal injuries on the deceased with M. O. 1, which she may have had in her hands cutting fuel, as she stated in the committing court.
9. A. 1 had a very powerful motive for hatred against the deceased, whom she doubtless held responsible, despite his acquittal, for the murder of her sister's husband, who had been supporting her. After his death, these two widowed sisters lived together unfortunately in a house very near that of the deceased and after his return from jail, A. 1's feelings towards him were doubtless, as she has described, very strong indeed. We can see nothing improbable in A. 1 losing all control over herself with this aruval in her hand, on probably seeing the deceased engaged in some altercation with A. 4, seeing red and then hacking him to death. We are unable to accept the Sessions Judge's appreciation of the evidence of P. Ws. 1 and 2, which seems to us extremely artificial and designed to bring in A. 1 to A. 4 and to give them each some unnatural part. That A. 1 appeared at the Dharmapuri police station 20 miles away with this blood-stained aruval and there presumably made a confession, which unfortunately is not admissible in evidence is an outstanding feature in this somewhat remarkable case.
10. We have no hesitation in setting aside the convictions of A. 2 and A. 3, who, we are satisfied, had nothing to do with the attack on the deceased. The evidence shows that the investigating Sub Inspector himself was very doubtful about charging A. 2 and A. 3 and all we can say is that it is very unfortunate that he was instructed to lay the charge-sheet against all the four accused. After perusing the case diary, we have no hesitation in expressing the view that A. 4, who gave evidence at the inquest, should have been a prosecution witness and not in the dock.
11. The conviction of A. 1 under Sections 302. I. P. C., is however correct, and is upheld. There can be no doubt, as she has pleaded at her trial that it was she who caused all these injuries on Srinivasa Asari with this bill-hook (M. O. 1). In the state of the legally admissible evidence, it is quite impossible for us to find exactly the true circumstances under which A. 1 lost all control and attacked the deceased. No plea of grave and sudden provocation has been taken, with the exclusion of A. 4 from the witness box and her being quite unjustly put into the dock as one of the accused.
12. Before dealing with the question of sentence, now that the conviction has been dealt with on the evidence legally admissible, we would like to consider from the revelations in this concrete case the present practice based It is said on existing law of withholding from defending Counsel copies of the statements made by accused persons in the course of investigation. We would like to extract here the record in the case diary of what A. 4 examined as P. W. 8 at the inquest said.
"P. W. 8 came to the spot at the time of inquest and I examined her and she stated that while she was in the street, the deceased who came from north abused her. She also abused him. In the' meanwhile A. l who was in her house to start for bringing fuel with a bill-book came there and gave a cut on the shoulder of-the deceased. The deceased Sri-nivasa Asari caught hold of the bill-hook and she attempted to snatch the same and due to that she sustained injury on hand. Then A. 1 her elder sister, snatched the bill-hook and cut the deceased on his head, stomach, neck etc., places and then A. 1 went towards the south with the bill-hook. She (P. W. 8) went to her house."
Then again, there is the following extract from the case diary also dated 6th November 1950.
"I sent for A. 2 and A. 3 noted in the margin and they came to the spot.
I questioned A. 2 and he "denied the offence and added that he was grazing his cattle in the fields and learnt about the occurrence and ran to the spot and found the deceased, and learnt that A. 1 cut the deceased with a bill-hook and that he (deceased) died.
A. 3 denied the offence and said that while he was grazing the cattle in the field he learnt about the occurrence at about 4 p.m. and came to the spot and found the deceased, learnt that A. 1 cut the deceased with a billhook and that the deceased died.
13. There can be no doubt, in our opinion, that the defence in this case has been greatly handicapped for want of knowledge by defending counsel as to precisely what A. 2, A. 3 and A. 4 told the police when they were questioned. Mr. Rajagopalachari was in complete ignorance of these diary extracts when he read them out to him &, after recovering from his initial surprise, had no hesitation in saying that a wholly different line of defence should have been adopted in this case, both in the committing court and in the sessions court. We have heard arguments by Mr. Rajagopalachari and also the learned Public Prosecutor on the expediency, in the light of the revelations in this case and also in other cases of which we have had recent experience, of furnishing defending counsel, on request, with copies of statements made by accused persons to the investigating police, as recorded in the case diary.
14. Our attention has been drawn to a Full Bench decision of four Judges -- ' Queen Empress v. Arumugham and others', 20 Mad 189 which considered in 1897 the question whether an accused person was entitled, while on remand, to a copy of the Police charge-sheet. Collins C. J. and Benson J. held that charge sheets were not public documents within the meaning of Sections 74, Evidence Act, and that an accused person is not entitled before trial to copies. Collins C. J. however specifically said that he expressed no opinion whether an accused can call for police reports and the charge sheet during the progress of the trial. Shephard J. who made the reference to the Full Bench with Subramania Aiyar J. held that an accused person was entitled to a copy of the charge sheet before the trial but not of other police report?. Subramania Aiyar J. was of the opinion that an accused was entitled not only to copies of the charge sheet but of all police reports also, before the trial began. It was not however till the year 1921 that is 24 years later that an accused person became entitled to copies of charge sheets before the trial began, by the enactment of Sections 173(4) of the Cr. P. C. which gave an accused person this statutory right.
15. The record in the case diary containing the substance of what each accused said to the Police when first interrogated is beset with a special difficulty in view of the Full Bench decision in -- 'In re Syamo Maha Patro', 55 Mad 903 (FB) which brought within the ambit of Sections 162 Cr. P. C. statements made by accused persons to the police in the course of an investigation. Reilly J. delivering the judgment of the Full Bench of three learned Judges by which we are bound, gave expression to the sharp differences of opinion on this point between Judges in our own High Court and also other High Courts. At p. 918 he observed that of the six Judges of the Madras High Court, who held the view that Sections 162 Cr. P. C. applied to statements of accused persons, Waller J. had since altered his view. There is reference in the judgment of Reilly J. to a wealth of case law, much of it conflicting. He referred to the Full Bench decision of five Judges of the Rangoon High Court, in -- 'King Emperor v. Maung Tha Din', 4 Rang. 72 F. B. which held that Sections 162, Cr. P. C. applied to oral as well as written statements. In considering the decision in --'Jagwa Dhanuk v. King Emperor', 5 Pat 63, a Bench decision by Mullick J. and Jwala Prasad J., which took the view that Sections 162, Cr. P. C. did not prohibit the admission of statements made by accused persons to the Police, provided they were not confession, Reilly J. considered the arguments pro and contra. One argument that the application of Sections 162, Cr. P. C. to a statement made by accused persons would seriously prejudice them by shutting out evidence that they had made exculpatory statements to the Police at a very early stage, Reilly J. met as follows.
"I think it is enough to say that the learned Judge in his anxiety to prevent evidence of statements which may be of help to the accused from being shut out has forgotten how often statements made by the accused to the Police may tell most seriously against them, which is the reason why the prosecution wishes to use the statements of the accused in the present case."
In the great majority of cases, which took the view that statements made by accused persons to the Police were shut out in evidence by Sections 162 Cr. P. C. it was the prosecution who wanted such statements to be admitted which while not amounting to confessions nonetheless supplied evidence against the accused. No doubt, as Reilly J. has observed, a larger number of accused would be benefited by the total exclusion of such evidence, and it would only be a comparatively small number of accused persons who in particular cases will derive some benefit by the elucidation of what they told the Police in the first instance.
16. The present state of the law as laid down in the Full Bench decision lays a heavy responsibility on trial courts, and as it appears to me justice can only be done in cases such as the present case by resort to Sections 172(2) Cr. P. C. which gives full discretion to a criminal court to call for police diaries which they "may use ......not as evidence in the case, but to aid it in such inquiry or trial". Under this section also "neither the accused nor his agents shall be entitled to call for such diaries nor shall he or ' they are entitled to see them merely because they are referred to by the court". The accused, therefore, are not entitled as of right to see any portion of the diaries that they may wish to see. If however a court on a perusal of the diary finds something there, which helps the accused to establish his innocence or to mitigate his offence, what is a court to do? The answer is by no means easy, and procedure will have, in the interests of justice, to depend on the facts of each case. I have myself, in about 20 years experience as a trial Judge in murder cases, never hesitated on perusing a case diary and finding there something helpful to an accused person in showing that portion of the diary to the defending counsel. The learned Public Prosecutor, Mr. Rangaswami Aiyangar, who has had a great deal of experience in defending criminals, has frankly stated that he has also been afforded a similar courtesy by some Judges before whom he has appeared, but he is unable to point to any specific section of law under which that indulgence, if it may be called so, has been shown. I have myself justified that practice on grounds of simple and natural justice, ns a proper user of the case diary as an aid in the enquiry or trial under Sections 172(2) Cr. P. C. Personally, I am quite unable to see how anything favourable to the accused discovered in a case diary can be utilised by the court without disclosure to defend ins counsel. He is not entitled as of right to see the case diary but, as I read Sections 172(2) there is no prohibition contained therein against the court permitting in its discretion defending counsel to see any portion of the case diary, which the court considers in the interest of justice he should see and use in the defence of the case.
17. In a number of cases, which have come up before us, and the present is a concrete one we have found defences formulated in the committing court more often than not, instructed by village lawyers and intermediaries who, in the unfortunate conditions prevailing in rural areas unserved by any channel of controlled legal service, allow their imaginations to run riot, a process which often continues in the Sessions court and sometimes even up to this Court, without any regard to the statement made by the accused when first questioned by the Police. There is an ordinary presumption that an accused person will tell his lawyer what he told the Police in the first instance. But in prevailing conditions, the defending advocate is often completely in the dark and is far from sure what exactly his client has told the Police in the first instance. An accused person in the state of the law, as it stands, has no right 'per se' to obtain copies of his statements to the Police until the law is amended. But we can see no legal impediment to the committing court permitting in its discretion and in appropriate cases defending counsel at his request to look into a case diary to verify what the accused told the Police as recorded there, before formulating his defence, under Sections 172(2) to aid the court in the enquiry or trial. It must be made clear that such a permission cannot be claimed by the accused as a matter of right. It is of comparatively little use for defending Counsel being permitted by the Sessions Judge to look into the case diary at a belated stage of the trial only when the learned Judge himself on a perusal of it finds something of great use to the accused. It is necessary for responsible defence from the start that in cases such as the present, defending counsel should know what the accused told the Police in the first instance. We have not come across any more appropriate concrete case than the present in which this course should have been 'ab initio' adopted.
18. There is a further aspect of this matter, viz., how a statement made by an accused person to the Police, -if to his advantage, can be used in the trial. It does not appear possible in view of the Full Bench decision in -- 'In re Syamo Maha Patro', 55 Mad 903 F. B. for a defending advocate even in cross-examination to ask a Police officer whether an accused at the very outset told him something self-exculpatory or for instance set up an alibi which may prove his innocence. Reilly J. referred to the decision in -- 'Sheik Kalesha in re', in which Jackson and Cornish JJ. held that a statement made by an accused to a police officer on which the defence wished to rely was shut cut by Sections 162, Cr. P. C. In these rare cases, a court which has a case diary in its possession, at the request of the defending counsel, would we think be perfectly justified in putting a question to a Police officer to elicit what an accused told him purely in the interests of the accused, within its very wide powers under Sections 165 of the Evidence Act, which permits a Judge to ask any question he pleases, in any form, at any time, of any witness about any fact relevant or irrelevant. There is in the present state of the law as regards the admissibility of statements made by accused persons to the Police, a heavy responsibility on courts in the user of case_ diaries under Sections 172(2), Cr. P. C. and on public prosecutors to bring to the notice of the trial Judge anything in the case diary favourable to the accused. Had the learned Sessions Judge perused the case diary in the present case, we have no doubt that he would have cleared up a regrettable and misleading obscurity consequent upon the Sub Inspector (P. W. 12) deposing to his inability to find A. 2 and A. 3 that night and his not disclosing the fact that he had already examined them earlier that day. We must also express our great surprise that A. 4 in both the committing court and the trial court adopted the line of defence that she knew nothing at all in view of the record of her evidence as P. W. 8 at the inquest.
19. Taking all circumstances into consideration in the matter of sentence, we consider it a fit case, while confirming the sentence of transportation for life passed on this widow (A. 1) really on, her plea of guilty, we would be justified in making a recommendation to Government for commutation of her sentence to seven years' rigorous imprisonment under Sections 401, Cr. P. C. satisfied as we are that, though she inflicted these fatal injuries on Srinivasa Asari, she and her family had sustained very grave and sustained provocation at his hands and that he gave her sister A. 4 also grave provocation in an altercation with her that afternoon.
20. We directed the release of accused 2 and 3 on 25th March 1952 at the conclusion of arguments.