1. Accused 1 in this case, the Appellant before us, a boy of 16, has been convicted of murdering Ambama, a girl of 12--14, at Amaravathi, on 30th September, 1931. Accused 2 in the case, who was charged with the same offence, was acquitted.
2. There is undisputed evidence that Ambama, who lived at Amaravathi with her mother, P.W. 1, was at her mother's house soon after dark on the evening of 30th September: she then went to the adjoining house, where P. W. 3 lives: about evening-mealtime she was missing: her mother and relations searched for her all night but did not find her: early the next morning her dead body was found in a ruined and deserted fort at Amaravathi: death had been due to strangulation, part of her sari having been tied tightly round her neck with four knots: there were three incised wounds, described by P, W. 10, the Sub-Assistant Surgeon, who examined the body, as 'muscle-deep,' one above the navel, one on the left side of her abdomen and one on the back of her left wrist: there were also indications that she had been raped : a pair of silver anklets, two pairs of gold-plated copper bangles and a gold bead necklace, worth in all Rs. 45--50, which Ambama had been wearing on the previous evening and was in the habit of wearing, were missing from the body. P. Ws. 2 and 4 have given some evidence against the Appellant, which the learned Sessions Judge regards as quite untrustworthy and which it is not suggested for the Public Prosecutor we should treat as of any value. P. W. 5, a lamp-lighter, has given evidence that, while he was lighting lamps on the evening of 30th September, he saw Ambama going-alone through the bazaar towards a temple, by which he appears to mean the temple close to the ruined fort, where her body was found next day. P. W. 3 says that about sunset on the evening of 30th September Ambama came to her house to play, as she used to do, and that, while they and others were playing, Ambama went away saying that the Appellant was calling her.
3. The evidence against the Appellant is that on the morning of 4th October, after he had been arrested, he said in the presence of the Inspector of Police, P. W. 7, the Sub-Inspector, P. W. 15, the Village Magistrate, P. W. 8 and P. W. 9, an Assistant Karnam, that he and Accused 2 had hidden Ambama's ornaments in the fort and that he would show them: what he said was recorded in Ex. B, which was signed by P. Ws. 8 and 9 and others: then they all went to the fort, and at a spot about 25 feet from the place where the body had been found the Appellant removed some tiles and took out the earth, in which they had been buried, a pair of silver anklets and two pairs of gold-plated bangles, which have been identified as those Ambama had been wearing. The recovery of these things is recorded in a later part of Ex. B, which is again signed by P.Ws. 8, 9 and others and at this place also by the Sub-Inspector. The evidence of what the Appellant said and did on that occasion has not been recorded in the witnesses' depositions in the Sessions Court as fully and explicitly as it should have been. But what I have mentioned is the effect of their depositions and of Ex. B. That the Appellant said and did what I have mentioned is not now disputed; nor is it disputed that the anklets and bangles then produced by him, M. Os. 1 and 2, are the anklets and bangles which Ambama was wearing on the evening of 30th September. And of neither his production of the ornaments nor his statement that he and Accused 2 hid them has the Appellant ever offered any explanation. At the trial he merely denied them.
4. It has been contended for the Appellant that evidence of his statement that he and Accused 2 hid the ornaments in the fort is not admissible. But that part of his statement distinctly relates to the discovery of the ornaments and is admissible under Section 27 of the Evidence Act--of. Queen-Empress v. Nana I.L.R. (1889) 14 Bom. 260 and the opinions of all the Judges in Sogaimuthu Padayachi v. King-Emperor I.L.R. (1925) 50 Mad. 274. What is much more seriously contended is that the production of the ornaments by the Appellant and his statement that he and Accused 2 had hidden them provide no ground for inference that he murdered, or took part in the murder of, Ambama. It is suggested that from the Appellant's possession and hiding of the ornaments no more serious inference should be drawn than that he stole the ornaments. Mr. Vepa for the Appellant has relied on the opinion of Wallace, J., in Sogaimuthu Padayachi v. King-Emperor I.L.R. (1925) 50 Mad. 274, with whom, when the difference between Wallace, J., and Devadoss, J, was referred to him, Spencer, J., agreed. In that case there was evidence that the Pandarasannadhi of a mutt had been murdered and that some jewels, currency notes, etc., belonging to the murdered man or to his mutt were produced by the accused after making statements admissible under Section 27 of the Evidence Act that they had buried them. The accused offered no explanation how they came to be in possession of the things; but Wallace, J., refused to draw an inference that they had taken part in the murder. I gather from the report that the things recovered were buried by the accused at a considerable distance from the mutt, where the murder was committed. It appears that none of the things was on the person of the murdered man at the time he was killed, that there was no evidence that they were in the mutt at the time of the murder, that there was no evidence that they were missing when the murder was discovered and that there was evidence that, after the murder was discovered and before the loss of these things was discovered, the jewel-room of the mutt, in which they had been kept, was raided by the people of the crowd who came to the mutt after the murder was discovered. With respect it appears to me clear that Wallace, J., was right in that case in refusing to draw from the production of the jewels and notes by the accused and their admissions that they had buried them an inference that they had taken part in the murder of the Pandarasannadhi.
5. Mr. Vepa however relies, not on the actual decision in that case, but on passages in the judgments of Wallace, J., and Spencer, J. In Wallace, J.'s judgment he says:
In such a case I am confident that neither law nor justice justifies the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen property. The Court has to be satisfied not merely that the thief could not have come into possession of the property unless murder has been committed, but also that he could not have come into possession of the property unless he himself has taken part in the murder or was privy to it.
6. Spencer, J., expressed agreement with the first of those sentences and also said:
When the charge is that the accused committed murder or theft in a building or both, is it legitimate to presume that the accused are guilty of the more serious offence of murder because they are unable or unwilling to explain their possession of stolen property? I think the answer must be that if there is other evidence to connect the accused with the death of the murdered man, a jury or in this country a Judge, may find upon circumstantial evidence that he is the murderer. But when the unexplained possession of stolen property is the only circumstance appearing in the evidence against an accused charged with murder and theft, the accused cannot be convicted of murder unless the Court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered.
7. With great respect these general statements do not appear to me to have been necessary for the disposal of the case in which they were made. But it must be remembered that the first sentence quoted from Wallace, J.'s judgment begins with the words 'In such a case,' meaning such as the one with which he was dealing; and I do not think it was fair to the learned Judge to quote the rest of the sentence, as Spencer, J., did, omitting those very important qualifying words. But with the greatest respect I do not understand why the sentence even with those qualifying words appears in the judgment. I do not understand why any reference to the nature of the punishment which may follow should be brought into a discussion of the inference of fact to be drawn from certain evidence. And, as for convicting a man of murder in such a case or in any case 'simply because he does not plead guilty to being a thief or a receiver of stolen property,' no one can seriously suppose that any such question ever arose. And the statement that, 'the Court has to be satisfied not merely that the thief could not have come into possession of the property unless murder has been committed but also that he could not have come into possession of the property unless he himself has taken part in the murder or was privy to it,' whether intended to apply generally or only to the case with which the learned Judge was then dealing, was I venture to think a serious overstatement. When it is the duty of a Judge or a Jury to draw from evidence a reasonable inference, it is not their duty to find that there was no conceivable possibility other than the conclusion which they reach. It is not possible for reasonable men to conduct the affairs of life or to make judicial decisions on questions of fact with mathematical certainty. And again with the greatest respect Spencer, J.'s remark as to what can be done 'when the unexplained possession, of stolen property is the only circumstance appearing against an accused charged with murder and theft' does not appear to me to be helpful apart from the fact that it is inconsistent with the latter part of the same sentence. We are here dealing with inferences of fact and presumptions of fact within the principle of Section 114 of the Evidence Act. It is often instructive to observe what inference other Judges have thought proper to draw from certain evidence or what assumptions or presumptions of fact they have thought fit to make in certain circumstances. But outside the sphere of presumptions of law it appears to me a waste of words and effort for any Judge or any Court to attempt to lay down by general ruling, or even to express general opinions, what inference may or may not be drawn by other Judges from other facts in other cases. That is a matter which Anantakrishna Aiyar, J., and I had to discuss recently in Sri Raja Bommadevara Chayadevamma v. Venkaiaswamy (1931) 62 M.L.J. 511. There is one general rule which must never be forgotten, namely, that in making presumptions of fact or in drawing inferences of fact from evidence a Judge or a Jury must always have regard to all the known facts of the case. And that they must do so because they are required to decide on all questions of fact as reasonable men. To attempt to isolate a particular fact or group of facts from surrounding circumstances and to discuss the logical inference may be useful mental exercise; but it appears to me wholly out of place in a judicial decision.
8. What are the facts proved in this case The girl Ambama was murdered in the ruined and deserted fort at some time between lamp-lighting time on the evening of 30th September and the early morning of 1st October: she was also raped: ornaments of considerable value, which she habitually wore and which she was wearing on the evening of 30th September, were missing from her body when it was discovered the next morning, though there were then on the body some trinkets of small value: the Appellant, as he admitted on 4th October, with Accused 2 buried all the missing ornaments but one at a spot in the fort only a few yards from the place where the girl was murdered, and from that spot he produced those ornaments: he made that admission when he was under arrest for the murder of the girl to the officers who were investigating the murder: neither then nor at any other time has he given any explanation admissible in evidence of his connection with the ornaments. Of the surrounding circumstances we may infer from the evidence that Ambama might go about the town by herself without exciting surprise, that her mother, when she was missing, thought it possible that she had gone off to watch a theatrical performance, and that she went away from P. W. 3's house on the evening of 30th September in the middle of a game, saying that Accused 1 was calling her, which did not excite any protest from P. W. 3. What is the reasonable inference to be drawn from the proved facts? It has been suggested that before it can properly be inferred from these facts that the Appellant took part in the murder of Ambama all other possible explanations of his part in burying the ornaments must be shown to be untrue or very improbable and that the fact that he was at one time in possession of these ornaments shows at the utmost that he took part in stealing them: possession of stolen property it is urged may be evidence of theft but not of a more serious offence. These arguments I think involve confusion of thought. The evidence that an accused person was in possession of stolen property soon after it was stolen is most commonly of use in theft cases. But the possession by itself is never sufficient evidence that the possessor was the thief. In such cases it is the possession of the stolen property soon after the theft combined with the failure of the possessor to give any reasonable explanation of his possession which enables the Judge or Jury to draw an inference that he was the thief, if after considering all the circumstances, so far as they are known, they think that inference reasonable. There may be many conceiveble explanations why the accused person was in possession of stolen property. He might have been induced by the real thief innocently to take care of the stolen things; he might have been compelled to do so under a threat of violence; he might have seen the real thief drop them or he might have found them lying on the ground, and in either case he might have intended to misappropriate them or merely to keep them until he ascertained who was their owner; he might have himself stolen them from the original thief or have robbed or murdered the original thief in order to get possession of them. There may be a hundred possible explanations other than that he himself was the original thief. But it is not for the Judge or Jury to invent or imagine such explanations. It is for the accused person to give his explanation, if he has one. If he gives no explanation, then it is for the Judge or Jury as reasonable men to draw an inference from the proved facts after considering all the circumstances. And on the way to that inference they may raise such presumptions of fact as appear to them reasonable presumptions which arise from their experience of the world and of life, the course of human conduct and human nature. Such presumptions they will often reach by unconscious reasoning, and they will be based not on facts proved by evidence in the case but on facts of general knowledge. In essence such presumptions also are inferences of fact. It is not the law that the Judge or Jury must be certain that no other explanation of the facts is possible before they find the accused person guilty. But, if their inference is that he is guilty, it must be a reasonable inference reached with due regard to all the circumstances and with such care and assurance as a reasonable man would think necessary before he drew an important inference in his own most serious affairs, and all the facts proved must be clearly in their minds, including the very important fact that the accused person has offered no explanation of his possession of the stolen things. The Judge or Jury must be satisfied that there is no reasonable doubt that the accused person was the thief, and in that sense they must be satisfied that the only explanation of the facts reasonably to be accepted is that he was the thief. It is not required that they should be satisfied that no other conceivable explanation is consistent with the facts. If the accused person offers a reasonable explanation, then, as pointed out by the Court of Criminal Appeal in Rex v. Schema and Abramovitch (1915) 84 L.J. K.B. 396, it is for the prosecution to show that that explanation is untrue. But, if the accused offers no explanation, it is not for the Judge or Jury to invent one. One of the facts before them, which it is their duty to take into account, is the fact that he has offered no explanation.
9. The possession of stolen things and the failure to explain that possession may be relevant and important facts in cases other than those of simple theft. When the theft has been committed in the course of, or in connection with, house-breaking, they may often be important facts for use in making an inference that the accused person took part in the house-breaking. And, when things, which were on a murdered person's body at the time when he was murdered, are traced to a person accused of the murder and he gives no explanation of his possession of them, those may be important facts for use in making an inference that he took part in the murder--of. Queen-Empress v. Sami I.L.R. (1890) 13 Mad. 426, The Public Prosecutor v. Chirreddi Munayya : (1911)21MLJ1071 and The Emperor v. Sheikh Neamatulla (1913) 17 C.W.N. 1077. In the present case it is possible to suggest many conceivable explanations how the Appellant came to join with Accused 2 in burying Ambama's ornaments. It is not inconceivable that they took the ornaments from her while she was alive and that some one else afterwards murdered her. It is not inconceivable that they found her lying dead and then removed her ornaments. It is not inconceivable that Accused 2 murdered her and afterwards forced the Appellant to assist him in burying the ornaments. It is possible to imagine many other explanations of what the Appellant has admitted that he did. But it is not for us to invent those explanations. During all the time which has elapsed since the Appellant made his admission on 4th October he has never offered any such explanation. We have no right, and the learned Sessions Judge had no right, to indulge in speculation. We must return to the question what in the circumstances is the reasonable inference from the facts proved, the murder of Ambama in the ruined and deserted fort, the removal of her valuable ornaments on the night of her murder, the burial of all but one of those ornaments in the fort a few yards from the scene of the murder, the Appellant's production, of those ornaments, his admission while he was under arrest for the murder of Ambama to the officers who he knew were investigating that murder that he and Accused 2 had buried the ornaments there and his failure to offer any explanation why he did so. The learned Sessions Judge and three of the four assessors drew the inference that the Appellant took part in the murder of Ambama. In my opinion that was a reasonable inference, which in the circumstances they were entitled to make. In my opinion there is no sufficient reason to doubt that that was the right inference to make.
10. Mr. Vepa has urged that this case is complicated by the fact that what the Appellant admitted was that he and Accused 2 buried the ornaments and that, even if the Appellant took part in burying them, we are left in uncertainty whether he or Accused 2 actually committed the murder. He urges also that, as the Appellant is a boy of 16 and Accused 2 a young man of 23, it is more likely that Accused 2 was the murderer than the Appellant. He has invited our attention to Public Prosecutor v. Venkatamma 1932 M.W.N. 461 to show that, where there is a doubt which of two persons committed a murder, neither can be convicted of it. In that case two women, a mother and daughter, were charged with the murder of a little boy. There was evidence, which all the learned Judges accepted as sufficient, to prove that the boy was murdered in the house where both the women lived when no one but the women were there and therefore that the boy was murdered by one or other of the women or by both. There was also evidence that the two women joined in disposing of the body. On a difference of opinion between Waller and Krishnan Pandalai, JJ., Curgenven, J., agreed with Krishnan Pandalai, J., that it was not proved that both the women took part in the murder, that one or other of them must have been guilty of murder, but it was not clear which, and that therefore both must be acquitted of murder, though both should be convicted of causing evidence to disappear. I do not think that case is of help to us. Their relation to each other might well induce either the mother or daughter to help the other in disposing of the body if the other had committed the murder. I gather from the report that only the daughter admitted taking any part in disposing of the body and she attributed the murder to her mother and denied having' had anything to do with it, a denial which neither Krishnan Pandalai, J. nor Curgenven, J. was satisfied was untrue. In this case the position is quite different. The Appellant has admitted that he and Accused 2 buried Ambama's ornaments. He has offered no explanation why he joined Accused 2 in doing so. He is of a different caste from Accused 2, and no explanation can be inferred from any circumstance in the case why he should join Accused 2 in burying the ornaments where they were found if he had not taken part in the murder. Mr. Vepa is right in laying stress on the difference in age between the two Accused, from which it may reasonably be inferred that the Appellant was not the leader. But it cannot be said that his statement that he acted with Accused 2 in burying the ornaments in the absence of any further explanation leaves a reasonable doubt that Accused 2 alone may have committed the murder and may afterwards have compelled or induced the Appellant to assist him in the simple matter of burying the ornaments.
11. Mr. Vepa has raised one other contention for the Appellant that he was not properly examined by the Sessions Judge in accordance with the provisions of Section 342, Code of Criminal Procedure. That section provides that, after the prosecution witnesses have been examined, the Judge shall question the accused generally on the case for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Before the committing Magistrate the Appellant had merely said that he knew nothing about the murder. The Sessions Judge asked him whether the record of his statement before the committing Magistrate was correct, which the Appellant said it was, and apart from asking whether the Appellant intended to examine defence witnesses the only other question put by the Sessions Judge was 'Do you wish to say anything more now ?' Mr. Vepa urges that it was incumbent on the Sessions Judge to draw the Appellant's attention to his production of the ornaments and his admission that he had joined in burying them and to give him an opportunity of explaining those facts then if he wished to do so. I agree that the Sessions Judge might have put more explicit questions to the Appellant. Indeed I think many Sessions Judges fail to carry out properly the duty imposed on them by Section 342 of the Code, especially when the accused are undefended. But it is a very difficult duty and a duty which has to be performed with the greatest caution so that without the slightest flavour of cross-examination, without asking anything which may lead the accused to incriminate himself, the important points against him may be brought to his notice and he may have an opportunity of explaining them. The task is such a difficult one that, when the accused is represented by counsel, it is often in his interest that the Judge should formally comply with the section by asking a general question and then leave the accused's counsel to offer explanations on his behalf in the way most favourable and least dangerous to him. In the present case the Appellant has nothing to complain of in this respect. He was represented by counsel, who no doubt put forward the Appellant's case in the manner which appeared to him best. And besides that, when the Appellant was asked by the Sessions Judge whether he wished to say anything more than he had said before the committing Magistrate, he took the opportunity to deny that he ever showed Ambama's ornaments to the Police and that they were ever in his possession and added that he did not know who had given them to the Police. It will be seen therefore that the Appellant on that occasion gave the answer he wished to give to the question about the ornaments which Mr. Vepa complains was not asked. In the circumstances the Appellant was not prejudiced in any way by the method of his examination by the Sessions Judge.
12. In my opinion the conviction of the Appellant was right; his conviction and sentence should be confirmed and his appeal dismissed.
13. In conclusion there are two matters which I think call for some remark. First, the learned Sessions Judge allowed questions to be put to the Sub-Inspector, P. W. 15, and put a number of questions himself to that witness, which were inadmissible. Statements made by a witness to the Police in the course of the investigation of a case can never be used to corroborate the witness's evidence ; and, if the written record of what a prosecution witness has said to the Police is to be used to contradict him under Section 162, Code of Criminal Procedure, it must be proved and used in accordance with the provisions of Section 145 of the Evidence Act. The learned Sessions Judge should be careful not to transgress the provisions of Section 162, Code of Criminal Procedure, in future. Secondly, the learned Sessions Judge in his anxiety to do justice to the case has written a very careful and very elaborate judgment, but it is far too long and contains a number of repetitions. I should be the last to encourage Sessions Judges to write short and perfunctory judgments in serious cases. The judgment in such a case should set out the effect of the evidence fully, the accused's case, the attacks which are made upon the evidence by either side, the Judge's own criticisms of it and the reasons for his conclusions. But in this case the learned Sessions Judge has written much more than was necessary. The whole oral evidence in the case occupies only 17 printed pages. The judgment covers 19 closely printed pages, each of which contains about twice as many words as a page of evidence. In writing such a judgment the learned Sessions Judge has given unnecessary trouble to himself and unnecessary work to those who have to read his judgment.
Horace Owen Compton Beasley, C.J.
14. I entirely agree and only desire to make a few observations with regard to Sogaimuthu Padayachi v. King-Emperor I.L.R. (1925) 50 Mad. 274. On the facts of that case I quite agree with Wallace, J., and with Spencer, J., to whom the case was referred to on a disagreement between Devadoss and Wallace, JJ., that it was not right to draw the inference that the accused had taken part in the offence of murder merely from the production of the jewels by the accused and their admissions that they had buried them, for which matters no explanation was given by the accused; but with the general observations of Spencer, J., and Wallace, J., with regard to whether it is open to the Court to draw such inference in cases where the charge against the accused is not one of theft or of receiving stolen property, I find myself in disagreement with those learned Judges. Wallace, J., has stated that the Court has to be satisfied not merely that the thief could not have come into possession of the property unless murder has been committed but also that he could not have come into possession of the property unless he himself has taken part in the murder or was privy to it. Spencer, J., has stated that, when the unexplained possession of the stolen property is the only circumstance appearing in the evidence against an accused charged with murder and theft, the accused cannot be convicted of murder unless the Court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered. Wallace, J., qualifies his statement by the use of the words 'in such a case '; but Spencer, J.'s observations have no such important qualification. In my view, it is not correct to say that the Court is not entitled to draw the inference that the accused committed a murder or was present when it was committed when the accused is found in possession of the property proved to have been in the possession of the murdered person at the time of the murder or is able to point out the place or places where such property is concealed and admits having concealed such property and fails to give any explanation for the possession of those goods or their disposal, or such an explanation as can reasonably be accepted. Section 114 of the Indian Evidence Act allows the Court to draw inferences of fact and presumptions of fact. That section provides:
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
15. This section, therefore, entitles the Court to draw any reasonable inference or presumption of fact. It is a matter of common procedure to utilise evidence of this kind and the presumption such as this in connection not only with theft and the receipt of stolen goods but with more aggravated offences. I propose to refer to two cases only. One of which deals very clearly with the presumption in the case of the offence of receiving stolen property and the other with the presumption in a case of murder. The former is an English case, viz., Rex v. Schama and Abramovitch (1915) 84 L.J.K.B. 396. The appellants there were charged with the offence of receiving stolen goods well knowing the same to have been stolen. The evidence for the prosecution established that the appellants were in possession of goods recently stolen and the Judge in directing the jury said:
It is the duty of the prosecution to prove the case against the prisoners. The burden of proof is on them up to a point, that is to say, they have to prove that the goods were stolen, and the stolen goods were in the hands of these people; but then the prisoners have to give an account of how the goods came into their possession
As I said from the beginning the prosecution have to prove that these men were dealing with stolen goods. That they have done. The prisoners are then put to explain how it came that they were dealing with these stolen goods, and to give an explanation which will satisfy twelve reasonable men.
16. It was held by the Court of Criminal Appeal that this was misdirection and that the true position was that, in the absence of any explanation by the accused of the way in which the goods came into his possession, which might reasonably be true, the jury might convict the prisoner but that, if an explanation were given which the jury thought might reasonably be true, although they were not convinced of its truth, the prisoner was entitled to be acquitted inasmuch as the Crown would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt of the accused. The other case is The Emperor v. Sheikh Neamatulla (1913) 17 C.W.N. 1077. There it was held by Jenkins, C.J., and Sharfuddin, J., that, where in a case of murder blood-stained ornaments were found in the room occupied by the accused and the evidence established that those articles belonged to the deceased, and in the Sessions Judge's charge to the jury there was no direction pointing out that the possession in the case, if believed, was a fact from which the Court might presume not merely theft or receipt of stolen property but also murder with which the accused was charged, that was a serious omission detracting materially from the value of the verdict and opinion of the jurors. Jenkins, C. J., points out in the course of his judgment that it is clear that the inferences and presumptions in criminal cases which are provided for in Section 114 of the Indian Evidence Act arise not only in connection with cases of theft and receipt of stolen goods but also in connection with other offences. I have thought it necessary to make these observations which are entirely in agreement with those which have fallen from my learned brother, because Sogaimuthu Padayachi v. King-Emperor I.L.R. (1925) 50 M. 274 is constantly quoted in this High Court as an authority for the principle that Criminal Courts in the absence of any explanation by the accused can only draw an inference that the accused committed the murder where no other inference is possible. It was not necessary in Sogaimuthu Padayachi v. King-Emperor I.L.R. (1925) 50 M. 274 to lay down any such general principle and for that reason it cannot be accepted as a decision upon this point; and, for the reasons I have already given, I do not agree with the opinions of the learned Judges on this question in that case.