1. The two accused in this case have been convicted of the murder of Boya Baligadu. The first accused has been sentenced to death and the second accused has been sentenced to transportation for life. The accused file separate petitions of appeal. In the referred trial, the question for decision is whether the sentence of death passed upon the first accused should, if his appeal fails, be confirmed.
2. There is no doubt on the night of the 25th of October, 1938, the deceased was murdered while he lay asleep in the pial of a temple near his house. The cause of death were four great wounds in the neck which must have been caused by a heavy cutting weapon. The Inspector of Police arrived at the village at 5-30 P.M. on the 26th. Suspicion was directed towards the first accused and search was made for him but he was not found till the 28th. On the 28th he was taken into custody and he made a statement to the Inspector in the presence of respectable persons which was reduced to writing. He then went with the Inspector and the Panchayatdars to his maternal uncle's house where he lives. From a loft in this house, he took and handed over to the Inspector a billhook which had blood stains on it. That house was immediately searched and in a box in one of the rooms, two blood-stained articles were found, namely, a banian and an upper cloth. These three articles were examined by the Chemical Examiner and the Imperial Serologist and were found to be stained with human blood. It was conclusively proved that the first accused was carrying on an intrigue with trie younger daughter of the deceased and that the deceased had very strongly objected to such conduct. It was also satisfactorily proved that the second accused, a washerman, was affording the first accused opportunities and facilities to carry on this intrigue and that the deceased was equally angry with him for that reason. The evidence on this point has not been challenged on appeal. P. W. 10, the uncle of the first accused, deposed that on the night of the crime, the first accused went to sleep on the pial outside his house and in the early morning he found that the accused had shifted his position and was sleeping outside the house. He also deposed that the first accused absconded in the morning when the crime was discovered. P.W. 7, who is the concubine of the second accused, says that on the night of the crime at midnight, the first accused came to the house where she and second accused were sleeping and woke up the second accused and took him away for some purpose.
3. Thus, there is evidence that the first accused had a motive to murder the deceased, that the first accused was abroad on the night of the crime and that two days after the crime, the first accused knew the hiding place of a weapon of the kind which must have been used to commit the crime and which was proved to be stained with human blood; also that a banian belonging to the accused--see the evidence of P.W. 10 - was stained with human blood and was found in the house where the first accused lived. In addition to that evidence, the statement made to the Inspector in the presence of several respectable persons has been put in evidence against the first accused under Section 27 of the Indian Evidence Act. That statement certainly complies with the provisions of Section 27. It was a statement which led to the discovery of the weapon with which the crime was committed. The accused said:
The billhook with which I murdered the deceased has been kept by me in the house in which I am living on a stone slab projection from the wall which is on the northern side of the strong room. If you follow me, I shall pick it up and produce it.
4. In the record of this statement Ex. K which was made at the time and which is signed by three of the Panchayatdars, the opening words of the accused are, 'The yatakodavali which I used in this case', but obviously the accused would not use an expression like that. The Inspector says that what the accused actually did say was:
I shall show the billhook with which I murdered the deceased and which I have kept in Bandarlapalli in my house.
5. The expression 'used in this case' is clearly a paraphrase of these words.
6. It is argued by learned Counsel that statements made by accused persons while in the custody of the police and apparently admissible under Section 27 of the Indian Evidence Act are shut out by Section 162, Criminal Procedure Code. Learned Counsel relies on a very recent case decided by the Judicial Committee of the Privy Council on the 20th of January last, namely, Narayanaswami v. King-Emperor (1939) 1 M.L.J. 756 : L.R. 66 IndAp 66 : I.L.R. 18 Pat. 234 . That was a case relating not to a statement made under Section 27 of the Evidence Act, but to a statement made by an accused person before he was taken into custody and the Judicial Committee has held that under Section 162 of the Criminal Procedure Code, it could not be put in evidence. There are however certain observations in the judgment of the Judicial Committee relating to Section 27 of the Evidence Act and to the question now raised by the learned Counsel whether statements admissible under Section 27 are barred by Section 162 of the Criminal Procedure Code. But there is no ruling on the point. What the Privy Council says in this judgment, is:
The words of Section 162 are in their Lordships' view plainly wide enough to exclude any confession made to a police officer in course of investigation whether a discovery is made or not. They may therefore pro tanto repeal the provisions of the section which would otherwise apply. If they do not, presumably it would be on the ground that Section 27 of the Evidence Act is a 'special law' within the meaning of Section 1 (2) of the Criminal Procedure Code, and that Section 162 is not a specific provision to the contrary. Their Lordships express no opinion on this topic.
7. It has been the opinion of several learned Judges of this Court that the provisions of Section 27 have not been repealed by Section 162, Criminal Procedure Code - see the case in Thimmappa v. Thimmappa : AIR1928Mad1028 and the case in Syamo Maha Patro, In re : (1932)62MLJ742 . The ground on which the opinion has been based is that Section 27 embodies the special rule while Section 162, Criminal Procedure Code, is the general rule and the latter according to the principle referred to by the Judicial Committee does not derogate from the former. We do not think that the aforesaid judgment in Narayanasami v. King-Emperor (1939) 1 M.L.J. 756 : L.R. 66 IndAp 66 : I.L.R. 18 Pat. 234 prevents us from following the decisions and precedents of this Court. We therefore think the statement made by the accused in this case to the Inspector after his arrest, about the authenticity of which there can hardly be any doubt, was admissible in evidence against him.
8. We think that the evidence in this case apart from the statement aforesaid was sufficient to warrant the conviction of the first accused for murder of the deceased and the statement being, in our opinion, admissible makes the case against him doubly strong. We reject his appeal and in the circumstances no other sentence but the death sentence is appropriate. We confirm that sentence.
9. As regards the appeal of the second accused, we think, it must succeed. The only evidence against him is that he produced a stick and made a certain statement about that stick. But the relevancy of that evidence is not apparent. All that the discovery of the stick amounted to was that the second accused had a stick; it did not mean that anything was discovered relating to the commission of the crime. There was other evidence against this accused, namely, that of P.W. 7, his concubine, but it was very contradictory and learned Public Prosecutor concedes that no reliance can be placed upon it. In these circumstances, the appeal of the second accused is allowed and the second accused is directed to be set at liberty forthwith.