1. This referred case and the connected appeal arise out of Sessions Case No. 137 of 1969, wherein the Sessions Judge of Salem convicted and sentenced the appellant herein, Appu alias Ayyanar to death, subject to confirmation by this Court, under Section 302, Indian Penal Code (seven counts) for the seven murders alleged to have been committed by him on the mid-night of the 27th day of May 1969 at Ennaikaranpudur, a village in Salem District.
2. The appellant is the younger brother of the deceased Periaswami. They were living together in adjoining huts. From some time past, there had been strong ill-feeling between them, on many scores. Ten days prior to this occurrence, deceased Periaswami trespassed into the appellant's land and sowed cholam. This was the last straw. Few days subsequent to this incident, the appellant went to the hut of his brother, accompained by Sorien (P.W. 6). This was with the object of murdering him. P.W. 6 refused to participate. This attempt ended there. On the night of 27-5-1969 Periaswami was sleeping in his hut in a cot. Muthammal, his wife, was sleeping in another cot. Their children, five in number, were lying on the ground. The appellant went to the hut with the bill-hook (M. O. 1) which he had taken from the house of his sister Pappathi (P.W. 7) P.W. 4, Periaswami his relation, also accompanied him upto this house without knowing the purpose for which the appellant had gone. The appellant then handed over M. O. 2 knife to P.W. 4 and asked him to guard outside. When P.W. 4 questioned him, he disclosed his design to commit the murders. P.W. 4 got terrified. But, he could not do anything, because the appellant threatened to do away with him if he made any noise.
The appellant then got into the hut and cut Periaswami in the neck and other parts of his body. Similar cuts were given by him to Muthammal and the other children who were sleeping. These persons, who were thus injured, succumbed to the injuries shortly thereafter at the spot. When this was happening in this hut, P.W. 4 rushed to the adjoining hut, and apprised P.W. 1, the appellant's wife, as to what her husband was doing. By that time, the appellant also arrived at that place, told his wife as to what he had done and left asking her to look after the children. P.W. 2, Royamuthu, and P.W. 3, Ayyammal, his wife, who were in that hut at that time, also heard what he said. Having thus taken leave of his wife, the appellant came out of the house, with the weapons and followed P.W. 4 who was going ahead. On the way, at a filed near an odai at Koodamalai, the knife M. O. 2 was thrown by him. They continued their walk for some more distance and the bill-hook M. O. 1 was then dropped by the appellant in a well near a burning ghat. They parted company at this spot and the appellant took leave of P.W. 4 saying that he was proceeding to Salem to see his advocate. P.W. 4 went home.
* * * *
(After discussing the facts and the evidence His Lordship proceeded.)
The learned Sessions Judge who had seen him (P.W. 4) in the box has chosen to accept his evidence and we also do not have any reason to differ from him in the assessment of his evidence. His evidence establishes that these murders were committed by the appellant.
3. Next we have in the case the extra-judicial confession made by this appellant to his wife P.W. 1 in the presence of Royamuthu (P.W. 2), his wife Ayyammal (P.W. 3) and Periasami (P.W. 4). P.W. 1 is the wife of the appellant and in fact the first report in the case, viz., Ex. P-10 is from her. Ramanujam (P.W. 13), the village headman had recorded it at 7-30 a.m. on 28-5-1969. She was also examined at the inquest at one-30 p.m. When examined in the Sessions Court, she has denied having made any statement like Ex. P-10 and she has been treated as hostile, with the result Ex. P. 10 cannot be taken as substantive evidence in the case. Even otherwise, under Section 122 of the Evidence Act, she cannot be compelled to disclose any communication made to her. Communications between the husband and wife during coverture is privileged and its disclosure cannot be enforced. This protective provision is based on the wholesome principle of preserving domestic peace and conjugal confidence between the spouses.
In the decision reported in Nawab Howladar v. Emperor, (1914) 23 Ind Cas 511, a widow had disclosed certain communications which had been made to her by her husband in connection with a murder. This evidence of hers was excluded by the High Court on the ground that she could neither be compelled nor permitted to disclose such communications in view of Section 122 of the Evidence Act. Jenkins, C. J., observed that the prohibition enacted by this section rests on no technicality that can be waived at will, but is founded on a principle of high import, which no court is entitled to relax. This was also the view expressed in Mt. Fatima v. Emperor, AIR 1914 Lah 380 and in Mt. Ihsanan v. Emperor, 81 Ind Cas 271 = AIR 1923 Lah 40. In State v. Norendranath Majumdar : AIR1951Cal140 , it was held that the communication between the husband and the wife did not come within any of the exceptions to Section 122 of the Indian Evidence Act, and was as such privileged and that the wife could not be called as a witness and compelled to disclose the same. In the decision Ram Bharosey v. State of U. P. : AIR1954SC704 it was held that the statements of the accused to his wife, that he would give her jewels and that he had gone to the house of the deceased to get them, were plainly inadmissible under the provisions of Section 122 of the Evidence Act.
4. But, as observed in Queen v. Donaghue, I.L.R. (1899) Mad 1, the communication between a husband and his wife is not protected if it can be proved without their assistance, for, in these communications there is no question of any compulsion or permission to the wife or the husband to disclose it. The section protects the individuals and not the communication of it. Viscount Radcliffe in Rumping v. Director of Public Prosecutions, 1962 3 All ER 256 observed that such communications could be proved by some other form of testimony as that of a witness who had overheard their confidence or by the production of a letter which contained the confidence, but had passed into other hands. In other words, the law does not protect the communications as such, but only excludes the spouse from being a witness to prove it. Thus marital communications could be proved by the evidence of the over-hearers, even though the wife herself could not have been called to testify to them. The decision in R. v. Smithies, 1832-5 C and P 332, R. v. Simons, 1834 6 C & P 540 and R. v. Bartlett, 1837 7 C & P832 are to this effect. In 1834 6 C &P; 540, two over-hearers were allowed to prove at the trail what the husband, who was tried, had told his wife in confidence.
5. We have such proof for the extra-judicial confession, in the evidence given by P. Ws. 2 to 4. P.W. 4 whose evidence we have accepted, has sworn that at a time when he was he was apprising the appellant's wife P.W. 1 as to what was happening in the adjoining hut, the appellant appeared and told her that he had done away with the enemies and that she might live happily. Their is nothing improbable in the appellant making such a statement to his wife shortly after the murder, just before his departure from his house. .. .. .. .. .. .. ..
(After discussing the evidence his Lordship proceeded.)
6. The prosecution has let in evidence to the effect that a few days prior to this occurrence, the appellant attempted to commit these murders. Sorian alias Palaniappan (P.W. 6) is the son of Pappathi (P.W. 7), the sister of the appellant. He has deposed that on one night the appellant came to the house, consumed arrack, took M. O. 1, bill-hook, and asked him to accompany him, stating that he was going to cut a ram which was available on the banks of a river nearby. He followed him. When they were near the house of deceased Periaswami, the appellant disclosed to him his design to murder his brother and the other members of his family and wanted him to assist him. P.W. 6 refused. They then returned. Observing that he was a timid fellow, the appellant told him that if he disclosed what happened to any one, he would do away with him also. Because of this, P.W. 6 did not disclose this incident to anyone.
It is urged on behalf of the appellant that this evidence is inadmissible, because it amounts to evidence of bad character. We are of the view that this piece of evidence is admissible. Murderers are frequently found busy, from sometime previous to the commission of the crime, in spreading rumours that 'from ill-health, imprudence or other cause, the existence of their victim is likely to be short'--3 Bentham's Judicial Evidence, 65, 66. 'Others prophesy meaning mischief to him in more defined terms and those in the lower walks of life throw out dark and mysterious hints as to his approaching death''--Starkie on Evidence, IV Edn, page 850. The object of all this is to prepare the minds of his friends and neighbours for the event, and by diminishing surprise, to prevent investigation into its cause. Previous attempts to commit an offence are closely allied to preparations for the commission of it and only differ-in being carried one-step further and nearer to the criminal act of which, however, like the former they fall short--Bentham's Judicial Evidence page 69. The probative force, both of preparation and of previous attempts, manifestly rests on the presumption that an intention to commit the offence was framed in the mind of the accused which persisted until power and opportunity were found to carry it into execution. such evidence will be admissible both under Section 8 and Section 14 of the Evidence Act. Illustration (c) to Section 8 refers to the procurement of similar poison by the person indicted, before the actual administration on the particular date, and illustration (i) and (o) to Section 14 are also to the point. Such evidence is thus admissible both under Section 8, as showing a preparation for the commission of the offence, and under Section 14 exposing the state of mind and intention on the part of the accused to commit the murder. As observed by Lord Chancellor in Makin v. Attorney General for N. S. W., 184 AC 57, it may be relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment, were designed or accidental or to rebut a defence which would otherwise be open to the accused. We accept the evidence of P.W. 6, Sorien, and hold that subsequent to the sowing of groundnut seeds by the deceased Periaswami in his land after a trespass, the appellant developed a state of mind to do away with him and the other members of his family, and for that purpose, he was preparing himself and in fact had gone very near his house a few days prior to the crime.
7. The prosecution also relies upon the existence of a very strong and substantial motive in the appellant for murdering his brother and the other members of his family, as was done. Where there is positive proof that a man has committed a crime, there is no room for motive or previous illwill for sustaining a conviction. But, the existence and non-existence of a motive often forms an important factor, for determining the guilt or innocence of the persons indicted. There is sufficient material on record to show that this appellant had ample and adequate motive for committing this crime. .. .. .. .. .. .. .. ..
8. Thus, we have in the case the evidence of P. w. 4 to the effect that it was this appellant who murdered these persons on the night in question. P. Ws. 2 and 3 have sworn to the confession made by this appellant to his wife P.W. 1 shortly after the murder. The appellant had taken the bill-hook M. O. 1, from the house of his sister P.W. 7 that night at about 10-30 or 11 p. m. the bill book was subsequently recovered on the information furnished by him and there has been human blood on it. He had a strong motive for doing away with his brother and the other members of his family. We have given our anxious consideration to the matter and we have no hesitation in coming to the conclusion that these murders were committed only by this appellant.
9. The murders were brutal and gruesome. We confirm the convictions and the sentence of death imposed on the appellant. We dismiss the appeal field by him.
10. Order accordingly.