Alfred Henry Lionel Leach, C.J.
1. On 8th November, 1944, one C.N. Lakshmikanthan was stabbed while riding in a rickshaw in General Collins Road, Madras. He received three wounds and died as the result in the Madras General Hospital in the early hours of the next day. Eight persons were charged with being concerned in the murder and were committed for trial at the High Court Sessions in April of this year. All the accused were charged with being parties to a conspiracy to murder Lakshmikanthan. The first and second accused were also charged with having committed the murder. The third, fourth, fifth, sixth, seventh and eighth accused were charged with abetment as well as with conspiracy. During the trial a nolle prosequi was entered in respect of the fifth accused and thereupon he was discharged. The Jury unanimously found the first and second accused guilty on the conspiracy charge and of having committed the murder. By a majority of 6 to 3 they found the third and fourth accused guilty on the conspiracy charge and of having abetted the murder. They unanimously found the sixth and seventh accused guilty on the conspiracy charge and of abetment. By a majority of 6 to 3 they acquitted the eighth accused. The learned Judge (Mockett, J.) accepted the majority verdicts. He sentenced the first, second, third, fourth, sixth and seventh accused to transportation for life and acquitted the eighth accused.
2. By an order dated 12th July, 1945, this Court allowed the third and fourth accused to appeal on facts as well as on law under Section 411-A (1)(b) of the Code of Criminal Procedure. It refused leave to the other accused to appeal on facts, but they have all appealed under Clause (a) of the sub-section.
3. We will deal with the appeal of the third and fourth accused first and then with the appeals of the first, second, sixth and seventh accused in that order. The appeal of the third and fourth accused being on facts as well as on law, it is necessary to discuss and decide what are the powers of the appellate Court in appeals under Section 411-A (1)(b) of the Code of Criminal Procedure. Before the passing of the Criminal Procedure Amendment Act of 1943, there was no appeal from a verdict of a jury at High Court Sessions on facts. It is unnecessary to quote the whole section; it is sufficient for the purposes of this case to quote Sub-sections (1) and (2). They read as follows:
(1) Without prejudice to the provisions of Section 449, any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in Section 418 or Section 423, Sub-section (2), or in the Letters Patent of any High Court, appeal to the High Court--
(a) against the conviction on any ground of appeal which involves a matter of law only; (6) with the leave of the appellate Court, or upon a certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be a sufficient ground of appeal; and
(c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law.
(2) Notwithstanding anything contained in Section 417, the Provincial Government may direct the Public Prosecutor to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction and such appeal may, notwithstanding anything contained in Section 418 or Section 423, Sub-section (2), or in the Letters Patent of any High Court, but subject to the restrictions imposed by Clause (b) and Clause (c) of Sub-section (1) of this section on an appeal against a conviction, lie on a matter of fact as well as a matter of law.
4. Clauses (a), (b) and (c) of Sub-section (1) follow clauses (a), (b) and (c) of Section 3 of the English Act, Criminal Appeal Act, 1907. Section 4 of the English Act provides:
(1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in' any other case shall dismiss the appeal;
Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.
(2) Subject to the special provisions of this Act, the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
(3) On an appeal against sentence the Court of Criminal Appeal shall if they think that a different sentenee'should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case dismiss the appeal.
5. There is no provision in the Code of Criminal Procedure corresponding to Sub-section (i) of Section 4 of the English Act, but we do not consider that the omission affects the powers of an Indian High Court when hearing an appeal under Section 411-A (1)(b), either by way of extending or limiting them. It is however relevant to point out that Section 423 of the Code permits the appellate Court to alter the finding or direct a re-trial. It cannot, however, in an appeal under Section 411-A enhance the sentence.
6. In Rex v. Baskerville (1916) 2 K.B. 659 the Court of Criminal Appeal (Lord Reading, C.J., Scrutton, Avory, Rowlatt and Atkin, JJ.) laid down the principles which governed the Court in deciding an appeal from the verdict of a jury on the facts. In that case one of the questions was whether there had been corroboration in a material particular of the evidence of two accomplices. In Rex v. Everest 2 C.A.R. 130 the Court had said:
The rule has long been established that the Judge should tell the Jury to acquit, the prisoner if the only evidence against him is that of an accomplice, unless that evidence is corroborated in some particular which goes to implicate the accused.
7. The learned Judges who decided Rex v. Baskerville (1916) 2 K.B. 659 said that the words 'tell the Jury to acquit', should read 'Warn the jury of the danger of convicting.' In delivering the judgment of the Court in that case, Lord Reading said:
If after the proper caution by the Judge, the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated. It can but rarely happen that the jury would convict in such circumstances. In considering whether or not the conviction should stand, this Court will review all the facts of the case and will bear in mind that the jury had the opportunity of hearing and seeing the witnesses when giving their testimony. But this Court, in the exercise of its powers, will quash a conviction even when the Judge has given to the jury warning or advice above mentioned if this Court, after considering all the circumstances of the case, thinks the verdict unreasonable, or that it cannot be supported having regard to the evidence.
8. In a later case, In re Elizabeth Perfect 12 Cr. Ap. R. 273 the Court of Criminal Appeal had to decide an appeal where the judge considered the verdict of the jury to be wrong and had given acertificate permitting the appeal. It was not alleged that there had been any misdirection to the jury, that any evidence was wrongly admitted or that there was no evidence on which the jury could convict. There, Lord Reading said:
The questions in issue at the trial were purely questions of fact and were, therefore, for the determination of the jury and not for that of the Judge. Unless we, sitting in this Court, are prepared to say that, when a Judge differs from a jury on a finding of fact, we ought to conclude that the verdict is unreasonable, or that there has been a miscarriage of justice, we cannot quash this conviction. Substantially, the only evidence given was that of the prosecutor and that of the appellant. It was for the jury to say which they believed and to decide accordingly, bearing in mind that a doubtful case must Result in a verdict of acquittal. In these circumstances, it seems to us that we must accept the decision of the jury on the facts and that we are not in a position to quash this conviction, unless we substitute ourselves as a tribunal of fact when we do not have, as had the jury, the opportunity of hearing and seeing the witnesses. Therefore, this appeal must be dismissed.
9. In Sheo Swamp v. King Emperor (1934) 67 M.L.J. 664 : L.R. 61 LA. 398 : I.L.R. 56 All. 645
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such'matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.
10. The same considerations must apply in an appeal under Section 411-A (i)(b) on a matter involving a question of fact. We hold that in an appeal under that clause, the Court has power to set aside the verdict of the jury if on a consideration of the facts and all the circumstances of the case, it is convinced that the verdict is unreasonable.
11. Before passing on to the consideration of the facts in this case, we will state the position when the chief witness for the prosecution is an approver. Section 133 of the Indian Evidence Act states that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Under the English Common Law, the same rule applies but both in England and in India it has become a rule of practice and, to use the language of the Privy Council in Mahadeo v. The King (1936) 44 L.W. 253 (P.C.) it is now virtually a rule of law, that eorroboration is required. It is also an accepted rule that one accomplice cannot corroborate another; but Section 30 of the Indian Evidence Act says that when more persons than one are being tried jointly for the same offence and a confession made by one affecting himself and some of the others is proved, the Court may ' take into consideration ' the confession as against the others as well as against the person who makes the confession. There is no corresponding provision in English Law. In the recent case of In re Rajagopal I.L.R. 1944 Mad. 308 (F.B.) a Full Bench of this Court had to consider the effect of this section and it accepted as correct the interpretation to be found in Woodrqffe and Ameer All's Law of Evidence (Ninth edition, at page 312):
These words (the words ' take into consideration ') do not mean that the confession is to have the force of sworn testimony. But such a confession is nevertheless evidence in the sense that it is a matter which the Court, before whom it is made, may take into consideration in order to determine whether the issue of guilt is proved or not. The wording, however, of this section (which is an exception) shows that such a confession is merely to be an element in the consideration of all the facts of the case; while allowing it to be so considered, it does not do away with the necessity of other evidence.
12. In the present case there is evidene of a confession of one of the accused implicating himself and other accused. The learned judge in answer to a question put to him by the jury said that they should bear in mind the warning that an accomplice cannot corroborate an accomplice and that they should not attach much value to a statement by a co-accused.
13. In Mirza Akbar v. The King Emperor (1940) 2 M.L.J. 811 L.R. 67 IndAp 336 : (1940) I.L.R. 21 Lah. 612 the Privy Council held that the common intention in Section 10 of the Indian Evidence Act signifies a common intention existing at the time when the thing was said, done or written by one of the conspirators. Any statement or confession made by one conspirator to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible against another. In that case Their Lordships had not to consider the effect of Section 30 of the Indian Evidence Act.
14. We now come to the facts which have general application. Lakshmikanthan was a person of bad character. In 1932 he was convicted of forging an affidavit and sentenced to undergo imprisonment for a period of seven years. He was released from prison in 1939. In 1943 he edited a weekly publication called ' The Cinema Thoothu ' but it ceased publication in January, 1944. On the 22nd July, 1944, he became the editor of another weekly paper called 'The Hindu Nesan ' which he continued to edit until his death. He professed to have a mission in life to protect the chastity of Indian womanhood, but his profession was merely a cloak for the writing of most scurrilous articles attacking the chaiacters of prominent persons, especially persons well known in the cinema world. Among the persons he attacked were the third and fourth accused, both of whom were cinema actors and prominent in their profession. The articles which he had written against these accused were put in evidence at the trial. They accuse them of seduction of innocent girls and the wife of the fourth accused of being a prostitute. Week after week he returned to the attack and in the same scurrilous manner. In the early part of 1944 the third and fourth accused along with other persons, who had been the victims of Lakshmikanthan's defamatory pen presented a petition to His Excellency the Governor praying that action should be taken against Lakshmi-kanthan. It is the case for the prosecution that these attacks provided the motive for the third and fourth accused entering into a conspiracy to murder Lakshmi-kanthan. It is said for the defence that there were equally scurrilous articles against many other prominent persons and that there was equally strong ground for suspecting that the murder might have been instigated by others. This may be the case, but the grossly defamatory articles written by Lakshmikanthan may very properly be taken into account when considering why the third and fourth accused should take part in the conspiracy.
15. On 19th October, 1944, Lakshmikanthan was assaulted and stabbed in the neck in Venkatachala Mudali Street, Madras. The injury inflicted was not of a serious nature and had nothing to do with his death. He alleged that his assailant was the first accused and he wanted the police to prosecute him. The police, however, could not take up the case as it was non-cognizable. The result was that Lakshmikantban decided to file a complaint to the Magistrate against the first accused. In this connection he consulted Mr. J. Nargunam, an advocate of this Court on the night of 7th November, 1944. Mr. Nargunam drafted the complaint and gave it to Lakshmikanthan to have it typed. About 9 a.m. on 8th November, Lakshmikanthan arrived at Mr. Nargunam's house with the typed complaint. He left Mr. Nargunam's house at about 10 a.m. in a rickshaw, taking the complaint with him. He was attacked and fatally stabbed a few minutes later in General Collins Road. The scene of the attack was some 130 yards from Mr. Nargunam's house.
16. On the 11th December, 1944, the police arrested Jayanandam who became the approver. We shall refer to him as such hereafter. The approver was in custody at the Egmore police station from nth to 14th December. On the 15th December, he was taken before the Fifth Presidency Magistrate as he had intimated that he wished to.make a confession. When he appeared before the Magistrate he refused to make any statement. That afternoon he was taken to the Penitentiary where he remained until the afternoon of the 16th December. On that day he was again placed in the custody of the investigating police officer and detained in the Egmare police station. Rule 86(3) of the Criminal Rules of Practice states that an accused, who has been produced before a Magistrate for the purpose of making a confession and who has declined to make it or has made a statement which, from the point of view of the prosecution is unsatisfactory, shall not be remanded to police custody. If he is remanded to other custody, the investigating police officers shall not, except in the presence of the Magistrate, be allowed either to see him again or to have any further communication with him. The order of the Commissioner of Police of the 16th December, directing the approver to be detained at the Egmore police station was improper, but there is no reason to believe that it was passed otherwise than by oversight and we consider that the approver's subsequent confession was not the result of such detention.
17. On the afternoon of the 17th December, the approver was taken to the Saidapet sub-jail and thereafter he was never in police custody. That evening he wrote a letter to the Commissioner of Police in which he stated that he was going to talk to the Presidency Magistrate touching matters relating to the murder case of Lakshmikanthan and praying that he might be sent to the Magistrate. He explained that his failure to make a statement when sent before the Fifth Presidency Magistrate on the 15th December, was the result of threats made by Nagalingam (the second accused) and his relatives. On the 19th December, he wrote out in his own hand a petition to the Chief Presidency Magistrate in which he intimated that he wished to make a confession. In this petition he set out statements of fact which agree with the statements of fact which, he subsequently made in his confes sion. The confession was made on the 22nd December and duly recorded under Section 164 of the Code of Criminal Procedure by the Sub-Divisional Magistrate of Saidapet. It may be summarised as follows:
18. He and his sister had been attacked by Lakshmikanthan in an issue of ' The Hindu Nesan '. On the 7th November, 1944, the second accused came to him and told him that arrangements had been made to do away with Lakshmikanthan. Thereupon he asked the second accused how he could perform such a dangerous and big feat. The second accused replied that the third and fourth accused would supply any amount of money and also defend them if they were caught. He then persuaded the approver to follow him to the People's Park where the rest of ' the gang ' were waiting. They went by tram to the Moore Market where they met the seventh, first and sixth accused and two others. There the second accused showed the first accused to the approver and said that he was the first assailant of Lakshmikanthan and that he was prepared to kill him the next day. The sixth accused asked the approver whether the second accused had told him all about the plot and he said that he had. The sixth accused explained that they were on a ' dangerous expedition and that if by any chance anyone was caught, he should not show up his friends, ' even if torn from limb to limb. Kamalanathan (P.W.25) who was there was introduced as the person who was going to finance the ' whole show.' The eighth accused was also introduced to him. Kamalanathan said that they should go and meet the ' big persons ' and fix up the whole of the affair. They were taken to the Wall Tax Road ' Ottavadai Theatre ' and asked to stop outside. Kamalanathan went inside and asked them to come in one by one when he made signs. Fifteen minutes later Kamalanathan returned with a man who had side whiskers and asked them to go in. The eighth accused stopped outside at a place where the tram turned. The first accused waited on a platform in front of a coffee hotel. The approver, Kamalanathan, the sixth accused, the second accused and the seventh accused were taken to the make-up room in the theatre. The third and fourth accused then came into the room. The third accused said that doing away with Lakshmikanthan was a very tough job and he wanted to know whether they could do the job thoroughly. The second and seventh accused said that they would see the thing through without missing it. The third accused then impressed upon them the necessity for extreme secrecy and caution and said that if they gave up their names they would be disgraced for life. The third accused said that he would pay them Rs. 2,500 as promised as soon as the work was completed and that if the job was done thoroughly he would give further presents.
19. He further said that if by any chance they were detected he and his friends would give them all the help possible. At the instigation of the third and fourth accused they took an oath that even if they lost their heads they would not expose the third and fourth accused. The fourth accused gave to the sixth accused Rs. 500 and promised the remaining Rs. 2,000 ' after completing the job.' They took the money to the People's Park where the first and eighth accused joined them. The sixth accused gave him (the approver) Rs. 50 and asked him to meet him the next morning. At about 4-45 a.m., on the next day the second accused came to his house and woke him up. He and the second accused went together to Perambur Barracks Road and at a tea shop there they met the seventh, sixth and eighth accused. The seventh accused told him that they need not be frightened and that the second and first accused would be doing the work and all that they had to do was to be there and help them if necessary. The eighth accused went away to watch the 'house of Lakshmikanthan. They sat in the tea shop. At about 9 a.m., the eighth accused came running and asked them to get ready. The. sixth accused called them and they all went outside and the eighth accused showed them Lakshmikanthan going in a rickshaw. The first accused said that the place was not suited for the purpose and asked them to wait for Lakshmikanthan's return. They followed the rickshaw and stopped near the tram-road. The sixth accused went into the Y.M.C. A building close by. Lakshmikanthan went into the house of his lawyer, Mr. Nargunam, who was living in the next street.
20. He (the approver) was asked to stand along with the seventh and second accused v. in the street next to that in which the lawyer lived. He remained there talking to the people who were milking cows in a shed close by. The first and second accused went and stood on the other side of the house. A little later the rickshaw came out of the Vakil's house. The first and second accused followed the rickshaw, He and the seventh accused stopped near the shed. A little later the second accused came running and signed to him to run away. The seventh accused also asked him to clear out and he ran away to his house. The next day he learned that the a first accused had been arrested. In his confession the approver, of course, referred to the various accused persons by name. In the foregoing summary we have for the sake of brevity omitted the names and have referred to them by their v. designations at the trial. A pardon was tendered to the approver and accepted a by him. He gave evidence in the committal Court on the 22nd February, 1945 and his testimony there was in accordance with the statements which he had made in his confessional statement. He was called as a witness in the Sessions Court, on the 9th April, 1945, when he retracted his confession and said that he had made a it as a result of having been tortured by the police. Thereupon the approver's deposition in the committal Court was treated as evidence in the case by reason v. of the provisions of Section 288 of the Code of Criminal Procedure.
21. On the 9th November, A.K. Ramanna (P.W. 26) wrote a letter to a friend named V.S. Mani Aiyar (P.W. 28) who was then at Salem. In this letter he stated that at about 10-30 a.m. the previous day, Lakshmikanthan had been stabbed and that he died at 4 a.m., the next day. The letter also contained this statement:
Yesterday morning at 11 o'clock.. came to me and informed me that he had done away t with the life of C.N.L. and warning me not to publish this news went away.
22. The letter was opened by the censor who on the 11ith November sent a photographic copy of it to the police as it contained a clue to the murder of Lakshmikanthan. The letter was re-posted and delivered to the addressee on the 14th November. t The police had arranged that Inspector K.V. Venkatasubramaniam (P.W. 29) c should be present when the letter was delivered. At the time of delivery the 1 addressee was asked, who was the writer. The letter had not been signed by t Ramanna, but merely bore the initials ' A.K.R.' at the place of signature. V.S. fi Mani Iyer said the writer was Ramanna whose address he gave. The Inspector v. telephoned to Madras and Ramanna was traced and questioned that night. He v. admitted it was his letter. In his evidence at the Sessions Court he said that the t person whose name was left blank was the sixth accused. It may be mentioned that a Ramanna was living as a paying guest in the house of V.S. Mani Iyer in Madras.
23. In his evidence Ramanna also stated that at about 4-30 or 5 p.m., on the 8th November, the sixth accused came to him and said ' Give me your hand'. His face at that time was frightful to look at. The sixth accused told him: ' I have done away with Lakshmikanthan ' and when asked who did it he said : ' Two of my insignificant fellows did it.' He further said : ' Thiagarajan, N.S. Krishnan and Sriramulu all of us joined together and had done this. If ultimately, however, the case comes to light, they should use their influence and go up to the Viceroy and get the case dismissed.' Thiagarajan is the third accused. N.S. Krishnan the fourth accused and Sriramulu the fifth accused. He also said, ' I have just now seen Bhagavathar and Sriramulu Naidu and I have come here.' Bhagavathar s is the third accused.
24. Ramanna stated that he knew the third accused well. He had known him from 1936 and the fourth accused since 1943.
25. Kamalanathan was examined as the twenty-fifth witness for the prosecution and admitted that he had been at the Wall Tax Theatre on the evening of the 7th November and that he had met there the approver, the second, third, fourth, sixth and seventh accused, but he professed that he only went there to induce the third t accused to transfer to Madras a newspaper which he, was publishing in Trichinopoly and to give him employment in connection with it.
26. In his summing up, the learned Judge more than amply warned the jury of the. danger of accepting the approver's evidence and he indicated that Kamala-nathan should be treated as an accomplice whose testimony could not be used to corroborate the approver. He also warned them that when taking into consideration the confession of the sixth accused to the witness, Ramanna, under Section 30 of the Evidence Act, an accomplice could not corroborate another accomplice. We have been taken through the relevant portions of the learned judge's summing up and the third and fourth accused can have no complaint about his fairness. The same observation also applies to the summing-up as far as the other accused are concerned.
27. It has been suggested that there was a mis-direction on the defence of alibi set up by the fourth accused. This defence was only raised in the Sessions Court although in the committal Court the fourth accused did say that he was in Salem at the time. The learned Judge told the jury that in his opinion it was regrettable that this was not disclosed before and quoted to them a passage from the judgment of Lord Alverstone, C.J., in Rex v. George William McNair,25 T.R.L. 228 where the learned Chief Justice said that if a person charged with an offence were ill-advised enough to say he would reserve his defence and to keep back what he alleged to be the true story so that it could not be investigated before the trial, the fact that his story as told at the trial was not believed by the jury was not a ground for interfering with the verdict. The sooner an innocent man told the truth, the better it was for him. We can see no just cause for complaint here.
28. In criticising the summing up in this connection the learned Counsel for the appellant relied on the decision of the Court of Criminal Appeal in Rex v. Nqylor (1933) 1 K.B. 685 where a prisoner before his committal for trial, was cautioned in the words prescribed by the Criminal Justice Act, 1925, Section 12, Sub-section (2), namely, ' Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial.' In reply, the prisoner, said : ' I do not wish to say anything, except that I am innocent.' At the trial at quarter sessions, the Recorder commented on the failure of the prisoner to make a more complete statement and said to the jury : ' Surely, if he is innocent, one would think he would make his defence then and there.' It was held that this was a mis-direction because the true intention of the caution was to convey to an accused person the information that he was not obliged to say anything unless he desired to do so. That case has no application here. As we have said, we do not regard the learned Judge's comment as amounting to a mis-, direction and moreover he left the question to the jury quite open.
29. Now what had the jury before them on which to base their verdict in respect of the third and fourth accused? In the first place there was the deposition of the approver treated as evidence under Section 288 of the Code of Criminal Procedure which they were entitled to accept if they were convinced that the statements made in it were true. The statements in it accord with what he said in his petition to the Chief Presidency Magistrate and with his confession to the Sub-Divisional Magistrate. Of course, the approver could not corroborate himself, but the fact that he was consistent in what he said in those lengthy statements is noteworthy. That he retracted his confession and repudiated his evidence in the Commit al Court is not of great importance. The jury saw him in the witness box and were in a position to form an opinion whether he was then speaking the truth.
30. The prosecution had shown a motive for the third and fourth accused taking part in the conspiracy and agreeing to pay the assassins and have them defended should they be caught. Certainly the third and fourth accused must have been very embittered against Lakshmikanthan. Then there was the confession of the sixth accused to the witness Ramanna which the jury were entitled to take into consideration.
31. In these circumstances can it be said that the verdict of the majority of the jury in respect of the third and fourth accused was unreasonable? We consider that the answer must be in the negative. They had been properly directed and there was material on which their decision could with reason be based. It follows that the appeal of the third and fourth accused must be dismissed.
32. The approver's evidence against the first accused is corroborated by Gopal, the puller of the rickshaw in which Lakshmikanthan was stabbed. This witness identified the first and second accused as the assailants. On behalf of the first accused it was said that the pardon was illegal, that the approver's statement should not have been admitted in evidence under Section 288 of the Code of Criminal Procedure and that the approver had been induced to confess.
33. Section 337 of the Code of Criminal Procedure says that in the case of an offence triable exclusively by the High Court or Court of Session and certain other offences the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of a person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to him on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. Section 339 provides that where a pardon has been tendered and the Public Prosecutor certifies that in his opinion, a person who has accepted the tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, may be tried for the offence in respect of which the pardon was tendered or for any other offence of which he appears to have been guilty in connection with the same matter.
34. As we have already said, the confession was recorded by the Sub-Divisional Magistrate, Saidapet, on the 22nd December, 1944. On the 2nd January, 1945, the approver was taken, before the Chief Presidency Magistrate who asked him whether he had made a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every person concerned, whether as principal or as abettor in the commission of the offence, to the Sub-Divisional Magistrate and his answer was ' Yes'. To the question whether that statement was voluntarily made and whether he underslood the consequences, he again replied ' Yes'. He was asked whether he was prepared to stand by that statement in the Court at the trial of the case. He said that he was. He was then asked : ' Are you aware that you are liable for prosecution for the offence (of conspiracy to murder and murder) if you resile from the statements you made to the Sub-Divisional Magistrate, Saidapet?' Again he answered' Yes'. It is suggested that the answer to the last question implied that he was granted the pardon on the condition that he did not resile from his confession. We consider that this argument is entirely unsustainable. The Chief Presidency Magistrate had merely warned him of the action that might be taken against him under Section 339 if he gave false evidence.
35. There is equally no substance in the suggestion that the approver's deposition was unlawfully accepted in evidence. It was admitted in evidence under Section 288 Criminal Procedure Code and the section certainly permits of the admission.
36. The suggestion that the approver was induced to make the confession is based on the concluding sentences of his petition to the Chief Presidency Magistrate, on the 19th December, 1944, where he said:
I did not tell the Court because Nagalingam threatened me previously that if we told the truth before the Court myself and the rest must go to the gallows. This is truth. I request I may be examined and saved. This is truth.
36. The suggestion is that he made the confession because he understood that by doing so he would go free. The answer to this is provided by the answer to the last question put by the Chief Presidency Magistrate before tendering the pardon: ' Are you aware that the tender of pardon is no bar to your being prosecuted for the offences?' The answer was again ' Yes'. It may be pointed out that when the approver retracted his confession at the trial he made no suggestion that inducement had been held out to him but alleged maltreatment by the police. The case now set up is quite inconsistent with the approver's Own case and is obviously a mere after-thought.
37. Counsel for the first accused also contended that the learned Judge had misdirected the jury on two points. The first objection has reference to the evidence of Dr. Joseph of the Madras General Hospital. The accident register relating to the admission of Lakshmikanthan on the morning of the 8th November, 1944, contains this statement :' Alleged to have been caused by a bichuwaat 10 a.m. On the 8th November, 1944, on the road near Chengalvaraya Naicker's estate turning of Presentation Convent. Name, not known'. The prosecution suggested that the words ' Name, not known ' had been inserted afterwards, but Dr. Joseph's evidence was to the effect that the entries in the register were all made at the same time. In his summing up the learned Judge said:
You remember that the prosecution refused to call Dr. Joseph. The position is quite clear and we have the great advantage of the Judicial Committee laying it down that there is no necessity on the prosecution to call a witness they do not think is telling the truth. You have merely got, gentlemen, to look at the 'name, not known' entry. You remember, gentlemen, I insisted he should be before the Court and because the prosecution does not call him, it does not follow that he is not speaking the truth.
38. This certainly did not indicate that Dr. Joseph was unworthy of credence and again the matter was left for the jury to decide.
39. The second complaint is that the learned Judge did not explain to the jury the difference between murder and culpable homicide not amounting to murder. There was no reason for the learned Judge to enter into any discussion of what was meant by culpable homicide not amounting to murder. Lakshmikanthan had clearly been murdered and no one had suggested that the crime was culpable homicide not amounting to murder. The learned Judge told the jury that the offence was either murder or grievous hurt. If they were satisfied that Lakshmikanthan died as the result of the stabbing it was unnecessary for him to tell them that that was murder and there was no doubt about it. The appeal of the first accused is dismissed.
40. There was even more corroborative evidence against the second accused. Three witnesses Muniswami Naidu, (P.W. 21) Madanagopal Naidu, (P.W. 22) and, Chittibabu, (P.W. 23), milkmen carrying on business in the vicinity of the scene of crime, all speak to having seen the second accused in the neighbourhood on the morning of the crime. Muniswami Naidu stated that the second accused spoke to him shortly before Lakshmikanthan was stabbed. Madanagopal and Chittibabu deposed that they saw three people running away and both of them identified the second accused as one of them. Madanagopal Naidu also identified the other two as being the seventh accused and the approver. In addition to recognising the second accused Chittibabu recognised the approver.
41. It has been suggested on behalf of the second accused that the learned Judge misdirected the jury with regard to Lakshmikanthan's knowledge of the second accused and that there were further misdirections in that he did not point out to them that there was no evidence of motive so far as the second accused was concern-ed and that he did not mention that the second accused was only identified 34 days after the crime.
42. The question of Lakshmikanthan's knowledge of the second-accused is not a matter of importance, but in any event we consider there was no misdirection. What the jury had to consider was whether they could believe the evidence that the second accused had actually taken part in the stabbing and they were convinced that the evidence was sufficient for the purpose. It was not necessary for the prosecution to prove motive on the part of the second accused. The case against him was that he was a hired assassin. With regard to the third point learned Counsel said that the learned Judge stated that the first accused was identified within 48 hours but he did not emphasise that it was 34 days after the crime that the second accused was identified. The evidence is that the second accused was arrested on the date of his identification the 12th December, 1944. The Jury accepted the evidence of identification. The appeal of the second accused is dismissed.
43. In the case of the sixth accused there is the evidence of the approver, Ramanna and Muthukrishna Nayudu (P.W. 20). The evidence of the last-mentioned witness has not yet been referred to. He is the proprietor of a cycle shop in the neighbourhood of the scene of crime. He was acquainted with the first, sixth and seventh accused. He had known the first accused for a year, the seventh accused for two years and the sixth accused for ten or fifteen years. On the morning of the 8th November, 1944, he saw the first accused and three others turning into Kelly's Road from the Purasawalkam High Road. Just opposite to the Purasawalkam market there is a Hindu military hotel which is two or three furlongs away from the scene of the murder. The witness said that he saw the sixth and seventh accused standing opposite this hotel and were there joined by there first accuseds This was about 7-45 or 8 a.m. He went into the hotel himself for meal and was inside for ten minutes. He heard that day that Lakshmikantan was stabbed.
44. In this case it is said that the learned Judge misdirected the jury because he did not conform to Section 297, Criminal Procedure Code, he did not address the jury on the absence of motive and he did not mention in his summing up that Ramanna was inimically disposed towards the sixth accused and had himself been in police custody for three days. Section 297 provides that in cases tried by jury, when the case for the defence and the prosecutor's reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence and laying down the law by which the jury are to be guided.
45. We have already referred to the careful manner in which the learned Judge summed up and it is idle to say that he disregarded the provisions of this section. In this case as in the case of the second accused no motive was ruggested. The case rested on direct evidence against the accused and the jury believed that evidence. There is no evidence at all to support the suggestion that Ramanna bore enmity against the sixth accused. The suggestion that the learned Judge should have told the jury that Ramanna had been detained by the police for examination must also be rejected. The fact that he had been detained and examined by the police could not necessarily mean that his evidence was open to suspicion. The police had to examine him because of the letter which he had written to V.S. Mani Iyer in Salem. Nothing was found against him and he was released from detention. The appeal of the sixth accused is dismissed.
46. The case against the seventh accused rests on the evidence of the approver, Muthukrishna Nayudu, the cycle shop-keeper and Madanagopal Navudu, the milkman. The evidence of Madanagopal Nayudu and Muthukrishna Nayudu provides important corroboration of the evidence of the approver against the seventh accused. All that counsel can say here is that the learned Judge had not put forward his client's case sufficiently strongly in his favour. This is what the learned Judge said :
Madanagopal identifies accused 2 and 7, Chittibabu, accused 2 and the approver but not accused 7. That is very important. They did not both identify accused 7. So if they had been got at, why should they both not identify accused 7? It is a matter for you to consider.'
47. In view of this it cannot, be said with reason that the case of the seventh accused was not put strongly enough. His appeal is dismissed.
48. We may add that in accepting the majority verdicts of the jury the learned Judge showed that he agreed with their findings and this is a matter which this Court is also entitled to take into account when considering the reasonableness of those findings. We may further add that at the end of his summing up the learned Judge paid the following tribute to the jury for the manner in which they had followed the case:
In about five minutes I propose to release you for your duty of deciding the facts of this case. I have not said much about it before although counsel have. But I cannot possibly refrain from paying a tribute to you, whatever the result of your decision; that does not matter. I cannot picture any jury could possibly have given greater and more conscientious attention to this case than you. I do not know whether your questions have been counted, but I have quite a sheaf of them. They are all here and they will be attached to the record. Time and time again you have asked questions. That is of very great comfort to me and to counsel because it shows that a serious case of this sort is not being treated in a light-hearted manner but with all the seriousness it deserves. As I said, when this case is over you will not regret the immense trouble you have taken over this.
48. There can be no doubt that all the accused had a very fair trial. The convictions and sentences are confirmed.