1. The appellant was convicted in the Sessions Court of Coimbatore of the offence of murder and sentenced to death. The charge against him was that on the 13th November, 1929, he murdered a woman named Unnamalai on a road between two villages not far from the village of Aranapalayam. The murder is alleged to have taken place between cock-crowing time and just after dawn because at the latter time P.W. No. 7 was informed that a woman was lying dead on the road to the north of the village and he went and saw the body which lay about two furlongs from his house. He identified the body as being that of a woman who had taken her meals and slept in his house the provioua night and had left the house a little before cockcrow together with the appellant. The woman and the appellant had come to the house the evening before and they asked for food and it was given to them and then the woman and the appellant slept on the pial that night. If the evidence of this witness is to be believed--and there is no apparent reason for disbelieving it--then the deceased was last seen in the company of the appellant very shortly before the hour at which she was murdered. The evidence does not stop there because there are other prosecution witnesses who speak to having seen the couple together before this. Two days before the occurrence they went to the house of P.W. No. 6 at Okkilipalayam and asked to be allowed to sleep on his pial and were allowed to do so and left the following morning. Prosecution witness No. 14 says that he saw them both together on the 7 th November and P.W. No. 16 saw them together in October-November. The evidence of these witnesses can be believed and indeed it in not disputed by the appellant that they did visit the house of P.W. No. 6 and the house of P.W. No. 7 on the days when those witnesses say they did, for he had made a long statement Ex. E. in which he admits having done so. This confession was subsequently retracted. His case in this confession is as follows : The deceased was trying in various places to find a house to live in. He accompanied her to those places but no house was available. They were travelling about from one place to another. On the day of occurrence at about 5 o'clock in the morning after leaving P.W. No. 7's house the deceased sat down at the junction of the Arasapalayam and' Seerapalayam roads refusing to go to her village to which she had been, advised by the appellant to return. He endeavoured to pursuade her to go to her village saying that they had gone about for five or six days in search off house but had found none but she lay down her by her hand and tried to make her get up. He said to her, ' On account of you they are scandalising me too. I cannot be here any longer.' She refused to go and lay down. She took the knife out of his waist, put it into his hand and asked him to cut and throw her away and be off. He said he would not do so but she seized the dhoti he was wearing and urged him to cut her. Thereupon he cut her neck with the knife. While she was holding his dhoti the knife hit her first on the left shoulder and caused an injury. He then went away to his village taking the knife with him and when the Police questioned him he gave the knife to them on Wednesday.
2. The learned Sessions Judge came to the conclusion that this confession Ex. E was a voluntary one and with that conclusion I entirely agree, Prosecution witness No. 1, the Stationary Sub-Magistrate who recorded the confession, says that he warned the accused that he was not bound to make any statement and that any statement he made might be used against him. The appellant had been sent on the 28th November, 1929, to the witness by the Podanur Police for remand and he also received a requisition from the Sub-Inspector to record his confession; but the witness did not record it on that day as the appellant had up to that time been in Police custody but examined him two days later in the meantime remanding him to the Central Jail, Coimbatore. There is no reason to suppose that the confession was other than a voluntary one. The body of the deceased woman was not officially discovered until the 15th although witnesses for the prosecution had seen it on the 14th without telling the authorities about it Prosecution Witness No. 7's evidence is corroborated by that of P.W. No. 8, and the dead body was seen by P.Ws. Nos. 9,10, 11 and 12. It was P.W. No. 12 who gave P.W. No. 13 the village Munsif the information about the corpse on the 15th November. The corpse had two injuries, a cut wound on the neck and one on the shoulder.
3. The earlier history of the relationship between the appellant and the deceased woman is that the appellant appears to have kept her up to some four years before the murder but there is no apparant motive for the murder though it is suggested by the prosecution that the appellant feeling that the deceased was an embarrassment murdered her in order to get rid of her. As against this theory there is the statement of the appellant that he was willingly accompanying the deceased during the last days of her life. An attempt was made to support the case against the appellant by evidence with regard to a gold bangle which, it is alleged, was in the possession of the deceased at the time of her murder.
4. This bangle was recovered from the appellant's mother by the Police when the appellant accompanied by the Police asked his mother to give up the bangle to them but the evidence does not, in my view, prove that the deceased woman had the bangle at the time of the murder. The bangle is an ordinary thin-gold one of which there are many thousands and is one which is ordinarily worn by a male and I am not satisfied that it was on the dead body of the deceased at this time. There can be no dispute about the ownership of M.O. No. 1 in view of the fact that it was at the request of the appellant delivered to the Police. But there is no satisfactory evidence to show that the deceased had the bangle on when she died. An endeavour was made by the defence in the Sessions Court to show that the body was not the body of the woman seen in the Company of the appellant but, in my view, the evidence of the witnesses who saw her in the company of the appellant the night before, namely P, Ws. Nos. 7 and 8 sufficiently identifies the corpse as that of the woman who stayed in P.W. No. 7 's house the night, before. The appellant attempted after retracting his confession to set up an alibi but the evidence in support of it is obviously false. The learned Sessions Judge says that he cannot bring himself to believe that the deceased was a consenting party to the murder and he, therefore, disbelieves that part of the appellant's confession although he believes most of the other facts stated in it. There are no eye-witnesses of the killing of this unfortunate woman and the possibility that she may have asked the appellant to kill her cannot be dismissed altogether in view of the fact that this unfortunate woman had been wandering about from place to place according to the confession trying to find a house in which to live but unsuccessfully. It is not impossible that under these circumstances feeling desparate and depressed she asked the appellant to kill her and there is no real motive proved by the prosecution for the appellant deliberated killing her of his own free will. I think that in this state of affairs he must be given the benefit of the doubt and that the whole of his confession must be accepted and that I must find that he killed the deceased at her request. What then, is the legal position? It is argued on his behalf that on these facts the appellant is entitled to the benefit of Exception 5 to Section 300, Indian Penal Code, It reads as follows :
Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
5. From the evidence it is obvious that the deceased was more than 18 years of age and she was, therefore able to consent to her killing. Several authorities on this point were referred to and all of them seem to me clearly to support the appellant's contention. The first of these is Queen v. Baboolun Hijrah 5 W.R. 7 Cr., where it was held that if a man above the age of 18 years submits himself to emasculation, performed neither by a skilful hand, nor in the least dangerous way, and dies from the injury the persons concerned in the act are guilty of culpable homicide not amounting to murder. In Queen v. Anunto Rurnagat 6 W.R. 57 Cr. (3) 18 C. 484, the accused and his wife being overwhelmed with grief for the loss of their child determined to kill themselves. His wife made repeated requests to him that he should kill her and after a time he did so by striking her three blows with a adze. The Sessions Judge who tried the case was of the opinion that Exception 5 to Section 300, Criminal Procedure Code did not apply to the case because he was of the opinion that the woman was killed whilst she was asleep; but on appeal it was held that the case did come within Exception 5 to Section 300, Indian Penal Code, and that the accused was guilty of culpable homicide not amounting to murder punishable under Section 304, Indian Penal Code. Then there is Queen, Empress v. Nayamuddin 18 C. 484, where in a case in which it was found that accused persons were guilty of rioting armed with deadly weapons in a premeditated and prearranged fight which appeared to be a regular pitched battle or trial of strength between the two parties concerned in the riot and that in the course of the riot and in prosecution of the common object of the assembly, one of the accused attempted to kill a man under such circumstances that his act amounted to attempt to murder, the question arose whether that act could be said to bear a lose grave character by reason of Exception 5 to Section 300, Indian Penal Code, and it was held that the case did not fall within the exception. O'Kinealy, J., was of the opinion that before Exception 5 can be applied, it must be found that the person killed was, with a full knowledge of the facts, determined to suffer death or take the risk of death and that this determination continued dp to, and existed at the moment of his death. In Ujgar Singh v. Emperor 43 Ind. Cas. 413 : ; 45 P.R. 1917 Cr. 19 Cr. L.J. 125, the accused killed his step-father, who was an infirm old man, with his consent in order to involve some of their enemies in trouble by charging them with the murder and it was held that the case was covered by Exception 5 to s.300, Indian Penal Code, and that the accused was guilty of an offence under Section 304 of of the Penal Code. In Emperor v. Bharat Bepari 62 Ind. Cas. 414 : 33 C.L.J. 179 : 25 C.W.N. 676 : 22 Cr. L.J. 526, the accused, the parents of a child, offered the child to the crocodiles in a tank in the belief that though the child would be taken away, it would be returned unharmed and thereafter would lead a charmed life and attain to a good old age it was held that they were guilty of an offencs under the latter part of Section 304, Indian. Penal Code. This case, of course, is not strictly in point as this was not a case of Exception 5 to Section 300, Indian Penal Code. In Emperor v. Ram Dayal 21 Ind. Cas. 682 : 36 A. 26 : 11 A.L.J. 997 : 14 Cr. L.J. 634, it was held that parsons actively assisting a Hindu widow in becoming a sati are guilty of the offence of abetment of suicide as defined in Section 306, Indian Penal Code, in Emperor v. Vidyasagar Pande : AIR1928Pat497 , Emperor v. Ram Dayal 21 Ind. Cas. 682 : 36 A. 26 : 11 A.L.J. 997 : 14 Cr. L.J. 634 was followed. In Masum Ali v. Emperor 117 Ind. Cas. 890 : A.I.R. 1929 Lah. 50 : Ind. Rul. (1929) Lah. 714 : 30 Cr. L.J. 855 a case very much in point the accused strangled his beloved aged 16 years to death upon their decision to die together in despair of the future separation and feeling that they could not live apart and it was held that this was essentially the case where the spirit, if not the letter of Exception 5 may be applied and though convicted of murder, the sentence should be transportation for life. Had the murdered girl been above the age of 16, the offence would have been culpable homicide not amounting to murder. There is an unreported Madras case viz., Criminal Petition Case No. 646 of 1925 where the wife was beaten to death in the belief that it would drive the devil out of her and it was held that the accused was guilty of an offence under Section 304, Indian Penal Code.
6. It is obvious from all these authorities, the facts of this case being as I have found them, the appellant is entitled to the benefit of Exception 5 to Section 300, Indian Penal Code and must be convicted only of culpable homicide not amounting to murder under the earliar part of Section 364, Indian Penal Code. His conviction under Section 302 of the Indian Penal Code must be set aside and also the sentence of death passed upon him and in respect of this conviction under, Section 304, Indian Penal Code, earlier part, he must receive the maximum sentence namely transportation for life.
7. Walsh, J.--I agree.