1. The appellant has been convicted and sentenced to death by the learned Sessions Judge, South Malabar, for the murder of a Moplah woman and her son, a child of seven, on the 9th July, last.
2. The woman whose name was Beema Umma had come to the house of the appellant in order to attend upon his wife during her confinement. The evidence for the prosecution was to the effect that the woman and her child went to bed in the house of the appellant on the night of the 9th July, and the next morning they were missing. Their dead bodies were discovered on the 22nd July buried in the compound of the appellant's house near the well. The lady doctor (P.W. 1) who made the post mortem examination on the 23rd was unable to say what the cause of death had been in either case owing to the advanced stage of de-composition which both bodies had reached. There was however no difficulty about the identification of the bodies.
3. The evidence against the appellant was partly direct and partly circumstantial. The direct evidence was given by his own son Mamad Koya examined as P.W. 13. He is a boy of 16 years of age and he said that on the night of the 9th July, he woke up hearing a cry and saw his father by the side of Beema in the courtyard tightening a cloth round her neck. When Beema ceased to cry out and lay motionless, his father, P.W. 13 says, then took Beema's son to the yard and strangled him to death. Afterwards P.W. 13 under the instructions of his father helped to carry the body of Beema to a side room in the south of the house. The father carried the corpse of the little boy to the same room and the appellant locked up that room. Next morning P.W. 13 says that again under the instructions of his father he sold two gold manikathilas belonging to the deceased Beema to a goldsmith P.W. 6. On the following day, the 11th July, he says that he sold six gold manikathilas to a shroff in Calicut who has been examined as P.W. 7. The money received for these jewels, he says, he gave to his father. On the Saturday, the 10th July, he says that his father buried the bodies in a pit in front of the house and four days later his father dug a fresh pit near the well and re-buried them there. The appellant's wife was examined as P.W. 11 and she said that Beema had gone to sleep in the house on the night of the 9th July, and that after midnight she heard some cry uttered by Beema and in the morning Beema and her son were not to be seen.
4. The statement of P.W. 13 is corroborated to some extent by P.Ws. 6 and 7 although P.W. 6's evidence was not very satisfactory regarding the date on which he purchased the two gold manikathilas. In his chief examination he said' that he had bought them on Saturday, the 10th July. That would correspond with the evidence of P.W. 13 but in cross-examination he admitted that he did not keep accounts for his trade and said that he remembered the date because it was the day after a kuri draw on the 20th Mithunam. The 20th Mithunam was 5 days before the death of the woman and the child, because the 9th July, 1937, corresponds to the25th Mithunam. Another goldsmith P.W. 9 gave evidence regarding the purchase of gold chittus from P.W. 13 on the 29th March, 1937. This was more than three months before the murder and it is only important because the motive put forward by the prosecution in this case is that the appellant had borrowed the chittus from the woman in March, that she had been demanding the return of them and that since the appellant was unable to return them he had killed her. It is necessary to point out here that the evidence regarding the motive was inadmissible. The only evidence that the woman was demanding the return of these jewels consists in statements alleged to have been made by Beema herself to P.Ws. 10, 11 and 14. Those statements are inadmissible since they are statements made by a deceased person not falling within Section 32 of the Indian Evidence Act. See Venkatasubba Reddi, In re (1913) 61 M.L.J. 608 : I.L.R. Mad. 931.
5. The circumstantial evidence is to the effect that the appellant showed the place in his compound where the bodies were buried and admitted to the Sub-Inspector P.W. 3 that he had killed Beema and her son and that with the assistance of his son he (P.W. 13) had buried the bodies in the compound. This evidence is of course of the greatest importance. The statement of P.W. 3 is corroborated by that of the Adhigari P.W. 2 and that of a neighbour P.W. 15 who both said that the appellant pointed out the place where the bodies were buried and dug them up. It is not however possible to accept at its full value the evidence of the Sub-Inspector and P.Ws. 2 and 15. The reports of the inquests held on the dead bodies have been filed in this case as Exs. D and D-1. Both these reports were prepared by the Sub-Inspector P.W. 3 and both of them contain statements not consistent with the evidence given by the Sub-Inspector at the trial. In both cases there is a statement in the inquest report that the dead body was found at 11 A.M. on the 22nd July, at a place pointed out by Veerankutti Haji, that is, the present appellant, and his son Mamad Koya (P.W. 13). Both reports moreover contain a statement that death was due to beating with a heavy stick and the heavy stick was produced and marked M.O. 1. In the case of the woman the inquest report says in answer to question 9 that she had been:
Buried after being done to death with a heavy stick. The portion of about 1 1/4 cubits long stick of rosewood produced by Mamad Koya is a sawn piece smoothened at one part. He says that it was used to beat the deceased to death and the remaining portion was burnt to ashes.
6. The answer to question 10 in the same inquest report (Ex. D) is that death was due to violence 'as said above with hewn piece of wood', and the answer to the question whether any person or persons were suspected is that the murder is suspected to have been done by Veerankutti Haji and his son Mamad Koya as they pointed out the place of burial after murder. In the case of the child there is a statement that he had been:
Killed with a heavy stick applied to the neck. Mamad Koya, son of Veerankutti Haji, produced a heavy stick 4 inches thick and about 1 1/4 cubit long, partly burnt, and made of hewn rosewood smoothened at one end.
7. In Ex. D-1 also the death is said to be the result of beating. Now these statements in the inquest reports, as the learned Public Prosecutor very rightly contended, are not evidence in the case. But these inquest reports have been filed and they have been written by P.W. 3. It is therefore clearly incumbent upon P.W. 3 to explain the difficulties which arise. The statements in the inquest reports are statements reduced to writing by P.W. 3 immediately after the discovery of the bodies. P.W. 3 therefore ought to have been cross-examined with regard to the differences between them and the evidence given in the Court. The evidence of P.W. 13 does not indicate death caused by beating with a stick but it indicates death by strangulation both in the case of the woman and in the case of the child and it is clear that if the place of burial was pointed out by the son as well as by his father, it will be very doubtful whether the statement which the appellant is said to have made to P.W. 3 will be admissible under Section 27 of the Indian Evidence Act.
8. Since the statements in the inquest reports cannot be used to discredit the evidence of the Sub-Inspector unless they are put to him under the provisions of Section 145 of the Indian Evidence Act, it is necessary to order a re-trial. As the learned Sessions Judge has observed, the evidence of the son P.W. 13 must be regarded practically as the evidence of an accomplice and therefore the statement said to have been made by the appellant to the Sub-Inspector that he killed Beema and her son on Friday night becomes of the utmost importance. If it is admissible, it corroborates sufficiently the evidence of P.W. 13. If it is not, there is very little, if any, corroboration of P.W. 13's evidence. Since a re-trial is being ordered, it is not desirable to say more about the merits of the case.
9. The conviction and sentence are therefore set aside and the case must go back to the present Sessions Judge for re-trial.
10. We are informed that the appellant's son P.W. 13 has not yet been tried although there is a case pending against him under Section 201, Indian Penal Code. This is very remarkable, seeing that the appellant's trial was over before the end of October last. The Sessions Judge will be asked to explain the delay. It is very undesirable that anything should be done to give rise to a suspicion that the son is going to get off scotfree if the father's conviction is confirmed.
11. It is not at all clear from the records why the appellant and his son were not charged and tried together. As we have noticed already, the result of the inquest was an opinion that the murders had been committed by both and the police First Information Report was made accordingly on 22nd July. It is not explained how the son came to be exculpated of the offence of murder in the charge-sheet. And certainly the disposal of the dead bodies is alleged to have been the joint act of both for which normally they should be tried together.