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Kamsala Muneyya and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1937Mad755; 173Ind.Cas.1001
AppellantKamsala Muneyya and anr.
Cases ReferredIn Yasin v. Emperor
.....and cold blooded murder, such as has been committed on the person of pedda konda reddi, the sentence passed was clearly the proper..........was made there and two billhooks and a tarbush were recovered.4. as accused 2 was willing to make a confession, the sub-inspector wrote to the sub-magistrate and asked him to make arrangements for the confessional statement of accused 2 to be recorded, either by himself or by the sub-magistrate of kamalapuram. accused 2 having in the meanwhile been transferred to his jurisdiction, the sub-magistrate of kamalapuram was ordered to make (take?) the confessional statement and he had accused 2 brought before him on the 28th. he then informed accused 2 that he had received a requisition from the police to record his confessional statement and warned him that he was not bound to make a confession and that if he did so, any statement that he made might be used in evidence against him. he.....

Horwill, J.

1. The two appellants have been convicted of the murder of Pedda Konda Reddi, a member of the Cuddappah District Board, at about 7 P.M. on 11th October 1935, at a spot just east of Cuddappah town and within a short distance of the Kondayapalli Kunta, the Government Hospital, the High School, and the Cuddappah-Rachinnayapalli Road. P.W. 2 was with Pedda Konda Reddi when the murder was committed. On that day he had come to Cuddappah to make some purchases and on his way home called at the house of a friend of his, Mr. C.L. Narasimha Reddi, who was a District Board member, and there met the deceased. They remained at the house of Narasimha Reddi until about 6 P.M. and then left together for Pakirpalli which is about 1 miles from Cuddappah and is the village of Pedda Konda Reddi. The way to Pakirpalli lies along a footpath through Kondayapalli Kunta. Just as they were approaching the spot where the tank bund meets the footpath, they met two men, one of whom was dressed in the ordinary garb of a Hindu and the other in the tarbush and pyjamas of a Mahomedan. P.W. 2 was then about four yards behind the deceased. Just as these two men passed Pedda Konda Reddi, they turned and attacked him with billhooks and hacked him mercilessly to death. The witness remonstrated but the man in Mahomedan costume advanced to attack him. He pleaded for his life and when the man in Mahomedan dress returned to give some final blows to the deceased, the witness availed himself of the opportunity to run away. Some voices from a well near by in the bed of the tank incited the assailants to attack this witness also; but he ran in the direction of the town, and before his pursuers could catch him, others called out enquiring what had happened; and so his pursuers turned back before he actually reached the town. Panic-stricken, the witness ran towards the hospital, accompanied on the last part of his flight by P.W. 3 who was asking him what had happened. At the hospital he gave out his story to P.W. 3 and to an ayah of the Government Head quarters Hospital (P.W. 4). Soon afterwards he made a formal complaint, Ex. B, to the police.

2. In his complaint he described one of the assailants of the deceased as wearing trousers with a Mahomedan cap, of dark complexion, of quick movements, and of medium size. Of the other man he had nothing to say except that he was wearing a cloth. Two days later, on 13th October, this witness was examined under Section 164, Criminal P.C., by the local Sub-Magistrate to whom he gave a very detailed statement (Ex. C) of what had occurred; and that statement agrees very closely with his evidence in the Sessions Court. Both in Ex. B and in Ex. C he said that he could identify the two persons who attacked the deceased and threatened him, adding in Ex. C that it was a full moon night. The calendar shows that the 11th was the day before the full moon and so, unless there were any clouds at the time when the offence was committed, there was a considerable amount of moonlight. There can be no doubt at all that P.W. 2 was an. eye-witness of the murder, and in this Court the presence of P.W. 2 at the scene of offence when the murder was committed has not been disputed. He fled panic stricken to the town from the tank bund, although an elderly and corpulent man, and P. Ws. 3 and 4 who saw him immediately afterwards speak to his state of mind when they first saw him. Immediately afterwards he gave an outline of the attack to the police.

3. It was not known for many days who the murderers of Pedda Konda Reddi were. Accused 1 was not arrested until the 21st and accused 2 until the 24th. Nothing more than a few circumstantial facts pointing to the complicity of accused 1 came to light. P. Ws. 5 and 6 on the day after the murder had given information to the police, as had P.W. 3. On the 13th the Stationary Sub-Magistrate recorded a number of statements under Section 164, Criminal P.C., and among those examined were P. Ws. 2 to 4. The statement of P.W. 2 (Ex. C) has already been referred to. P.W. 3 deposed that he was coming along the path from Pakirpalli to Cuddappah and saw accused 1 to the north of the footpath wearing white pyjamas, a white shirt and a tarbush. He said that he was unable to identify him at once because he was in Muslim dress. He said to him 'who are you' and accused 1 replied: 'What is it?' Then P.W. 3 knew from his voice that it was accused 1, and so he asked him what he was doing in Muslim costume, to which accused 1 replied that he had put it on for fun. P.W. 3 also saw four persons at a well 20 yards away, who were presumably the persons referred to by P.W. 2, as having egged on the assailants. P.W. 3 then speaks to the incidents referred to by P.W. 2 after the offence was committed. P.W. 3 at the time when the murder was committed was of course not far away, and he heard the shouts of the deceased and P.W. 2 and saw the latter running back to the town. Apparently from that day onwards search was being made for accused 1 and he was eventually arrested by P.W. 30 on the 21st at the village of Rajampet, which is about 30 miles from Cuddappah. An identification parade was held on the 22nd, at which P.W. 2 pointed out this accused as the man who was wearing Mahomedan costume and had participated in the murder. A search was then made for accused 2, against whom there had been apparently little or no information. He was arrested on the 24th at about 1-30 P.M. in a field on the outskirts of Cuddappah, and produced before P.W. 30, who had been put on special duty in connexion with this case. Accused 2 was at once questioned, and he gave certain information regarding the whereabouts of the clothes worn by accused 1 and the weapons used by him and by accused 1 in committing the murder. Panchayatdars were secured and the party proceeded to the tank, where accused 2 pointed out the place where these articles had been thrown. A search was made there and two billhooks and a tarbush were recovered.

4. As accused 2 was willing to make a confession, the Sub-Inspector wrote to the Sub-Magistrate and asked him to make arrangements for the confessional statement of accused 2 to be recorded, either by himself or by the Sub-Magistrate of Kamalapuram. Accused 2 having in the meanwhile been transferred to his jurisdiction, the Sub-Magistrate of Kamalapuram was ordered to make (take?) the confessional statement and he had accused 2 brought before him on the 28th. He then informed accused 2 that he had received a requisition from the police to record his confessional statement and warned him that he was not bound to make a confession and that if he did so, any statement that he made might be used in evidence against him. He then sent him back to the sub-jail, telling him that he should think over the matter and that his statement would be recorded on the 30th. On the 30th accused 2 was again brought before the Sub-Magistrate and a number of questions put to him. When the Sub-Magistrate was satisfied that accused 2 was prepared to make a confessional statement, he recorded it. Accused 2 made a very detailed statement of the deliberations which led him to take part in the murder. (After giving an account of the confession, their Lordships proceeded.) This confession is the most important evidence in the case and has been attacked principally on two grounds: (1) that it was not a voluntary confession, and (2) that in any case it is not true.

5. With regard to the first argument, the principal point made is that the Sub-Magistrate, P.W. 25, did not ask accused 2 whether it was intended to take him as an approver. This is unfortunately true, and the Sub-Magistrate's excuse is that he did not know the Telugu word for approver. This does not seem to be either a true or a proper explanation. Obviously, the Sub-Magistrate had forgotten to ask the question. There is no single word in Telugu for approver and if there were, the word would probably be so technical that accused 2, who is a cooly, would not have understood it. It would have been easy enough for the Sub-Magistrate, if he had really remembered that that question should have been asked, to have conveyed to the accused the purport of the question laid down in the Criminal Rules of Practice. However, the question is whether the omission to ask this question invalidates the confession. The object of putting the questions set out in Rule 85 of the Criminal Rules of Practice is to enable the Sub-Magistrate to be quite sure that the statement was a voluntary one; and if one can be sure from the other questions and statements made by the accused that the confession was voluntary and was not brought about by coercion and inducement, then the confession cannot be rejected merely because a formal question was not asked.

6. There is no evidence that there was ever any intention to take accused 2 as an approver. P.W. 30, the Sub-Inspeotor in charge of this case, states, on the contrary, that no attempt was made to take this accused as an approver while he had anything to do with the case. It has already been mentioned that on the 28th, two days before the confession was recorded, the Sub-Magistrate warned the accused that if he made a statement it would be used in evidence against him and advised him to think over the matter before giving his confession. On the 30th, P.W. 25 first ascertained from accused 2 how long he had been in police custody, when the police first questioned him, and how many times the police had questioned him about this case. He was then asked if he had been forced to make a confession, to which he replied that he was making it of his own free will. In answer to a question, accused 2 also stated that he knew that the statement would be used in evidence against him and he assured the Sub-Magistrate that during the five days that he had been in the sub-jail, nobody had asked him to make any statement and that he was making the statement of his own free will and not on account of any fear that he would be beaten. The Sub-Magistrate then gave his reasons for believing that the statement was a voluntary one and asked the accused to state what he knew about the murder. After the confession had been recorded, he appended the usual certificate that accused 2 was told that he was not bound to make a confession, that if he did so it would be used against him, and that he believed the statement of the accused to bo a voluntary one.

7. In his evidence he states that he told the accused that he need have no hope that he would escape by making such a statement and indicated to him that he would be hanged as a result of making the statement. The questions put by the Sub. Magistrate make it quite clear to us that ho did explain carefully to the accused that far from his confession having the effect of getting him off, it would get him hanged; and if the accused knew this, he also knew that being taken as an approver would not help him. We have been referred to the cases reported in Govindu Subbaramayya v. Emperor : AIR1937Mad321 and Nazir Ahmed v. Emperor , but these cases do not help us, as in every case it is a question of fact whether the Court is satisfied that the statement made was a voluntary one. There may be oases, such as in Govindu Subbaramayya v. Emperor : AIR1937Mad321 , where the omission to ask the accused whether he was aware that it was not intended to make him an approver might, taken with other circumstances of the case, make one strongly suspicious that the confession was not voluntarily made. But there may be other cases, such as the present one, in which such an omission might not lead to that conclusion. One question and answer in Ex. M. has been brought to our notice as suggesting that this accused was forced to make a statement. The question was: 'Did the police force you to make a confessional statement?' to which the answer was: Head Constable Venkatayya asked me to make a confessional statement'. The Sub-Magistrate followed this up, of course, with another question:

Are you giving the statement which you are now going to make voluntarily, or is it as a result of anyone beating you and forcing you to make such a statement?

the reply to which was, 'I am going to make (it) of my own free will'. The question and the first answer of the accused show of course that the police suggested to the accused that he should make a formal confession; but presumably this is so in every case. It is most unlikely that any accused person of his own accord would ask that his confessional statement should be recorded by a Magistrate. When an accused person makes a statement to the police, one would expect the police, as a general rule, to suggest to the accused person that he should make that statement before a Magistrate and it is only after he expresses his willingness to make a statement before the Magistrate that a request is made by the police to the Magistrate to record the confession. It is then the duty of the Magistrate to remove the accused person from all police influence, to warn him that his statement will be used against him, to give him time to think over the consequences of such a confession and to satisfy himself that the statement made was a voluntary one. We think that that was done in this case; and the mere fact that some police officer, at or soon after the arrest of the accused, told him to make a confession to the Magistrate, is no proof that he was forced to make the statement. It is noteworthy that not a single question was put to the Head Constable with regard to the circumstances under which he told accused 2 to make a confession to the Magistrate. Accused 2 was arrested on the 24th and transferred to the Kamalapuram sub-jail on the 26th. Certainly from that date onwards he was free from police influence and the Magistrate had given him two whole days to think over the matter, after warning him of the consequences of his confession, before the confession was actually recorded. We are therefore satisfied that the confession was a voluntary one.

8. Not much need be said with regard to the argument that the confession was not a true one. (Their Lordships after discussing the confessional statement of accused 2 admitted under Section 27, Evidence Act, and the injuries on the deceased, proceeded.) It will therefore be seen that there is nothing in the confession of accused 2 to suggest that part of it is false. On the contrary, the nature of the story and the manner in which it was given, leave no doubts in our minds that the confession was a true one. 'With regard to the confessional statement of accused 2, rendered admissible by Section 27, we unfortunately do not know the exact words used by the accused; so that we are unable to divide up his statement literally and say that such and such a portion of it is admissible and such and such a portion inadmissible. However, we do know fairly accurately from the accounts given of the statement in Ex. P and in the depositions of P. Ws. 26, 27 and 30 the form that this confession took. The purport of the statement is certain. He was undoubtedly questioned about the billhooks with which the murder was committed and the disguise worn by accused 1 and the information given by accused 2 was as to the whereabouts of those articles. The statement made by him is therefore at least admissible as showing the knowledge of accused 2 that the weapons with which the murder was committed and the disguise worn by accused 1 were lying in a particular place in the Kondayapalli Kunta. The only other evidence against accused 2 is that of his identification by P.W. 2 as one of the men who had committed the murder. Although P.W. 2 did not describe accused 2 in Ex. B, beyond saying that he wore a cloth, he probably saw him both in Court and at the identification parade in very much the same dress as he was wearing at the time of the murder. But however little weight one attaches to the identification of this accused by P.W. 2, the evidence of the confession, Ex. M, corroborated by the fact that he was able to point out the place where the weapons used in the murder and the clothes worn by the assailant who was in Muslim attire were concealed, is amply sufficient to bring home the offence to accused 2.

9. The evidence against accused 1 is the oral testimony of P. Ws. 5 to 8, who depose that they saw him just before or after the offence was committed, the identification of this accused by P.W. 2 as the man who played the principal part in the murder, and the confessional statement of accused 2, in so far as it can be taken into account against a co-accused. The principal evidence against accused 1 us, of course, his identification by P.W. 2, and the learned counsel for the defence has spared no pains to attack this evidence. We may say at the outset that there can be no doubt at all that P.W. 2 had ample opportunity of observing the features of accused 1. (After discussing the evidence regarding the identification parade and the identification of the accused by P.W. 2, their Lordships said that they would not rely on the evidence of the identification alone were it nob corroborated by other circumstances or facts. Their Lordships then discussed the evidence of P. Ws. 3 and 5 to 7 and concluded that they were not prepared to reject their evidence and the judgment proceeded). There remains for consideration the effect of the confessional statement of accused 2 against accused 1. It is contended that the value of this piece of evidence is so little that it should not be taken into consideration at all; but if that were so, Section 30, Evidence Act, would have no practical application whatever. Confessional statements are invariably retracted as soon as the accused is re-presented, which in this particular case was very soon after the confession was made. The strongest case quoted on behalf of the accused is Sher Muhammad v. Emperor AIR 1927 Lah 765, where it is said:

The rule is now firmly established that ordinarily it is improper to use the retracted confession of an accused person against his co-accused.

10. The whole legal aspect of the case is summed up in this terse statement, the rest of the judgment discussing the facts of that particular case. The learned Judges do not say how that rule has been firmly established and what tribunals have laid down that rule. In Giddigadu v. Emperor (1909) 33 Mad 46, there was no evidence at all except the confession of the co-accused. Under such circumstances no co-accused could, of course, be convicted; for Section 30 says only that the confession may be taken into account, which presupposes the existence of other evidence. Periyaswami Moopan v. Emperor AIR 1931 Mad 177 has no application to the point now under consideration; for, the question there was whether the confession of an offence other than that for which the accused was tried could be considered against the co-accused. In Yasin v. Emperor (1901) 28 Cal 689 it is pointed out that a retracted confession is of little value against a co-accused and the fullest corroboration is necessary--far more than would be demanded for the sworn testimony of an accomplice on oath. 'With this statement we of course agree. Obviously, a retracted confesssion has little evidentiary value against a co-accused when compared with the evidence of an accomplice given on oath, which can be tested by cross-examination; but when, as in the present case, there is considerable circumstantial evidence connecting the accused with the murder, the Court is entitled to use the confession of a co-accused to remove any doubts that might still linger in its mind whether, in spite of the fact that the accused has been identified, that he was seen both before and after the offence under suspicious circumstances, yet by some chance he may not have taken part in the murder. If we doubted the other evidence, which we do not, the confessional statement of accused 2 would assure us that we were not mistaken in accepting the identification of accused 1 by P.W. 2, that accused 1 not merely stood in Muslim dress a few yards away from the path when seen by P.W. 3, but that he soon afterwards took part in the murder; and that when P. Ws. 5 and 6 say that they met the accused coming from Nabikote just after the murder was committed, they were speaking the truth.

11. We are therefore satisfied that the offence has been brought home, not only to accused 2, but to accused 1 also. No discussion of the cases put forward by the two accused in their statements is necessary: because they consist merely of denials and imputations against the prosecution witnesses. For a shocking and cold blooded murder, such as has been committed on the person of Pedda Konda Reddi, the sentence passed was clearly the proper one. We therefore confirm the convictions and sentences of both the accused and dismiss their appeals.

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