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In Re: Abdul Basha Sahib - Court Judgment

LegalCrystal Citation
Subjectcriminal
CourtChennai
Decided On
Reported inAIR1941Mad316
AppellantIn Re: Abdul Basha Sahib
Excerpt:
- .....of p.ws. 4 and 5, the granddaughter and grandson of the deceased was that on the evening of 12th october accused 1 came to their house to tell their grandmother kanniammal that oil was required at the house of abdul wahab. both these witnesses say that their grandmother picked up the vessel containing oil and the other implements of her trade and went off to deliver oil as requested. the police in their investigation found that she had actually delivered oil at the house of abdul wahab that evening. a dhobi (p.w. 6) said that he had seen the deceased going in the direction of abdul wahab's house followed by both the accused. narasamma (p.w. 7) who lives on the way between the house of the deceased and the house of abdul wahab also said that she had seen the deceased going in the.....
Judgment:

Burn, J.

1. On the morning of 13th October 1939, an Adi Dravida named Mandan (P.W. 9) who lives in Poonamallee found a corpse floating in a well called Mangadu Mudaliar's well. He saw a crowd of people searching in a neighbouring well and he told them what he had seen. Amongst that crowd was Mahadeva Chettiar (P.W. 8). He and the other people with him were looking for his mother Kanniammal who had left home the previous evening at about 6-30 to deliver some oil at the house of one Abdul Wahab Sahib and had not returned. P.W. 8 had reported the disappearance of his mother at the police station in Poonamallee at 1-10 A.M. on the 13th {vide Ex. P) and had requested the police to make enquiries about her disappearance. He mentioned there that his mother was in the habit of wearing valuable jewels consisting of a gold chain made out of twenty sovereigns, gold bangles and kammals set with red stones. P.W. 8, on hearing what P.W. 9 had discovered, went to the well of Mangadu Mudaliar and saw that the corpse in the well was the corpse of his mother. He therefore went again to the police station at 7 A.M. and reported this fact. The police had the body lifted out of the well and held an inquest which showed that the woman had been brutally murdered. No jewels were found upon the body except a nose screw. After the inquest the body was sent to the doctor in charge of the Poonamallee hospital and on the afternoon of 13th October he made a post mortem examination. He found that the woman's lower jaw had been fractured, that there was a contused wound on her face, abrasions on her face and neck, that the lobes of both ears had been torn through and that seven ribs on either side of the chest had been fractured. All these injuries had been inflicted before death and were the cause of death. There were no signs of drowning.

2. The two appellants were tried by the learned Sessions Judge of Chingleput for the murder of Kanniammal. The unanimous opinion of the assessors was that accused 1 was guilty of murder and that accused 2 was guilty of an offence under Section 201, Penal Code. The learned Sessions Judge agreed with the assessors and convicted accused 1 of murder and sentenced him to death. He convicted accused 2 under Section 201, Penal Code, and sentenced him to three years rigorous imprisonment. Accused 1 is the brother-in-law of Abdul Wahab Sahib, and the evidence of P.Ws. 4 and 5, the granddaughter and grandson of the deceased was that on the evening of 12th October accused 1 came to their house to tell their grandmother Kanniammal that oil was required at the house of Abdul Wahab. Both these witnesses say that their grandmother picked up the vessel containing oil and the other implements of her trade and went off to deliver oil as requested. The police in their investigation found that she had actually delivered oil at the house of Abdul Wahab that evening. A dhobi (P.W. 6) said that he had seen the deceased going in the direction of Abdul Wahab's house followed by both the accused. Narasamma (P.W. 7) who lives on the way between the house of the deceased and the house of Abdul Wahab also said that she had seen the deceased going in the direction of Abdul Wahab's house followed by the two accused.

3. The most important evidence is connected with the discovery of Kanniammal's gold chain, gold bangles and ear ornaments. Accused 1 was arrested after the inquest and on the morning of 14th October he made a confession to the Circle Inspector (P.W. 14). The portions of this confession admissible under Section 27, Evidence Act, relate to M.Os. 1, 6, 7 and 8. He alleged that Kanniammal had been beaten with a brick by accused 2 and offered to show the place where the murder had taken place. He showed in the backyard of Abdul Wahab's house a piece of brick (M.O. 1) upon which stains of blood were found. These stains were afterwards proved to be stains of human blood. Accused 1 further said that after Kanniammal has been murdered he and accused 2 had robbed her of her bangles, kammals and chain and had concealed them in a place which he offered to show. He took the police Inspector and Sub-Inspector and three other witnesses (P.Ws. 10, 11 and 12) to a piece of waste ground in front of the Dharmaraja Koil and there dug up a spot which he had marked. He produced a piece of rag (M.0. 19) which when untied was found to contain a gold chain necklace, a pair of gold bangles and a pair of kammals (M.Os. 6, 8 and 7). These have been identified as the jewels of Kanniammal which she was in the habit of wearing and which she was wearing on the evening of 12th October when she went out. Moreover, on the kammals the Chemical Examiner found blood though the stains were so far disintegrated by the time the kammals reached the Imperial Serologist that it was not possible to say for certain that the blood was human blood.

4. Accused 2 was arrested on 15th October after the confession made by accused 1 in which he was involved. He is then said to have made a statement which led to the discovery of the oil vessel, the funnel, the ollock measure and the ladle that Kanniammal was in the habit of using. These are M.Os. 2, 3, 4 and 5 and they were found in consequence of information given by accused 2 in two ruined wells about half a mile away from the well in which Kanniammal's corpse was found. Some evidence also was let in about some articles of clothing which it was said had been left by accused 1 in the house of his brother Ismail. Blood was found on one of these garments but this item of evidence cannot be taken into consideration against accused 1 because no one has been examined as a witness to prove that they were left in the house of Ismail by accused l.

5. Both the accused denied that they had anything to do with the murder. Accused 2 pleaded alibi and examined eight witnesses in support of his plea. Accused 1 alleged that on the evening of the 12th he had been engaged in his shop until 8-30 or 8-45 P.M. and that after that had gone home and gone to bed. He said that the Chettis, namely the relations of Kanniammal, had been to his house during the night to enquire about her and that he had joined them in the search. He did not examine any witnesses to prove that he was engaged in his shop till 8-30, and when P.W. 8 was in the witness box no suggestion was put to him that accused 1 had joined in the search. The alibi of accused 1 was therefore dearly not established. The alibi of accused 2 need not be discussed in detail since we are of opinion that he must be acquitted on the evidence adduced for the prosecution.

6. Learned Counsel for appellant 1 has contended that the evidence of the witnesses who say they saw accused 1 come to fetch Kanniammal on the evening of 12th October is unreliable, and that the confession said to have been made by accused 1 to the police is inadmissible in evidence. We can find no reason whatever for rejecting the evidence of P.Ws. 4, 5, 6 and 7. No facts were elicited from them in cross-examination from which it could be inferred that they had any reason to give false evidence against either of the accused. Narasammal (P.W. 7) was mentioned by P.W. 8 in his first complaint to the police (Ex. F) which was made at 1-10 A.M. several hours before the corpse of Kanniammal was found. With regard to the statement made by accused 1 to the police learned counsel's argument is based upon an assumption that before accused 1 made any statement to the Inspector on the morning of 14th October he had already disclosed to the police what he knew. This argument is an attempt to apply the principle of decisions recently given to the effect that if the police got incriminating information from an accused person and then called upon him to repeat that information in the presence of witnesses, the statements made in the presence of witnesses would not be admissible under Section 27, Evidence Act. In the present case, however, there is no foundation for that argument because the Inspector has said quite clearly that the information given by accused 1 which led to the discovery of the jewels was disclosed to him only on the morning of the 14th in the presence of the Village Munsif (P.W. 10) and two other witnesses (P.Ws. 11 and 12). We cannot find any reason to suspect the Inspector of telling falsehood in this matter. The jewels undoubtedly belonged to the deceased woman; she was wearing them when she went out to her death; the earrings had blood on them; they were found in consequence of what accused 1 said. Accused 1's statement, so far as it relates to the discovery of these jewels, is therefore admissible under Section 27, Evidence Act. There can be no doubt that accused 1 is guilty and has been properly convicted of the murder of Kanniammal. We confirm his conviction for murder and the sentence of death passed upon him by the learned Sessions Judge.

7. The case of accused 2 is very different. He did not make any confession involving him in the murder. All that he said was that he had met accused 1 at about 7-30 on the night of 12th October and that accused 1 had given him M.Os. 2, 3, 4 and 5 and had asked him to throw them away in any well that might be on his path. The learned-Sessions Judge considers that accused 2 must have known that Kanniammal had been murdered and must have disposed of these articles in order to screen accused 1 from punishment. It cannot be said that this conclusion follows from the mere fact of accused 2 complying with the request made by accused 1. Accused 2 can only be convicted if the statement of accused 1 is taken into consideration as against him. The learned Public Prosecutor suggested that this could be done under Section 30, Evidence Act. One great difficulty in accepting this contention is that if the statement of accused 1 is taken into consideration as-against accused 2 and if it is believed, accused 2 also should be convicted for the murder of Kanniammal. In fact, if accused 1 was telling the truth to the police, it was accused 2 who inflicted on Kanniammal the injuries that caused her death. Accused 1 says that it was accused 2 who sat upon the old woman's chest and beat her on her face and neck with a brick. We are of opinion that it is not possible to take the statement of accused 1 into consideration as against accused 2. It is necessary to observe strictly the provisions of Section 27 by which the only portions of the information given by accused 1 which are admissible are those which relate distinctly to the facts discovered thereby. The facts discovered thereby, as we have already said, are the jewels of the murdered woman and the bloodstained brick (M.O. 1) which was used to beat her about the face. It cannot be said that statements made by accused 1 involving accused 2 relate in any way to these facts. All that is established as against accused 2 therefore is that he met accused 1 on the evening of 12th October and that he knew where M.Os. 2, 3, 4 and S were to be found. These facts lead to grave suspicion against accused 2 but they are not sufficient to warrant his conviction either for murder or for intentional concealment of evidence. Accused 2 must therefore be acquitted. We set aside his conviction under Section 201, Penal Code, and the sentence of three years rigorous imprisonment and direct that he be set at liberty forthwith.


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