1. The learned Chief Justice acting under Clause 25, Letters Patent, has reserved as a point of law for determination under Clause 26 the question whether certain statements given in evidence at the trial of M. Ramanuja Ayyangar for murder were admissible. The statements which are in question were made by the prisoner while he was in the custody of a Police Officer at the shop of a witness, J.W. No. 10, and had relation to the sale of a mattress by that witness at that shop to the prisoner on the January 12, and to the carriage of the mattress by a coolie woman, P.W. No. 11, from the shop.
2. The circumstances in which the statements came to be made may be briefly narrated. It is in evidence that the murdered woman had left her husband on August 4, and from that date had been living with the prisoner at different places in Madras, From December 23, until the evening of January 11, which was the last occasion according to the evidence on which she was seen alive, the prisoner and the woman were living together at 24 Peddu Naicken Street. On the evening of 12th a package was brought to the Egmore Railway Station in a cart and a luggage ticket taken for its despatch by train that night to Karunghuzi by a man who has been identified as the prisoner. The package was not claimed on arrival at Karunghuzi next morning and lay in one of the Station offices until the smell of it led to its being opened and to the discovery of the body of the woman sewed up in a coir mattress. This was on the 14th. The medical evidence showed that the woman had been strangled. Police investigation began forthwith. The prisoner, who had moved from his lodging in Peddu Naicken Street, on the 13th, was arrested on the afternoon of the 23rd. The same afternoon, in consequence of information given by the prisoner, he was taken by a Police Officer, P.W. No. 42, to the shop of P.W. No. 10 and it was there that the statements, the subject-matter of the point of law reserved, were made. P. Ws. Nos. 10 and 11, it should be observed have identified the mattress found in the package round the body as the mattress which was sold to the prisoner on January 12.
3. In examination-in-chief the shopkeeper, P.W. No. 10, deposing to the visit of the prisoner with the Police to his shop, said:
The accused pointed out the shop, saying that it was in that shop that he purchased the mattress.
4. The witness was cross examined upon this, and he said:
It is because 10 or 11 days after he made the purchase he came to the shop and himself pointed out the shop saying that it was at, this shop that he purchased, adding 'I paid an advance of eight annas and subsequently paid Rs. 2-8-0' that I remember this man.
5. The learned Advocate, for the prisoner pursued this topic, and in answer to further questions, the witness stated:
The car stopped in front of my shop at about 4 P.M. They all got down and entered the shop, and as soon as they entered, the accused, looking at me, said 'I have purchased from him on the 12th a coir mattress.
6. And again:
It was the accused that was looking at me and asking me, 'I purchased from you, it is not (is it not?) on the 12th a coir mattress?' I replied to the accused 'I will look into the account and tell you'.
7. Witness then stated that he looked into his account book, and said:
When I looked into the account, I found that on the 12th, there was a sale of coir mattress and two pillows for Rs. 3 12-0 and another coir mattress for Rs. 3 and I said, therefore, I did not know whether it was the one or the other that I sold to the accused. Thereupon, the accused said, 'I purchased it of you for Rs. 3; I paid an advance of eight annas, and I sent the balance of Rs. 2-8-0 through the coolie woman.'
8. Thereupon he was asked:
So it was the accused that reminded you of the purchase. Otherwise you would not have known it?
9. And the witness' answer was: 'Otherwise I could not have known it'.
10. The coolie woman, P.W. No. 11, who was near the shop at the time of this visit on the 23rd, waiting for a job, in cross examination said:
The accused himself mentioned me and said that it was a woman wearing a coral necklace.
11. In answer to a further question the witness said:
When I went there the accused said, 'It was this woman that carried the article.'
It is upon his mentioning it that I remembered. Pointing to me he said; 'It is this coolie.'
12. The Police Officer, P.W. No. 42, in cross - examination as to when the prisoner pointed out the coolie woman said:
It is only after the accused pointed out Muhammad Kasim (P.W. No. 10) and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that that was the coolie who carried his mattress.
13. The first question to be considered is whether the statements made by the prisoner on this occasion amounted to a confession. I think they did. They come within the definition of a confession in Stephen's Digest of the Law of Evidence as an admission suggesting the inference that the prisoner committed the crime charged against him. It was the case for the prosecution that the prisoner was the man who despatched the package containing the dead body in the mattress from Egmore Railway Station on the evening of the 12th. His admission, therefore, that on the morning of the 12th he had purchased a mattress was a highly incriminating statement. The confession having been made by the prisoner when he was in Police custody is ruled out by Section 26, Evidence Act. But it has to be determined whether any fact has been deposed to as discovered in consequence of the confession. If any fact, provided it is a relevant fact, has been so discovered, Section 27 permits so much of the confession as distinctly relates to the fact thereby discovered to be given in evidence, the reason of the rule being that the discovery of the fact confirms the confession. The fact alleged to have been discovered in consequence of the prisoner's statements is that he purchased a mattress from P.W. No. 10 on January 12, and had it carried from the shop by the coolie woman, P.W. No. 11. The Police Officer, P.W. No. 42, deposes to this discovery. The witness has deposed:
He (the prisoner) took me direct to that shop and there pointed out Muhammad Kasim (P. w. No. 10) as the man from whom he purchased the mattress.
14. And with reference to the coolie woman, the witness stated that the prisoner pointed her out and said that she was the coolie who carried his mattress. If P.W. No. 10 and P.W. No. 11 had denied all knowledge of the prisoner and his purchase, or had been unable to recollect anything of the incident, no fact would have been discovered in consequence of the prisoner's confession, and his confession would have been entirely groundless. But the consequence of the prisoner's statement, was that the Police Officer discovered not merely a shopkeeper and a coolie woman, but that the one had sold a mattress to the prisoner and that the other had carried it for him from the shop. But the sale of the mattress and the carriage of it had, of course, to be proved like any other fact. But inasmuch as P.W. No. 10 and P.W. No. 11 have deposed to the sale of the mattress to the prisoner, I think it can be reasonably said that the discovery of the sale of a mattress to the prisoner on January 12, was the consequence of the prisoner's confession. It was the confession that directly led to the Police Officer making the discovery. The circumstance that prisoner's purchase of the mattress was already known to P. Ws. Nos. 10 and 11 (although temporarily forgotten until the prisoner's visit to the shop with the Police reminded them of it) would not prevent the discovery of the purchase from being a discovery of the fact by the Police Officer within the meaning of Section 27: Superintendent and Remembrancer of Legal Affairs v. Lalit Mohan Singa Roy 49 C. 167 : 62 Ind. Cas. 578 : A.I.R. 1922 Cal. 342 : 25 C.W.N. 788 : 22 Cri. L.J. 562.
15. It has been contended that what the Police Officer discovered was not a 'fact' within the contemplation of the section. 'Fact' is defined by the Evidence Act, Section 3, to mean and include (1) anything, state of things, or relation of things capable of being perceived by the senses. In my view the definition does not restrict a fact to something which can be exhibited as a material object. The learned Crown Prosecutor gave an illustration of a wider meaning of the word. He supposed the case of a prisoner confessing to having kidnapped a girl and informing the Police where he had confined her. I think that the discovery of the girl in that place in consequence of the information given by the prisoner would be the discovery of a fact. It would be the discovery of a 'state of things.' In. Sukhan v. Emperor 10 Lah. 283 : 115 Ind. Cas. 6 : A.I.R. 1929 Lah. 344 : 30 Cri. L.J. 414 : 30 P.L.R. 197 : 11 Lah. L.J. 159 the majority of the Full Bench held that the statement of the prisoner that he had pledged jewelry with a certain man was admissible in consequence of the discovery of the jewels with that man. The fact of the pledge was there treated as a fact discovered. Pledged jewels would naturally be in the possession of the pledgee. In the event of a purchase of an article, such as a mattress, the thing purchased would ordinarily have passed out of the possession of the person who sold it; but I cannot see why a purchase should be any the less 'fact' than a pledge. If the thing purchased has been proved to have been sold and has been identified as the thing sold to the prisoner, all the conditions necessary to the discovery of the fact of purchase are forthcoming. I think that the discovery of the purchase of a mattress by the prisoner on January 12, was the discovery of a relevant fact in consequence of the confessional statements made by the prisoner to P.W. No. 42 and that the statements distinctly related to the fact discovered. The statements set out in the case reserving the point of law were therefore admissible.
16. This conclusion makes it needless for me to discuss the question whether, assuming that the evidence of the prisoner's statements should have been excluded, the other evidence in the case was sufficient to sustain the conviction. But as the question was argued, I will say that there was ample evidence, quite apart from the confessional statement, to support the conviction. The conviction therefore must be upheld.
17. The facts have been set out in the judgment of my learned brothers and need not be repeated by me.
18. Without meaning any disrespect to the erudite argument of the learned Advocate for the prisoner, I do not propose to refer to any of the English cases quoted by him. The question for our consideration is whether certain statements alleged to have been made by the accused while in the custody of the Police are admissible in evidence. It is now settled beyond dispute that the law of evidence in this country is contained in the provisions of the Evidence Act. Therefore although study of the English cases may be useful and instructive to any one who wishes to learn the history of any particular section, or to grasp the principles underlying the law of evidence, it is not legitimate to attempt to deduce the law from the English decisions. When the terms of any provision of the Evidence Act are clear and unambiguous, it is our duty to apply them without hesitation. We are not permitted to say, after discussion of the English cases on which the provision is based, that the legislature most have meant something different from what it has in fact laid down.
19. The present case is in one sense quite free from complications. The learned Crown Prosecutor did indeed make a submission that the statements of the accused with which we are concerned might be admissible under Section 8, Evidence Act, as conduct. But in view of the terms of Expl., Section 8, the learned Crown Prosecutor, very properly, as I think, did not seriously press such a contention. The only section with which we have to do is Section 27 of the Act. If these statements are admissible at all it must be under Section 27. If they come within the terms of Section 27, they are admissible; if they do not, they are inadmissible.
20. Section 27 runs as follows:
Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.
21. As the first word shows, that is a proviso, and it is now well settled that it is a proviso to both Sections 25 and 26 which immediately precede it. Those sections exclude confessions made to a Police Officer, and confessions made by any person whilst he is in the custody of a Police Officer, unless in the latter case the confession be made in the immediate presence of a Magistrate. This section therefore provides that if certain conditions are fulfilled, a confession made by a Police Officer, or a confession made by a person in the custody of a Police Officer may be proved. It is not, however, necessary that the information given by a person in the custody of a Police Officer shall be a confession before it can be proved under the provisions of this section. This is clear from the words used. Any information which relates distinctly to the; fact deposed to as discovered in consequence of the information received, may be proved. In addition it is laid down that such proof may be given even if the information amounts to a confession; it is the words, 'whether it amounts to a confession or not,' which make this section an exception to the general rules embodied in Sections 25 and 26.
22. Strictly speaking therefore it is not important to decide whether the statements alleged in this case to have been made by the accused amount or do not amount to a confession. The section says that even if they do, they may be proved, subject, of course, to the fulfiLlment of the other conditions prescribed. If they do not amount to a confession, they are equally, if not a fortiori, provable. For myself, I do not see how these statements can properly be described as a confession, in any complete sense. No one, I imagine, would hold that the jury could have convicted the accused of the offence of murder, if nothing more had been proved against him than that he had made these statements. Even if the jury had been entirely satisfied that the accused had made these statements, and that they were true, they could not have held on them alone that the accused had committed murder. They are confessional statements in the sense that, if believed, they establish one of the many facts which taken all together prove the guilt of the accused. It is impossible in my opinion to rate these statements higher than that. Indeed, it is merely to state an obvious truth to say that if the Police had not been able to adduce any other evidence than this, that the accused had bought the mattress in which the corpse was found tied up, and had that mattress taken to the house, in which he was living, he would never have been put on his trial. The statements are incriminating certainly, and to that extent, they are of a confessional nature, but cannot be properly described as any thing like a complete confession.
23. Taking now the provisions of Section 27, there is no doubt but that the accused, on January 23, 1934, when he is alleged to have made these statements, was a person accused of an offence, and was in the custody of a Police Officer. He had been arrested by the Inspector of Police, (P.W. 42) on a charge of murder, and he was in the custody of that officer. The next point to consider is, in the words of the section, whether any fact was deposed to as discovered inconsequence of information received from the accused while in custody. This point is readily settled by a reference to the evidence of P.W. No. 10, the shopkeeper who said he sold the mattress to the accused, and of P.W. No. 42, the Police Inspector. P.W. 10 says: 'About 10 or 11 days afterwards, about 4 P.M. this Inspector and another Ayyar came with the accused and the accused pointed out the shop, saying that it was in that shop that he purchased the mattress.' This is the first item of evidence reserved for our consideration by my Lord, the Chief Justice. Again, P.W. No. 42 the Police Inspector, says in chief examination that he went to the shop of Muhammad Kassim, (P.W. No. 10) on the information of the accused, and that the accused jointed out the premises, and that he, (the Inspector), discovered the witness Thayi (P.W. No. 11) on her being pointed out by the accused. In answer to a question by the Court the Inspector said: 'Yes. He took me direct to the shop and there pointed out Muhammad Kassim as the man from whom he purchased the mattress,' Further in cross-examination, the Inspector replied to questions put to him as follows:
Q. And did you see the woman Thayammal when you went there?
A. Absolutely not.
Q. When did she turn up there?
A. It is only after the accused pointed out Muhammad Kassim and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that that was the coolie who carried his mattress.
24. These passages show beyond the possibility of doubt, that two facts were deposed to as discovered in consequence of information given by the accused. The two facts are: (2) that the mattress was purchased by the accused from P.W. No. 10 and (2) that the woman P.W. No. 11 was engaged by the accused to carry the mattress to the house in which he was then living. No attempt was made at the trial, so far as can be inferred from the record, to show that these two facts were discovered in any other manner or in consequence of information given by any one else. The only reasonable conclusion is that these facts were really discovered in consequence of the information given by the accused while he was in the custody of the Police Inspector. That is more than is required by the terms of Section 27. The section does not require more than that certain facts shall be deposed to as discovered in consequence of information received from a person accused of an offence. As I have said, Mr. T.R.V. for the accused does not contend that these facts were discovered in any other manner than that described by the prosecution. Nor does he contend that they are not relevant facts. Indeed in a branch of his argument which I shall consider later, he contends that these were the most important facts in the whole case, but for which the jury could not, or at any rate would not, have convicted his client. He is compelled for the purposes of this case to contend that though these are facts, and relevant facts, they are not the kind of facts with which Section 27 is concerned.
25. The argument, as I understand it, is briefly as follows. Confessions made to the Police or by persons in the custody of the Police are excluded because there is a grave risk of their being false. But in the words of Woodroffe and Ameer Ali.
the necessity for the exclusion disappears in a case provided for by this section, when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given. It is this guarantee, afforded by the discovery of the property, for the correctness of the accused's statement, which is the ground of the admission of the exception to the general rule. The fact discovered shows that so much of the confession it immediately relates to is true.
26. It follows according to Mr. T.R. V's contention, that the facts referred to in Section 27 must be of a particular kind, must have a particular character. They must be of such a nature that by themselves, without any accompanying statement of a witness, they demonstrate the truth of the information given. In one word, he contends, the facts must be 'self-probatory.' This is an instance of the practice which I have already deprecated. From the reason underlying Section 27 an attempt is made to deduce the conclusion that Section 27 does not really mean all that it says but only a part of it. Section 27 says 'any fact,' but inspite of that, the contention is, we must suppose that it means only facts of this peculiar nature. I must decline for my part to accept any such contention. Nothing can be easier to understand than the words 'any fact,' and I am not prepared to hold that they mean less than they say. I shall therefore not discuss any of the numerous cases cited by Mr. T.R.V. in which the learned Judges have gone the length of holding that the only facts contemplated by Section 27 are actual physical material objects. There if no warrant for any such limitation.
27. It can be even contended very fairly, as the learned Crown Prosecutor has contended in this case, that the facts, discovered in consequence of the information received from the accused satisfy the test deduced from the reason underlying the rule. The accused gives information of the facts of his purchase of the mattress and of his engagement of the coolie woman to carry it to his residence. In consequence of that in formation the Police discover the shop, the shopkeeper and the coolie woman. The witness when questioned speaks to the two facts disclosed by the accused. There is therefore independent proof of the truth of the information given by the accused. What more than this is forthcoming in the cases in which material objects such as stolen properties or implements of crime, are found? The actual finding of such things in the place where the accused says they will be found proves no more than that the accused knew where they were. He may say for instance that he had hidden stolen property in a straw-stack. The stack is searched and the property is found. That however is not in any sense proof that it was hidden thereby the accused. The discovery certainly corroborates the accused's statement to some extent, and ordinarily in such a case no one would have any difficulty in believing that the accused had in fact hidden the property there himself. All that I am now concerned to point out is that the mere finding of the property does not in any way by itself corroborate the accused's story of how it got to the place where it is. This will appear in a moment if we consider a case in which an accused person gives information which incriminates another. It will not be far-fetched to suppose, for instance, a case in which two men have been jointly concerned in a theft. One of them is arrested and he says: 'My confederate has buried some of the stolen property in such a place.' The place is searched and the property found. Who will consider the finding of the property as any corroboration of the accused's statement that it was put there by the other man? The Magistrate or Judge is far more likely to draw the inference that the accused must have put it there himself. Without discussing this matter at greater length it is in my opinion sufficiently clear that material objects have not in themselves any greater probative value than any other facts.
28. Having thus found that all the other conditions required by Section 27 are present, I proceed to discuss the only question that remains, which is: Do these statements, made by the accused, relate distinctly to the facts discovered in consequence of the, information given by him? This part of Section 27, like all the other parts of it, has been the subject of interpretation in many decided cases. I do not think anything is to be gained by an examination of those cases, for a very simple reason. So far as I am able to understand, the glosses on these words, and the interpretations of them to be found in the decided cases are far less simple and intelligible than the words themselves. It is a common place of the schools that what is obscure cannot profitably be explained by what is still more obscure. I will venture to say that the legislature has used the simplest words possible, words which are not susceptible of explanation in more intelligible terms. Our task is merely to decide whether these words apply to the statements laid before us by the learned trial Judge.
29. Of the eight items with which we have to deal, only one was brought out by the prosecution in the examination-in-chief of P.W. No. 10. I have referred to this already. It is the passage in which P.W. No. 10 says. '... the accused pointed out the shop, saying that it was in that shop that he purchased the mattress.' This of course relates distinctly to the fact of the purchase of the mattress by the accused, and it is clearly admissible under Section 27. One item, the 7th in the order of the learned trial Judge, is an answer given by the coolie woman to a question put by the Court. That woman, (P.W. No. 11) says: 'When I went there the accused said: 'It was this woman that carried the article.' This statement undoubtedly relates distinctly to the fact that the accused engaged that woman to carry the mattress to the house in which he was living. That also is admissible under Section 27. All the other items were brought out in the cross-examination, by the learned Advocate for the defence of P.W. No. 10, P.W. No. 11 and P.W. No. 42.
30. No one suggests that statements which would be inadmissible if offered in examination-in-chief for the prosecution can become admissible merely because they were made in answer to questions put in cross-examination. It is, however, a fair presumption that the questions put in cross-examination, especially when they are put by a learned Advocate, described by the learned trial Judge as a gentleman of very great experience, will not be quite irrelevant, or unrelated to the matters in issue. In the present case that presumption is borne out by the facts. The questions were very relevant and had a very near relation to the facts. Items Nos. 2, 3, 4 and 5 appear in the cross-examination of P.W. No. 10. They are as follows:
The accused himself pointed out the shop, saying that it was at this shop that he purchased, adding: 'I paid an advance of annas 8 and I subsequently paid Rs. 2-8-0.' The accused looking at me said: 'I have purchased from him on the 12th a coir mattress.
31. 'I was the accused that was looking at me and asking me: 'I purchased from you, is it not, on the 12th a coir mattress? Thereupon the accused said: 'I purchased it of you for Rs. 3; I paid an advance of eight annas and I sent the balance of Rs. 2-8-0 through the coolie woman.'' The first and fourth of these statements describe the terms of the purchase, and I do not understand how it can fairly be contended that the terms of a purchase do not distinctly relate to the fact of the purchase. The second and third of these four statements are mere repetition of the statement made in the chief examination of the same witness, with the addition of the date of purchase and of the person who sold the mattress. These additions also distinctly relate to the fact of purchase, unless it can be held that the identity of the vendor and the date of sale are matters which do not relate to the fact of a sale.
32. Items Nos. 6 and 7 occur in the deposition of P.W. No. 11. I have already dealt with item No. 7. Item No. 6 is P.W. No. 11's answer to the question, 'When you saw this accused on that day did you remember his features, when the Police asked you about him from what you saw him on that day?' The reply was, 'The accused himself mentioned me and said that it was a woman wearing a coral necklace.' When the fact discovered in consequence of the information received from the accused is the fact that he engaged a certain woman to carry the mattress to his house, I fail to see how it can be argued that the identity of the woman is not a matter distinctly related to the fact. The statement of the accused that P.W. No. 11 was the woman, and the addition of the detail that she was wearing a coral necklace, are clearly admissible under Section 27.
33. The eighth and last item of evidence with which we have to deal is the answer given by the Police Inspector to a question put to him in the course of a cross-examination intended apparently to elicit whether it was really true that the woman Thayammal, (P.W. No. 11) was pointed out to the Police by the accused. The learned Advocate first asked the witness: 'And did you see the woman Thayammal when you went there?' The reply was: 'Absolutely not.' Then the Advocate asked: 'When did she turn up there'? and the Inspector replied: 'It is only after the accused pointed out Muhammad Kassim and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that that was the coolie who carried his mattress.' This was precisely the information given by the accused which led directly to the discovery of the fact that he had engaged that woman to carry the mattress to his house and proof of it is certainly admissible under Section 27. For these reasons, I agree with my learned brother Cornish, J. that none of the evidence referred to in the order of the learned trial Judge was in admissible.
34. We heard Mr. T.R.V. on the question whether, assuming for the sake of the argument that all or any of these items of evidence were inadmissible, the verdict of the jury could or should be sustained. On this question the learned Advocate developed at great length what seemed to me to be a very remarkable argument. He discussed the whole case in three aspects, (a) motive, (b) the events which according to him must have occurred in the house in Peddu Naicken Street on the night of January 11, and (c) the evidence regarding the occurrence at Egmore Railway Station on the night of January 12. He invited us to say that the case against the accused, considered in all these three aspects, was extremely weak, and that the jury would certainly, or at any rate probably, not have convicted the accused, if they had not been obsessed by this matter of the accused buying the mattress at the shop of P.W. No. 10, and having it carried by P.W. No. 11 to the house in Peddu Naicken Street. According to the learned Advocate, this was the cardinal fact in the whole case, without which the prosecution would have failed to satisfy the jury of the guilt of the accused. He went so far as to say that this fact was offered to the jury as the fact which would solve all the doubts and difficulties they might entertain with regard to the whole of the rest of the case. The jury were invited, the learned Advocate contends, to found their whole decision on that point.
35. I have said that this seemed to me to be a very remarkable argument, and my reason for saying so is that the learned trial Judge's charge to the jury contains no foundation for it. It is quite incorrect to say that the learned trial Judge offered this fact to the jury as the universal solvent of all their difficulties. Nowhere has the learned Judge invited the jury to base their decision on the fact that the accused bought the mattress and had it taken to his house. Still less, if that were possible, can it be correctly stated that the learned Judge laid any particular stress on the point that these facts were discovered in consequence of information given by the accused. The learned Judge (sic) with this matter in two places only, so far as I have been able to see. In the part of his charge which begins in the middle of p. 260 of the printed record, the learned Judge describes the evidence given by the mattress-seller and the coolie woman and on p. 261 he goes on to say that if the jury:
believe the evidence of the mattress seller and the coolie woman, it is quite clear that the accused purchased a coir mattress on the 12th.
36. He then refers to the evidence that the accused pointed out to the Police:
This is the shop; that is the man and this is the coolie woman who carried the mattress.
37. Immediately afterwards the learned Judge reminds the jury that the accused denied all this, and I can find nothing in the charge to indicate that the learned Judge invited the jury to believe the evidence of P.W. No. 10 and P.W. No. 11, because the accused was alleged to have pointed them out or because the accused was said to have made any statements about them. The only other passage in which the learned trial Judge referred to this matter is at the top of p. 268 of the record, where he described the mattress as 'the tell-tale coir mattress.' There again he made no reference to what the accused was said to have revealed about the mattress, but merely advised the jury that the mattress was a very strong piece of evidence in the case, because if they believed the evidence, it connected the accused with the parcel, and so with the woman Seethammal whose body was found in the parcel.
38. The conclusion, therefore, is that this fast of the purchase of the mattress was not put before the jury as the one solid fact amongst a large number of doubtful matters. And even if it had been otherwise, the proof of the purchase did not depend on what the accused said, but far more on what was said by the witnesses. This circumstance differentiates this case from the cases which were cited to us by Mr. T.R.V. in support of the proposition that when come evidence is found to have been wrongly admitted it is never safe to assume that the decision of the jury would have been the same if that evidence had been excluded. All those cases so far as I could gather were cases in which evidence was admitted to prove facts which were irrelevant. Here there is no question of the admission of irrelevant facts at the very most it might be said that some of the evidence let in to prove a very relevant fact had been wrongly admitted, But there was plenty of admissible evidence to prove the same fact and so far as can be gathered from the charge to the jury, it was upon that evidence that they were advised to found their decision. In these circumstances I am satisfied that independently of the evidence now in question there was sufficient evidence to justify the decision and that consequently Section 17, Evidence Act, would forbid us to interfere. I would go further, in view of the dicta in certain reported cases and would say that in my judgment the omission of these items of evidence could not have made any difference to the verdict. The conviction and sentence must, therefore, be confirmed.
Lakshamana Rao, J.
39. The accused was tried at the Third Criminal Sessions, on an indictment under Section 302, Indian Penal Code, for intentionally causing the death of one Seethammal by manual strangulation on the night of January II, 1934, at No. 24, Peddu Naicken Street, George Town, Madras, and the jury found him guilty of the offence by a majority of 6 to 3. The trial Judge my Lord the Chief Justice agreed with the majority verdict and the accused was sentenced to death. He moved the Advocate-General for a certificate under Clause 26, Letters Patent, which empowers him to certify that a point or points of law which has or have been decided by the Court should be further considered and the Crown Prosecutor opposed the application. The Advocate-General gave a certificate regarding the reception in evidence of certain statements made by the accused while in the custody of the Police, to which exception was not taken at the trial and the omission of the trial Judge to direct the attention of the jury to the question of the continued possession till her death by the deceased of the silver articles pledged by the accused subsequent to the murder and the accused applied for a review of the case under Clause 26, Letters Patent. The Crown Prosecutor intimated his intention to question the interpretation of the words 'decision on a point of law decided by the trial Judge' in the Full Bench decision in C.K. Narayana Iyer v. Emperor (sic) M.W.N. 249 and take a preliminary objection to the competency of the application on the ground that there was no decision on a point of law by the trial Judge requiring further consideration and a Full Bench of seven Judges was formed to consider the objection. The Full Bench upheld the preliminary objection by a majority of 5 to 2 and it further held that the question of continued possession of the silver articles till her death by the deceased did not arise in the case in view of the plea of the accused that they belonged to him and not the deceased. The application for review was, therefore, dismissed and since the question of the admissibility of the statements made by the accused while in the custody of the Police and the effect of their admission, if inadmissible, could not be considered therein, the learned Chief Justice has in the exercise of his powers under Clause 25, Letters Patent, reserved it for the opinion of the High Court.
40. The corpse of Seethammal was despatched by train from Egmore Railway Station to Karunguzhi on the night of January 12, 1934, packed in among other things M.O. No. 29 the coir mattress and the statements in question relate to the purchase of the mattress by the accused from P.W. No. 10's shop, on January 12, and its carriage by P.W. No. 11, the coolie woman to No. 24, Peddu Naicken Street. They were made while in the custody of P.W. No. 42, the Police Officer, and the facts necessary for the determination of the questions which arise on this reference may now be stated. The murdered woman was the wife of P.W. No. 1 and she left his house on August 4, 1933, taking with her all the valuables including jewels and silver articles some of which are specified in Ex. A, the report of the husband to the Police. She was living with the accused thereafter at different places in Madras, and the evidence of P.W. Nos. 2 and 3, the lessee and sub-tenant of a portion of the downstairs of No. 24, Peddu Naicken Street shows that from December 23, 1933, they were living in the first floor of that house where the woman is alleged to have been murdered on the night of January 11, 1934, for the sake of her properly. She was last seen in the house by P.W. Nos. 2 and 3 about 6-30 and 7 P.M. respectively on the day of the occurrence and according to P.W. No. 2, she was wearing among other things M. Os. 14. and 15 the pair of thodus set with rubies and the diamond besari.
41. The accused, too, was in the house and she was not seen alive thereafter. Prosecution witness No. 3 noticed the accused going out of the house about 4 A.M. next morning when she got up to relieve herself and P.W. No. 6, the milk supplier of the accused arrived with milk about 6 A.M. The door at the top of the stairs leading to the first floor was hasped from outside, and P.W. No. 6 returned thinking that the occupants had gone out. She mentioned it to P.W. No. 2 who was cleaning his teeth outside, the accused returned to the house about an hour later. Prosecution Witness No. 2 questioned him about what P.W. No. 6 had reported and the accused stated that he had taken Seethammal to his sister's house at Saidapet to assist his sister who was then in labour. Prosecution Witness No. 2 who is a coal contractor left the house soon after, and from the evidence of P.W. Nos. 10 and 11 the shop keeper and coolie woman who were pointed out by the accused it appears that the accused purchased M.O. No. 29, the coir mattress from P.W. No. 10's shop about 10 A.M. on January 12, and had it carried to No. 24, Peddu Naicken Street by P.W. No. 11, the coolie woman. He was on the first floor when P.W. No. 2, returned for his meal about 12 o'clock and the witness left again about an hour later. Prosecution witness No. 3 also left about 3 P.M., and it is in evidence that the other tenant was absent throughout the day. The accused was in the house when P.W. No. 2, returned in the evening and he was there till P.W. No. 2 left for the temple about 6-30 P.M. He was not present when P.W. No 3, returned about 8 P.M. and the parcel containing the corpse of Seethammal was despatched from the Egmore Railway Station about 9-15 P.M. by a person who was subsequently identified as the accused by P.W. Nos. 25 and 26, the coolie porter an assistant parcel clerk.
42. The accused did not return to his residence that night and the evidence of P.W. No. 12 shows that the accused came to his master's godown about 11 A.M. He slept there that night and went to No. 24, Peddu Naicken Street next morning taking P.W. No. 12 with him. The jutka of P.W. No 2 was fetched and the belongings of the accused including two trunks and wooden boxes were loaded into it. Prosecution witness No. 2, inquired whether they were vacating and the accused replied that he was as he had been appointed village Munsif of Salur. The things were removed to the godown, and the accused stayed there for three days. He had a tuft behind and crop in front till he left his residence and he got the tuft remove by P.W. No. 3 the barber on the 14th Prosecution witness No. 2 questioned him about it when he went to No. 24, Peddu Naicken Street on the 15th to pay up the amount due to the milk seller, and he was told that the head was cropped as it was more convenient. The parcel was not claimed at Karunguzhi and information was sent to the Police on January 14, as it emitted a foul smell. It was opened that evening in the presence of P.W. No. 32, the Sub-Inspector and the Sub-Magistrate, and the corpse of Seeteammal which had been folded three-fold was found inside.
43. Inquest was held next morning and the post mortem examination disclosed that the woman was killed by strangulation. Information was sent to the City Police end efforts to trace the sender of the parcel resulted in the discovery of P.W. Nos. 25 and 26, the porter and assistant parcel clerk. They gave some identification marks besides expressing their ability to identify the person and vigorous attempts were made to trace the sender. The accused removed to P.W. No. 20's house on the 17th and though it was taken up for a month and the rent paid in advance, the accused left it on the night of the 18th leaving behind some of his things including his tuft. He arrived at P.W. No. 18's house in the rickshaw about 5 A.M. on the 20th with a trunk and bedding, and asked P.W. No. 18 to let him a room. Prosecution witness No. 18 replied that he had no rooms to let and the accused who had high fever stated that he came there as he could not find his relations. He was allowed to rest himself as desired, and he left the house about 10 A.M. He returned in the evening saying that be could not find his relations and P.W. No. 18 permitted him to sleep in the house that night. He left about 12 o'clock on the 21st leaving his things behind, and the Police arrived about 2 o'clock. The witness told them that the man of the description wanted by them had left earlier, and the accused returned between 2 and 3 P.M. on January 23. He was arrested soon after by P.W. No. 42, the Inspector, and Ex. KK, the order of the Sub-Collector dated December 22, 1933, intimating that he would be dismissed from service if evidence was not produced before January 31, 1934, that he had cleared his debts was found in his trunk. M.O. Nos. 6, 7, 8, 14, 15 and 16, the jewels and silver articles pledged by the accused between January 14, 1934, and January 20, 1934, and identified to be those of the deceased, were recovered on his information from P. Ws. Nos. 8 and 14, and he was taken in a car to P.W. No. 10's shop. He pointed out P. Ws. Nos. 10 and 11, who confirmed his information, and M.O. No. 29 the mattress was identified by them subsequently.
44. It was at P.W. No. 10's shop that the statements in question which are set out below were made and they came on record in the following manner. Prosecution witness No. 10 was questioned in examination in chief whether the Police came to him in connection with the case, and he stated 'Prosecution witness No. 42 came with the accused and the accused pointed out the shop saying that it was in that shop that he purchased the mattress.' It was elicited in cross-examination that he had sold some other articles on January 12, and in reply to a further question whether he remembered the purchasers, P.W. No. 10 stated 'it is because 10 or 11 days after he made the purchase, he came to the shop and himself pointed out the shop saying that it was at this shop that he purchased, adding, 'I paid an advance of eight annas and I subsequently paid Rs. 2-8-0' that I remember him.' He was asked next whether the accused stated in his presence that it was the shop in which he purchased, and the witness stated 'the car stopped in front of my shop at about 4 P.M. They all got down and entered the shop, and as soon as they entered the accused looking at me said: T purchased from him on the 12th a coir mattress.' He was then asked whether P.W. No. 42 stated anything and the answer was: 'It was the accused that was looking at me and asking me 'I purchased from you, is it not, on the 12th, a coir mattress.''
45. The cross-examination was pursued and the witness stated 'the Police then asked me to take the account. I showed the account. When I looked into the account, I found that on the 12th there was a sale of coir mattress and two pillows for Rs. 3-12-0 and another coir mattress for Rs. 3 and I said, therefore, I did not know whether it was the one or the other, that I sold the accused. Thereupon the accused said 'I purchased it of you for Rs. 3. I paid an advance of eight annas and I sent the balance of Rs. 2-8-0 through coolie woman.'' Prosecution witness No. 11 was asked in cross-examination, whether she remembered the features of the accused from what she saw of him on the date of purchase, and she stated: 'The accused himself mentioned me and said that it was a woman wearing a coral necklace.' Then in answer to question by Court, she stated: 'When I went there the accused said: 'it was this woman that carried the article'' and P.W. No. 42 deposed in examination-in-chief that he discovered P.W. No. 11 on being pointed out by the accused. He was cross-examined about it and he stated 'it was only after the accused pointed out P.W. No. 10 and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that that was the coolie who carried the mattress.'
46. The purchase of the coir mattress in which the corpse was packed and its carriage to the alleged scene of crime through the coolie woman on January 12, suggest the inference that the accused committed the crime, and the contention that the statements in question do not amount to a confession is untenable. They were made while in the custody of the Police Officer and their admissibility depends upon the correct interpretation of Section 2.7, Evidence Act, which is in these terms:
Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a Police Officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved,
47. The discovery of a fact as the result of the information is a condition precedent to the reception in evidence of the information or any portion thereof and as pointed out in the Full Bench decision in Sukhan v. Emperor 10 Lah. 283 : 115 Ind. Cas. 6 : A.I.R. 1929 Lah. 344 : 30 Cri. L.J. 414 : 30 P.L.R. 197 : 11 Lah. L.J. 159 though the expression 'fact' as defined by Section 3, Evidence Act, includes not only the physical fact which can be perceived by the sense, but also the psychological fact or mental condition of which any person is conscious, it is in the former sense that the word is used in Section 27. The fact discovered should, therefore, be a material and not mental fact and as observed by the learned authors Woodroffe and Ameer Ali in their commentary on the Evidence Act, 'the word 'discovery' may either mean the purely mental act of learning something which was not known before to a person, as the mere mental act of becoming aware of something after hearing it stated or the physical act of finding upon search or inquiry something or material fact the existence or the exact locality of which was unknown till then. It is in the latter sense that the word is used in this section, that is, in the sense of a finding upon a search or inquiry of articles connected with the crime or other material fact, the reason being that it is only this kind of discovery which proves that the information in consequence of which the discovery was made is true and not fabricated.'
48. The fact discovered may thus be the stolen property, the instrument of the crime, the corpse of the person murdered or any other material thing, or a material thing in relation to the place or the locality where it is found, and it should confirm the information though its connection with the crime and identification, are always provable aliunde. The discovery of a witness to the crime or act of the accused, on his information, would not be a discovery of a fact within the meaning of the section: vide Palaniandi Velan v. Emperor (1934) M.W.N.601 and the confirmation or otherwise of the statement of the accused by the witness discovered cannot make any difference. Further Section 162, Criminal Procedure Code, prohibits 'the use of any statement by the witness to the Investigation Officer, and the discovery should be some concrete fact. The karas being found in the possession of the pledgee in Sukhan v. Emperor 10 Lah. 283 : 115 Ind. Cas. 6 : A.I.R. 1929 Lah. 344 : 30 Cri. L.J. 414 : 30 P.L.R. 197 : 11 Lah. L.J. 159 would be a fact discovered in this sense, and so would the finding of the person kidnapped and wrongfully confined at the place mentioned by the accused in the illustration suggested by the Crown Prosecutor. There would be no discovery in these cases if the karas and person kidnapped were not found and it is well-settled that even when a, thing is discovered the statement of a prisoner as to how he came by it cannot be proved. The statements in this case are, of this nature and they were verified by P.W. No. 42, the Police Officer, by examining the witnesses pointed out by the accused. He cannot be said to have discovered any fact within the meaning of Section 27, Evidence Act, and in my opinion the statements in question are not admissible in evidence.
49. The case has, therefore, to be reviewed on the evidence properly admissible, and as pointed out in Emperor v. Panchu Das 47 C 671 : 58 Ind. Cas. 929 : A.I.R. 1920 Cal. 500 : 31 C.L.J. 402 : 24 C.W.N. 501 : 21 Cri. L.J. 849 it is incumbent on this Court to investigate whether independently of the evidence improperly admitted there is sufficient evidence to justify the conviction. The evidence of P. Ws. Nos. 10 and 11 regarding the sale of M.O. No. 29, the coir mattress, to the accused and its carriage to No. 24, Peddu Naicken Street, is admissible, though the statements of the accused relating thereto are not and the case of the accused was that he did not make those statements. The statements were not proved aliunde and it was pointed out to the jury that proof of the purchase and carriage of the mattress depended upon the credibility of P. Ws. Nos. 10 and 11 who speak to it. The bringing on record of the statements in question through these witnesses could not under the circumstances have made any difference nor would it be proper to reject their evidence because they recollected the incident and feature of the accused only after being reminded by him. The shopkeeper was not cross-examined regarding the identity of the mattress and the disinterested evidence of P. Ws. Nos. 2 and 3 shows that the accused and the deceased were living together at No. 24, Peddu Naicken Street from December 23, 1933. They swear to the presence of the deceased in the house at about 7 P.M., on January 11, 1934, and undue importance cannot be attached to the opinion of P.W. No. 38, the Medical Officer, that death must had occurred about five or six days prior to January 15, 1934, the date of the post mortem examination.
50. The period of death cannot be ascertained with accuracy from the progress of putrefaction, and as pointed out in Taylor's Medical Jurisprudence, Vol. I, p. 294, warm his usually retained when person dies from asphysia. Putrefaction would in such cases be more rapid and the contents of the stomach indicate that the woman was strangulated some hours after her night meal. The tenants of the ground floor and neigh ours must have been asleep at the time nor was it suggested that she could have raised any cry. The packing should have commenced sometime later and it did not require an expert to stitch the corpse in gunny bags and other materials. The suggested impossibility of removing the package along the staircase was not emphasized at the trial and the dimension of the package as appearing from the evidence is 2 1/2 feet by 2 feet by 20 inches. It is in evidence that trunks and dealwood boxes were removed along the staircase subsequently, and P. Ws. Nos. 25 and 26 swear that the accused was the sender of the parcel. They identified him at the identification parade on January 24, and the accused had a crop in front prior to the removal of the tuft on January 11. Exhibit KK shows that the accused was hard pressed and the pledge of M, Os. Nos. 6, 7, 8, 14, 15 and 16, the articles of the deceased by him between January 14 and 20, supplies the motive. His subsequent conduct including his false explanation to P.W. No. 2 also points to his guilt and independently of the statements in question the jurors who found the accused guilty would have come to the same conclusion. There is, therefore, no ground for interference and the conviction and sentence will stand.