In Re: Avadai Ammal

Somasundaram, J.—Accused 3 in S.C. No. 209 of 1954 on the file of the Sessions Judge, Madurai, is the appellant herein. She was tried

along with four others for offences under S. 314, S. 314 read with S. 109, I.P.C., and S. 201, I.P.C. The charge against the appellant was one

under S. 314. The other accused were all acquitted and the appellant alone has been convicted of the offence under S. 314 and sentenced to three

years'' rigorous imprisonment. The appellant is said to have caused miscarriage to an unmarried girl called Kanakabishegam, the daughter of P.W.

1 in the case. She was aged about 16 and was unmarried. Both she and her mother, P.W. 1, were working in the hotel of the first accused.

Accused 2 is the son of accused 1 who was the proprietor of the hotel. The suggestion is that she became pregnant on account of accused 2, on

account of which there was a quarrel between the mother and the daughter. Evidently, accused 1 also was concerned about it, and it is suggested

that at the instance of accused 1, accused 3 was engaged to cause miscarriage to this unfortunate girl. On the morning of 15th August 1954, P.W.

accused 3 and the deceased went to Tirumangalam, and there, they took shelter in a hut. Accused 3 is said to have come with some drugs. The

evidence of P. W. 1 is that accused 3 inserted her hand inside the vagina of the deceased and was twisting her hand as if she was turning the

uterus. She described how the deceased was lying on the legs of accused 3 with her hands on accused 3''s neck, P.W. 1 was advised not to see

the operations; and after what accused 3 did to the deceased, the deceased was found restless. The deceased had told her mother that accused 3

had given her some medicine stuffed in a plantain fruit and had also pinched her uterus. The deceased vomited thrice and expired that night. There

is also the further evidence that accused 3 pressed the mouth of P.W. 1 and prevented her from making a noise as that would bring the neighbours

to the hut. Accused 3 then went out and returned, accompanied by accused 4 and 5, and they are said to have carried the corpse and buried it at

some other place. P.W. 1 came and informed her sister and mother of what had happened. Thereafter, presumably at the instance of P.W. 6, a

complaint was given to the police at Tiruparankundram. Then the body was exhumed in the presence of the Sub Magistrate, P.W. 7 and the

doctor. P.W. 8 conducted autopsy over it. After investigation, the five accused, as already stated, including the proprietor of the hotel, accused 1,

and his son, accused 2, and accused 4 and 5 who are said to have assisted accused 3 to bury the body were charge"" sheeted. At the time of the

exhumation accused 3 is said to have been present and made a confessional statement, Ex. P. 6, to the Magistrate, The evidence against the

appellant consists of the testimony given by P.W. 1, the mother of the deceased, P.W. 2, a witness who saw P.W. 1 her daughter, accused 3 and

4 coming to the hut while he was keeping watch over his crops, and also of the evidence given by P.W. 4 who spoke to what the deceased told

him, namely, that they were going with accused 3 to effect miscarriage. The learned Sessions Judge also relied on the confessional statement made

by accused 3 in support of the evidence of P.W. 1. So far as accused 1 is concerned, the evidence against him consists only in the testimony given

by P.W. 1 and the confessional statement of accused 3 to the Magistrate, which is Ex. P. 6. As this was a confession of a co-accused and the

evidence of P.W. 1 is that of the accomplice the learned Sessions Judge found that there was no sufficient corroboration so far as accused 1 was

concerned, and therefore acquitted him. What applied to accused 1 would apply to accused 2, 4 and 5 also. We are not however concerned here

with the acquittal of the other accused. So far as the appellant is concerned, one of the questions to be considered, is whether the confession of

accused 3 may be made use of against her. In Nazir Ahmed v. King Emperor A.L.R. 1986 P.C 253 = 44 L.W. 583, their Lordships of the Privy

Council said:

Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are

necessarily forbidden. No doubt, the Magistrate acting under Ss. 164 and 364 is not acting as a Court, yet he is a judicial officer, and both as a

matter of construction and of good sense, the rule above applies to S. 164, Ss. 164 and 864 must be looked at and construed together and it

would be unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the

sections themselves.

Where therefore the Magistrate has neither acted nor purported to act under S. 134 or S. 364, and nothing has been tendered in evidence as

recorded or purporting to be recorded under S. 164 or S. 364, oral evidence of the Magistrate is not admissible. S. 164 is a section conferring

powers on Magistrate and delimiting them. If oral evidence be allowed in such a case all the precautions and safeguards laid down by Ss. 164 and

364 would be of such trifling value as to be almost idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it

was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without allowing or reading to the

accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of Magisterial

confessions would be so enlarged by this process that the provisions of S. 164 would almost inevitably be widely disregarded. The effect of Ss.

164 and 864 is clearly to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation, and to

render inadmissible any attempt to deal with them by allowing oral evidence.

These observations apply to all Magistrates, be they invested with power or not to record confessions. As pointed out by the Privy Council, the

range of Magisterial confessions would be enlarged if Magistrates who are not empowered to record confessions under S. 164 are allowed to give

oral evidence and that would be clearly circumventing S. 164, Crl.P.C. The learned Sessions Judge, acting on a decision of this Court in

Ramaswami Reddiar v. State 1952 M.W.N. Crl. 258, has held that as it was a confession recorded by the Magistrate not empowered to record,

the confession is admissible. This Bench decision, in my opinion, runs counter to the Privy Council decision referred to above. If the conviction

were to be sustained only on this confession, I would certainly have referred this matter to be placed before my Lord, the Chief Justice, expressing

my difference from this opinion, and for reconsideration of the Bench decision. But, apart from the fact that the judgment of the Privy Council

cannot be so lightly brushed aside, there is overwhelming evidence in the case on which the conviction could be sustained. So, disregarding this

confession, we have the evidence of P.W. 1, P.W. 2, P.W. 4 and the statement of the accused in the committal Court that she administered the

medicine. This evidence has got to be read along with the medical evidence given by P.W. 8. Assuming for a moment that P.W. 1 is an

accomplice, we have still got the statement of P.W. 2 who says that accused 3 accompanied P.W. 1 and the deceased who were living in the hut.

We have got the evidence P.W. 4 who speaks to the fact that the deceased told her mother that they were going with accused 3 to effect

miscarriage. This statement under the ruling of the Privy Council in Nainamuthu v. Emperor 1939 M.W.N. Crl. 172, is admissible, because it is a

statement made by the deceased that she was proceeding with a certain person for a certain purpose and after that, she died. The statement relates

to the circumstances of the transaction which resulted in the death of the deceased. Under the above ruling of the Privy Council this statement will

certainly be admissible. But, what is contended with regard to the statement is that this statement was not made by P.W. 4 to the Police Officer.

The learned Sessions Judge has nevertheless considered that this statement could be taken into consideration. I am in entire agreement with the

learned Sessions Judge that this statement, notwithstanding that it was not being made to the police officer under S. 162 can still be taken into

consideration for the simple reason that there was no reason alleged as to why P.W. 4 should utter this falsehood against the third accused. More

than that we have got also the statement of the deceased to P.W. 1 complaining that accused 3 had given her some medicine stuffed in a plantain

fruit and had also pinched her uterus. the statement of accused 3 that she did administer medicine for the purpose of regularising menstruation. The

fact, therefore, is established that accused 3 was with the deceased at the relevant moment and administered medicine to her. The only other

question is whether the tear of the uterus is due to her or not. The medical evidence given by P.W. 8 clearly establishes not only that the deceased

was pregnant, but that the death was due to shock and haemorrhage on account of the rupture (tear) of the uterus. The doctor says that it is quite

likely that in an attempt to produce abortion and get out the contents from the uterus, there could have been interference with the uterur either with

the aid of foreign body or by rough handling with fingers. His evidence therefore clearly establishes that there was rupture of the uterus and this

supports the deceased''s statement to P.W. 1 that accused 3 had pinched her uterus. The evidence, therefore, of P.W. 1 even assuming it to be

that of an accomplice, is corroborated by the above circumstances, and connect the third accused with the crime. In the circumstances, I should

hold that the guilt of accused 3 under S. 314 has been established beyond all doubt. As regards the question of sentence, the learned Sessions

Judge has taken the fact into consideration that the principal offenders accused 1 and 2 have got off and has therefore dealt with her leniently by

awarding a lesser sentence. However, I should think that a sentence of two years would meet the ends of justice. The conviction of accused 3 is

therefore confirmed and the sentence is reduced to two years.