In Re: Gangavva and Another

Horwill, J.—The three appellants were charged in the Court of the Sessions Judge of Bellary u/s 302 of the Indian Penal Code with the

murder of a boy aged 6 years, named Ramappa, by cutting his throat. The learned Sessions Judge convicted the first and second appellants of the

offence with which they were charged and sentenced them to death. He however accepted the explanation by the third appellant in his confessional

statement that he took no part in the murder and was not aware that it was going to be committed, and so found him guilty only u/s 201 of the

Indian Penal Code, because he had buried the knife with which the murder was committed. He was sentenced to 5 years rigorous imprisonment.

As the offence was committed in the house of P.W. 4 during the absence of himself and his wife and there were no persons in the house other

than the murdered boy and his little sister aged 3, there are no actual eye witnesses of the murder. But there is important circumstantial evidence of

persons who saw the three appellants enter the house of P.W. 4 and who saw them leave again. P.W. 5 was working in his rick yard only 100

yards away from the house of P.W. 4; and he saw the three appellants both enter the house and leave it. P.W. 6 did not actually see the accused

leaving P.W. 4''s house, but he saw them at 2 or 3 yards from the house as they were emerging from the back-yard. P.W. 7 saw the accused

going from their village towards the village of P.W. 4 and asked them where they were going. The third appellant replied that he was going to the

house of P.W. 4 to get the two bags of cholam for the first appellant. P. Ws. 8 and 9 were grazing bulls and saw the three appellants going in the

direction of P.W. 4''s village. They, too, asked the appellants where they were going and why, and the third appellant gave the same answer to

them as he had given to P.W. 7. P.W. 4, the father of the murdered boy, was not absent for very long from his house. He left late in the afternoon

and came back just at dusk; and it was during his short absence that the three appellants entered the house of P.W. 4 and it was during that time

that the boy Ramappa was murdered. It is a reasonable conclusion to draw from the circumstances that the three appellants committed the murder.

In the Courts below they all denied that they entered the house of P.W. 4; but we see no reason at all for not accepting the disinterested evidence

of these five witnesses.

The learned Sessions Judge took into account against appellants 1 and 2, the confessional statement of the third appellant, (Ex. H) in which he

said that thef three of them went from their village along, a certain foot-path to the house od P.W. 4, removed the door of the rick yard, and found

inside the deceased boy an his little sister playing in the yard. The boy was decoyed into the kitchen by the offer of a two-anna piece and while the

third appellant was standing in the padasalai in front of the kitchen door, the first appellant held the little boy over the oven while the second

appellant cut his throat with the knife which she had, allowing the blood to flow into the ashes of the oven. He exclaimed "" You have ruined my

maternal uncle''s house."" The first and second appellants, who are women, brought out the weapon used in the commission of the crime wrapped

in a piece of blue cloth. They handed over the knife and the cloth to him asking him to conceal it, which he did. As a result of this confession made

to the police, the police and panchayatdars proceeded to the spot indicated by the third appellant, from which he produced the knife wrapped in

the cloth.

It has been argued that the above statement is not a confession at all, because the third appellant did not implicate himself in any way; but we

have no doubt that it is a confession of an offence punishable u/s 201, Indian Penal Code, for he admittedly buried the knife in order to conceal

evidence of the murder. The more important question, however, is whether this statement, which amounts to a confession of an offence punishable

u/s 201, Indian Penal Code, can be used against the first and second appellants in the charge u/s 302, Indian Penal Code. The learned Public

Prosecutor argues that it is admissible in evidence; and his line of reasoning is this : when a person is charged with a serious offence, he is also

charged by implication with every offence comprising any combination of circumstances which may form the constituents of the major offence; so

that when a person is tried for murder, and part of the evidence of the murder is the concealment of the weapon with which the murder was

committed, then the person charged with the murder is also charged by implication with an offence punishable u/s 201, Indian Penal Code : the

confession of this minor offence by the third appellant could therefore be used against the other appellants, because they were charged with the

minor offence also; if it was admissible against the other appellants, then it can be taken into account against them for all purposes, even though

they might be charged with the major offence and convicted of it. In In re Manicka Padayachi1, the learned Judges had to consider whether a

confession of an offence that was punishable u/s 328, Indian Penal Code, could be used against the other accused to support the evidence that an

offence had been committed by him punishable u/s 328, Indian Penal Code, when the charge preferred against him was u/s 302, Indian Penal

Code. The learned Judges differed; and so the matter was referred to a third Judge, Oldfield, J. He pointed out that the person who made the

confession had been convicted only u/s 328, Indian Penal Code and that that was the section under which the other accused, if the confession

were accepted, would also be convicted. That case is therefore not on all fours with the present case; but the learned Public Prosecutor relies on

certain obiter dicta to be found in the judgment. The learned Judge said:

The correct view is clearly correct view is clearly that persons under trial for a major offence are also being charged with and tried for any minor

offence or offences, constituted by the particular ingredients of the major offence which may be proved.

If that were so, then Section 237 of the Criminal Procedure Code would seem to be redundant; for a person irrespective of Section 237 of the

Criminal Procedure Code could then be convicted of a minor offence even though not specifically charged with it. There are two cases to which

we have been referred which deal directly with the point raised here. They are In Re: Periyaswami Moopan and Another, and Syed Hussam Sahib

v. Emperor (1937) M.W.N. 249. In the former case, Reilly, J., said :

....the confession must be of the kind intended by the Legislature when enacting Section 30(of the Evidence Act). What kind of confession is

intended ? The words of the section are '' when more persons than one are being tried jointly for the same offence and a confession made by one

of such, persons affecting himself and some other of such persons is proved.'' In my opinion ''confession'' in that collocation of words cannot

reasonably be interpreted to mean a confession of any offence in the world, nor even of any minor offence included in the offence for which the

accused persons are being tried, nor of any offence connected with that offence, nor of any other offence which may be disclosed by the evidence,

but only of the very offence for which they are being tried, '' offence always including under the explanation to the section abetments and attempts .

. . . In my. opinion we must read the word '' confession '' as if it were followed immediately by the words of that offence''....

The learned Judges there refused to accept a confession disclosing an offence u/s 201 of the Indian Penal Code against a co-accused tried and

convicted of murder. In Syed Hussain Sahib v. Emperor (1937) M.W.N. 249, the same question had to be considered, namely, how far a

confession of an offence u/s 201 of the Indian Penal Code could be used against a co-accused charged with murder. The learned Chief Justice

said :

In the first part of Ex. F (the confession in question) he (the person who made the confession) accused his wife of having committed the murder

and would have it that he was away at the time. This statement cannot be taken into consideration so far as it affects the 2nd appellant on the

charge of murder. He does not include himself in the accusation, and, therefore, u/s 30 of the Evidence Act, this statement cannot be admitted

against the wife. Ex. F, can, however, be taken into consideration u/s 30 as against both the appellants on the charge under section. 201.

The principle laid down in these cases must prevail over the dictum of Oldfield, J.

Although we are holding that in view of the statement of law laid down in In re Periyaswami Moopan2 and Syed Hussain Sahib v. Emperor

(1937) M.W.N. 249, the confession of the third appellant cannot be taken into account against the other appellants with regard to the charge u/s

302, we are nevertheless satisfied from the evidence of P. Ws. 4--7, referred to above that the first and second appellants are guilty of the offence

with which they were charged. The sentence imposed on them is undoubtedly the proper one in the absence of any extenuating circumstances. The

murder seems to have been coldly and brutally planned.

The third appellant has preferred a separate appeal. Against him there is the same evidence as against the other two appellants; but in addition to

the evidence of P. Ws. 5 to 9, there is the evidence of his own confession. The learned Judge was prepared to accept the statement contained in

the confession at its face value. We think that the appellant was extremely fortunate in the learned Judge''s taking this view. He was the only male in

the party and was presumably taken in order to play the man''s part. It seems incredible that the women would have taken with them a person who

might well have been a witness against them unless it was intended that he would participate in the murder. The circumstance that the knife was

traced back to him is a further indication that in all probability he himself played the principal part in the murder.

Taking the most lenient view of the evidence against him, the appellant was guilty of an offence punishable u/s 201, Indian Penal Code. On his

own admission, he stood by and allowed this little boy of six years of age to be murdered before his eyes, without attempting to intervene; and so

the sentence of five years rigorous imprisonment is certainly not excessive.

The convictions and sentences are confirmed and the appeals dismissed.