In Re: Krishnan Naidu

Mack, J.—Appellant aged 19, the son of Rangappa Naicker, has been found guilty u/s 302, I.F.C., of the murder of a young woman

Chittliammal aged about 16 and sentenced to death.

The facts of this case are remarkable .The police originally laid a charge-sheet against the father Bangappa Naicker as A. 1 and the son, the

present appellant, as A. 2, it would appear, u/s 302 read with Section 34, I.P.C. The committing Magistrate on some unusual evidence in the case

framed a charge of murder only against the son, and a charge u/s 201, I.P.C., read with Section 511, I.P.C., i.e., for attempting to dispose of the

murdered corpse against the father. In the Sessions Court, the case was split up into two and the learned Sessions Judge has tried the appellant

separately on the charge of murder, it would appear, in view of the Full Bench decision of this Court, -- ''In re Narayana Ehatta'', I.L.B. (1949)

Mad. 220. The trial Court judgment makes no reference at all to the fact that the father had also been charge-sheeted and that the case was split

up in this manner. A perusal of it leaves one in doubt and speculation as to the position of the father, whose absence either from the witness-box or

the dock, on the evidence admitted in the case, is otherwise quite inexplicable. Mr. Netto of the Salem Bar, who appeared in the trial Court and

was present here to assist Mr. Ethiraj for the appellant, has clarified an obscure position. The learned Sessions Judge should, when he splits up

cases in this manner, make reference to it in his Judgment

The facts of this strange case according to the prosecution are these. The corpse of Chittliammal was found in the field of Rangappa Naicker,

according to the official plan about 300 yards from Kondireddipatti village, where he lived. She had been stabbed through the heart, the only fatal

injury on her. She also had six abrasions or contusions, 4 in the chest and abdominal region, one on the forehead and one on the right knee. They

are all simple injuries pointing to some struggle, which preceded the fatal stab injury 21/2"" deep in the chest, which pierced the heart.

Bangappa Naicker himself had arranged for the marriage of this girl to his nephew P. W. 3 a few years before the offence and constructed a

house for them to live in near his own. P. W. 3 left the village some time before this murder and Rangappa Naicker is said to have Kept

Chittiliammal as his concubine with whom his son also got infatuated & was having illicit intimacy. The only witness, who deposes to the existence

of this alleged amorous rivalry between the father and the son is rather strangely the Village Magistrate of Kondireddipatti Munuswami Naidu

(P.W. 4), who lived in another village Antheripatti about a mile from the scene of offence. The burden of the defence, which may be anticipated

here Is that false evidence has been given and concocted by this Village Magistrate, who was a family enemy.

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5-8. (Then His Lordship narrated the evidence given by the Village Magistrate and the other witnesses including P.W. 1 who said that he was told

by Rangappa, Naicker that the appellant stabbed the deceased).

Now the evidence that this witness was permitted to give at me sessions that and also the evidence of the Village Magistrate Rangappa Naicker

told him that his sons and stabbed Chittliammal is legally admissible in a that against the son himself without the lamer appearing as witness. It is

hearsay evidence of a dangerous charter and wholly and legally inadmissible. The learned Sessions Judge merely made a note of the objection

taken but allowed the evidence to go in. Had the father been on joint trial along with his son, the official complaint Ex. P.1 made by P.W. 1 to the

village magistrate and also the extraordinary request made by the father for his assistance in cremating the body, would have been legally

admissible. The result of the splitting up of this case has been that all that the father is alleged to have said fastening responsibility on the son is

totally inadmissible without his being examined as a witness himself. The learned Sessions Judge has based the conviction of the appellant mainly on

P.W. 2''s lower Court deposition Ex. P. 2. This is no doubt u/s 288, Cr. P. C. substantive evidence in case.

10-13. (His Lordship then discussed the evidence of P.Ws. 2, 3, 7 and 8 all of whom deposed in favour of the prosecution before the Sub

Magistrate and resiled in the Sessions Court.)

The wholesale resiling of these witnesses in the Sessions Court is an extraordinary feature of this case. It is capable of more than one

explanation, it may be due to their being tutored to give false testimony, in a false twist given to this case by the Village Magistrate or to their having

been gained over by Rangappa Naicker. There is a third reason which, we think, is more likely and that is that these witnesses after this case was

split up and a case of murder was concentrated only on the present appellant, decided to give it no support at all. We are not prepared to say that

they have deposed in the circumstances in all respects truly in the committing Court and falsely in the Sessions Court.

It is very unfortunate that the case as originally laid by the police was split up in this manner into two separate trials. Mr. Ethira and the learned

Public Prosecutor both agree that if the father and the son had been both tried together on charges u/s 302, I.P.C., there would have been no

misjoinder at all. In the Full Bench decision in -- ''In re Narayana Bhatta'', I. L. R. (1949) Mad. 220, there was a separate charge framed against

three persons for causing the disappearance of a murdered corpse who had nothing to do with the murder itself. That Pull Bench decision was on a

reference made by Horwill J. and myself and was occasioned by a difference of opinion between us. The view I then took and with the greatest

respect to which I still incline is that in cases, in which the disposal of the body is done by one of the persons directly charged with murder, the

persons who help him to dispose of the body, knowing he was the murderer, can be tried together with him, regarding murder and the disposal of

the body as offences in the course of the same transaction u/s 239 (d) . Crl.P.C., though where disposal of a murdered corpse is done by persons,

none of whom had any connection with the murder, then they should be tried separately. In our opinion, and in this both Mr. Ethiraj and the

learned Public Prosecutor agree, the Full Bench were dealing with the facts of a peculiar case as is clear from the following observation they made:

Obviously no general rule can be laid down as to when different offences can be said to have been committed in the course of the same

transaction. The question when it arises must be determined on the facts of the particular case"".

If the learned Sessions Judge split up this case on the strength of this decision, all we can say is that he misapplied it. It was open to him after notice

to the father to have altered the charge against the father also u/s 302, I.P.C., or better still to have framed what we consider to have been proper

charges on the facts alleged by the prosecution, viz, alternative charges under Ss. 302 and 201, I.P.C., against both the accused, keeping the

original accusation made by the investigating police intact for a single judicial de termination. On the peculiar facts in this case as alleged by the

prosecution, it was clearly doubtful which offences they will constitute and the procedure of alternative charges was fully justified u/s 238, Crl.P.C.

Mr. Ethiraj and the learned Public Prosecutor agree that if this had been done, there would have been no misjoinder at all. A superficial reading of

the Full Bench decision appears to have engendered an erroneous view that an offence u/s 201, I.P.C. can in no circumstances be tried along with

Section 302, I.P. C. It is perfectly open to a Court to convict an accused charged of murder u/s 302, I.P.C., of an offence only u/s 201, I.P.C.,

without even framing any separate charge under the latter section. This has been recognised in the Full Bench decision itself following the Privy

Council decision --''Begu v. Emperor, 6 Lah 226 We have carefully considered whether in this case there should be a retrial of the appellant along

with his father. This cannot now be done without notice to the father. The only legal evidence against the son is the retracted evidence of the only

eye-witness P.W. 2 and his lower Court deposition admissible u/s 283, Crl.P.C. The evidence of P.W. 1 that he was standing with a knife in his

hand with his father by the corpse is ''prima facie'' incredible. The legally admissible evidence against the appellant in the present case is quite

insufficient to war rant a conviction. We have also decided that it is insufficient to Justify even a retrial along with his father. We do not desire to

express any opinion here about the truth or falsity of the evidence of the village magistrate, P.W. 4, in view of the case pending against the father

Rangappa Naicker on the charge u/s 201, I.P.C. read with Section 511. I.P.C., in respect of which he has been committed, which must take its

course. Without the father appearing before us in the capacity of either witness or accused, we do not feel justified also in expressing any opinion.

This is the unfortunate result of the bisection of the case and the Police accusation with the evidence against'' the son forced into the narrow groove

of the first complaint and report made by the village magistrate in this case. With these observations, we allow the appeal, acquit the appellant and

direct him to be set at liberty.