In Re: Mariappan alias Vengayan and Another

Chandrasekhara Aiyar, J.—The learned Additional Sessions Judge of Coimbatore, convicted the appellants, who are accused 1 and 2, of

the offence of murder of a girl called Kaliammal alias Papathi aged 9 years and sentenced them to death. The sentence comes up before us for

confirmation. There are criminal appeals filed by the two accused.

The girl Kaliammal alias Papathi was the daughter of P.W. 5 and P.W. 7. On the day of the occurrence, namely, 17th December, 1945, she

went to her mother''s sundry shop in the chuckler''s quarters near her village taking food for her and was on her way back to her house finishing her

errand. She did not reach home that afternoon as usual. A search was made for her that evening but without any avail. Her dead body minus the

jewels that she was wearing was discovered in a cholam field adjoining the path that she took to reach her village. On information received by the

police the 1st accused was arrested on 20th December, 1945 and questioned. He then made a statement which led to the discovery of the jewels,

M.O. No. 2 series, which the girl was wearing before she met with her fate. This statement was recorded by the Circle Inspector of Police who

was in charge of the investigation then and it is marked as P-5. The first accused confessed having stabbled the girl to death and having removed

the jewels and concealed them in the wall of a vacant house belonging to his aunt. He took the police and the witnesses to the house and produced

the tin case in which the jewels were found.

The second accused made a statement before the Taluk Magistrate of Tiruppur on 18th January, 1946, in which he gave his version of the

occurrence, the part that he played in it and the fact that the first accused after stabbing the girl to death took away the jewels, put them into a tin

case and concealed it on the top of a mud wall. This statement was recorded by the Magistrate after the necessary warning, and though the second

accused has, alleged that it was got from him as the result of compulsion, there is nothing to show that it was otherwise than voluntary. The only

circumstance on which reliance has been placed for the second accused to impugn the value to be attached to this statement is that it was recorded

as late as the 18th of January and by a magistrate other than the magistrate to whom originally the requisition was sent according to the Circle

Inspector of Police who has been examined as P.W. 18. The original requisition is stated to be missing. It is urged that we should infer from the

change of magistrates and the delay that has occurred that pressure was brought to bear upon the second accused in the interval to make a

confession corroborating what the first accused has said. There is no warrant, however, for any such inference being drawn, especially when it is

remembered that the accused himself did not say before the lower Court that he was produced before the Palladam Sub-magistrate and that he

then refused to make any statement confessing his part in the crime and that thereafter he was kept in custody and coerced into submission by the

police or by any other authorities.

What the second accused has stated can be taken into account not only as against himself but also as against the first accused. Far from

exculpating himself he has given a version which incriminates him completely in the murder of the girl. At the instance of the first accused he gagged

the girl''s mouth with a cloth and when life became extinct as a result of stabs inflicted by the first accused, he removed the jewels from the legs of

the dead body.

As regards the first accused, it was urged that the statement made by him should not have been admitted in its entirety containing the confession

that he stabbed the girl, because the jewels that were recovered as the result of the information given by him could not be said to have been so

recovered on the strength of the statement that he murdered the girl but only on the basis of his admission that he removed the jewels from the

person of the girl. Such truncation or dissection of a statement recorded by the police officer is not warranted according to the law as understood

in this Court, whatever may be the view taken in some of the other High Courts about the interpretation to be placed on Section 27 of the Indian

Evidence Act. Exhibit P-5 was, in our opinion, properly admitted and there is no escape from the conclusion that the girl was murdered by

accused i and 2 on the afternoon of 17th December, 1945, for the sake of the jewels.

We place no reliance in this case on the evidence given by P.W. 10 even though the learned Sessions Judge appears to have thought something

of it. The statement of the boy, that he saw the accused on the day in question with blood-stained hands and with a blood-stained knife, questioned

them about the blood and got the unsatisfactory answer that they killed a rat, is worth practically nothing when it is remembered that he did not say

anything about all this when the police were investigating into this occurrence the previous day to his knowledge, he being present on the scene.

When he was asked why he did not tell them about what he had seen his answer was that he did not remember what he had witnessed.

There is no direct evidence in this case, but the confession of the first accused leading to the discovery of the jewels which the unfortunate girl

was wearing on her person just before she was murdered and the statement made by the second accused to the magistrate u/s 164, Criminal

Procedure Code, make it perfectly clear that they are guilty of the offences with which they stand charged and were rightly convicted u/s 302,

Indian Penal Code.

For the second accused, an argument was based on his age which is given as 16 years in Ex. P-1, and as 20 years in the statements made

before the lower Courts. and it was urged, that the lesser sentence would meet the ends of justice. Age by itself is not an extenuating circumstance

and in a case of deliberate and pre-planned murder like this we do not feel justified in treating the case of the second accused differently from the

case of the first accused as regards sentence.

The sentences imposed by the lower Court are confirmed and the appeals; are dismissed.

The learned Public Prosecutor asks us to say, apparently because he is instructed by the Government to make such a,request, that this is not a

fit case for a certificate u/s 205 of the Government of India Act. Section 205 is in these terms:

An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the

case involves a substantial question of law as to the interpretation of this Act, or any order in Council made thereunder, and it shall be the duty of

every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or to

withhold a certificate accordingly.

The High Court can grant a certificate only in cases where a substantial question of law as to the interpretation of the Government of India Act

or any order in. Council made thereunder is involved; in other cases a certificate cannot be issued. The section casts on the High Court the duty to

consider in every case, of its own motion, whether any such question is involved and to give or to withhold a certificate accordingly. When we say

nothing about a certificate and do not grant it, it means that on the materials now before us, no such question as would warrant the grant of a

certificate is involved. It is not necessary, in our opinion, in each case to state in so many words that we withhold a certificate. We are perfectly

conscious of the duty imposed upon us by the statute and it is not necessary that we should remind ourselves or be reminded of it on each occasion

and say something in express terms as to what is our intention with regard to the power conferred, on us u/s 205.