In Re: Singaram and Another

Govinda Menon, J.—These three appeals arise out of Sessions Case No. 62 of 1952 on the file of the Court of Session of the West

Tanjore division wherein two accused were tried for an offence under S. 302 read with S. 34, I. P. C. in that they committed murder by causing

the death of one Mouna Swami by cutting him with an aruval on the night of 27-6-1952 at Chandrasekarapuram village. The learned Sessions

Judge found that those arraigned for this offence were guilty u/s 460, I. P. C. and sentenced each one of them to transportation for life. He also

found each one of them guilty under S. 380, I. P. C. and sentenced each of them to rigorous imprisonment for a period of seven years. The

sentences were directed to run concurrently.

The result of convicting the accused u/s 460, I. P. C. was the acquittal of the accused u/s 302 read with Section 34, I. P. C. and therefore the

State has preferred C. A. No. 176 of 1953 question ing the correctness of the acquittal of the accused for the offence of murder. Each of the

accused has filed an appeal against his convictions and sentences.

In the village of Chandrasekarapuram, an ascetic known as Mouna Swami was residing in a matam adjoining a Subraniania temple both of

which had adjacent tank and were situated on the eastern extremity of the village. Towards north runs a road from Valangaman to Papanasam and

it is also seen from the plan Ex. P-26 that there was a fencing on three sides of the compound wherein the matam and the temple were situated and

on the fourth side, viz., the southern side, there was a wall about 5 feet in height. It is not necessary to relate in any detail the habits of this Swami,

for it is not disputed that on the night of 27-6-1952 this Swami, as usual, after taking his night refreshment which consisted of a glass of milk, Went

to sleep in the Matam which was a small building surrounded on three sides by walls with an opening to the east closed by a thatti door. It is further

in evidence that when he was last seen alive, i.e., at about 9 p.m. on the night of occurrence, he was wearing kashayam robes and had a gold chain

on his neck and some gold rings on his fingers. The next morning at about 6 a.m. he was found murdered in the matam and the Jewels on his

person were missing.

According to the post-mortem certificate Ex. P-I, this Swami had died of shock and haemorrhage due to the injuries on his person of which the

necessarily fatal injury was injury No. 5, viz., an incised gaping wound across the middle of the neck 3""x 3"" cutting the vessels and stomach

underneath with a cut on the vertebra below to a depth of 1/4 inch. There were also five other injuries but injury No. 5 being necessarily fatal,

death would have been practically Instantaneous. There is therefore no doubt whatever that somebody inflicted the wounds on this unfortunate

hermit during the night in question and robbed him of the Jewels on his person. According to the prosecution case, the two accused in the Court

below were the murderers and thieves.

A brief resume of the prosecution evidence can now be given. P. w. l who was employed as a gardener of the Subramania Swami temple and

who used to sweep and clean the matam as well deposed that on 27-6-1952 at about 6 p.m. he left the Matam and the temple after finishing his

daily work and returned home. At that time the Swami was alive and was at the Matam. p. w. 2, the Foojari attached to the subramaniaswami

temple employed by the Swami, was in the temple till 9 p.m. on the 27th June and it was he who gave the Swami his milk food for the night. On

the morning of the 28th when both P. Ws. 1 and 2 went to the Matam and the temple at about 6 a.m. they found the Swami murdered and the

jewels on his person missing.

The evidence of P. W. 2 who could not be, and has not been, questioned, is that on the previous night, i.e., at 9 p.m. on 27-6-1952, the Swami

was wearing the gold chain on his neck and rings on his fingers as it was customary for him to do. When P. Ws. 1 and 2 saw the dead body inside

the Matam and the articles there thrown pell-mell, information was given to P. W. 4, the village headman under whose protection the Swami was

and who used to supply the Swami with the necessary wherewithal as well as his food. This"" information was given to him by P. W. 1 at the

Instance of P. W. 2. Immediately P. W. 4 informed his opposite house neighbour P. W. 5. and both of them proceeded to the Matam, found the

Swami lying murdered in a pool of blood, and the vessels and other utensils lying scattered. The village headman prepared a yadast Ex. P-2 to the

police and the Sub-Magistrate of Valangiman and sent them immediately. The Sub-Inspector of Police, P. W. 20, arrived on the scene at about 2-

30 a.m. and saw the corpse of the Swami lying on a quilt spread on two benches with Injuries on his person. The articles were seen lying scattered

and the boxes were found open. After holding the inquest the dead body was sent for post-mortem examination to the doctor. At the inquest the

Sub-Inspector examined the gardener, the poojari, the village headman and his friend Doraiswami Aiyar.

For sometime there was no clue whatever regarding the crime. But strenuous Investigation led the police to a clue which, when pursued further,

unearthed the mystery. On 19-7-1952 accused 2 was arrested in the village of Chandrasekarapuram. He made a statement which led to certain

discoveries. The admissible portions of the statement are Exs. P-4, P-4(a) and P-4(b). From the backyard of his house accused -2 produced a tin

box M. o. 8 which contained M. Os. Nos. 1, 2 and 3 which were respectively two gold rings and a piece of gold chain. The recovery of these

articles, as a result of a confession made by accused 2, is proved not only by the Sub-Inspector, p. w. 20 but also by the village headman p. w. 4,

and Doraiswami Aiyar, P. W. 5- In pursuance of the statement made by accused 2, accused 1 was arrested on 20-7-1952 at about 12 noon in

the village of Avoor. Accused 1 also made a statement which led to some discovery. This statement, as is the case with the other, |is; proved by

the Sub-Inspector & also by two respectable individuals of that village, P. Ws.7 & 8. The admisslble portions of that statement are Exs. P-9 and

P-9 (a) which are to the following effect:

Ex. P-9. I have buried and placed the two rings & half the portion of the minor chain (kept in a small piece of cloth) north of Ammi (Mortar).

Ex. P-9(a). If (anybody) comes with me, I shall take out and produce the two rings and half the portion of the minor chain, which have been

buried in my house.

These are M. Os. 4, 5 and 6 which are respectively a piece of gold chain and two rings. M. Os. 1, 2, 3, 4, 5 and 6 are identified by P. W. 8 as

having belonged to the Swami and as in his possession on the night he was murdered. In addi-tion we have the evidence of P. Ws. 13 and 14, a

wife and husband respectively, who deposed that they got made M. Os. 2, 3, 4 and 5 and presented them to the Swami. P. W. 15, a clerk in

Gopal-c''oss and Company, Kumbakonam, speaks to the fact of P. Ws. 13 and 14 having made the chain originally made up of M. Os. 3 and 4

and the two rings M. Os. 2 and 5. The two rings M. Os. 1 and 3 are proved to have been pledged with the Swami by P. W. 16 who proves the

same. Her husband P. W. 17 corroborates her evidence.

Accused 2 was then produced before the Sub-Magistrate of Nidamangalam before whom he made the confessional statement Ex. P-7 which is

proved by the Sub-Magistrate himself as P. W. 6. The confession was recorded after all the necessary warnings required u/s 164, Cri. P. C. and

Rule 85 of the Criminal Rules of Practice had been given and after all the formalities had been regularly, properly and consistently complied with.

The Sub-Magistrate deposes that he satisfied himself that the confession was voluntary before the same was recorded. In this confession accused

2 admits that both he and accused 1, after previous discussions and confabulations, decided to raid the Matam at night and rob the Swami of the

materials. We do not think it necessary to extract the confession ''in extenso'' but shall only give an excerpt to show how the Swami came by his

death.

We drew out the hook and entered inside. Singa-ram told me to focus the light. Swamiar was sleeping soundly. Above his head the bunch if keys

was hanging. Singaram took out the bunch of keys. Swamiar at once awoke. Soon after he woke up, he extended the aruval in front of his face.

He asked him ''where have you placed all? Take out''. At once he gets alarmed and got up. At once Singaram delivered a forcible cut in his neck. I

was focussing the light above him. He fell out, receiving the single cut. He further dealt with five or six cuts. I got frightened and put out the light. He

asked me to switch on the light. I switched on the light. I said, ''saying that we might rob the jewels and go away, you have brought me, and alas?

You have committed a murder like this''. He remarked ''do not make noise. Be quiet''. At once he broke the box, opened the papers and

scrutinised them. I was standing switching on The light. There was a trunk in the bureau. He asked me also to see it. I scrutinised all of the papers

with one hand. There was a ring in a packet. I took it out and gave it to him. He took out Rs. 30 from a cover. We went near the Swamiar and

saw. He lay in his lying posture. He cut the minor chain worn in the Swamiar''s neck by means of the tip of the aruval. After taking it, he removed

the three rings worn by the Swamiar in his hand, one ring could not be removed. He cut it a little and drew it. It came out. After taking them all he

wiped the blood in the aruval in the cloth by the side of the head. At once we both came out. We went to the Kamakshiamman Koil straight.

This confession so far as the murder Is concerned is exculpatory of accused 2, but it is clear that both of them had previously conspired to break

open i to the Swamiar''s sanctuary and rob him of the Jewels.

The only other witnesses about whom reference has to be made are P. Ws. 11 and 12. P. W. 11 deposes that while he and accused 2 were

sleeping in the tea shop belonging to accused 2 which was very near the Matam and the temple and adjoining the Papanasam-Valanglman Road,

accused 1 came to the tea shop at about 12 midnight and he and accused 2 were talking together in whispers. Thereafter accused 1 who had

brought some arrack poured it into two glasses and each one of them took one glass. Then they went out. The next morning p. W. 11 learnt that

the Mounaswaml had been murdered.

The substance of this witness''s deposition is at just before the murder, accused 1 and 2 met together in the tea shop of accused 2, had a drink and

went out together. If this evidence has to be accepted, it shows that both the accused were seen together in the near vicinity of the Matam. on the

night when the Swamiar was attacked and killed. We have been shown no reason why the evidence of P. W. 11, who, from cross-examination

does not seem to be an interested person at all, should not be believed. P. W. 12 speaks to the fact that accused 2 told him ten days prior to the

occurrence that they should get the cash from the Swamiar and for which purpose he invited the witness to join him. But the witness turned down

the idea pointing out that he wanted to earn honest living and not earn anything by robbery. By this evidence, the prosecution attempts to prove

that the two accused entered into a conspiracy for the purpose of breaking open into the house of the Swamiar and robbing him of the Jewels and

that in the course of that robbery, they conjointly committed the murder of the Swamiar.

In the Sessions Court accused 1 completely denied having anything to do with the robbery or with the murder. Accused 2, before the

Committing Court admitted having made the confession to the Sub-Magistrate but stated that it was not a voluntary statement but was the result of

tutoring by the police. As we have already stated, the learned Sessions Judge found the accused guilty u/s 460, I. P. C. and Section 380, I. P. C.

In paras. 23 and 24 of his judgment, the learned Sessions Judge discusses the effect of the evidence to find out what the offence is. If we accept

the evidence outlined above, in our opinion there can be no doubt whatever that both the accused are guilty of murder and that the lower Court

was not justified in convicting them of an offence u/s 460, I. P. C. This section can be invoked only if, from the evidence, it is clearly possible to

conclude that before the commission of the lurking house-trespass by night, or house breaking by night, the offenders did not have a common

intention of committing anything other than the above-mentioned offences and that therefore, if during the course of the commission of such an

offence one of the persons causes death or grievous hurt to any person, then only every person jointly concerned in committing lurking house-

trespass by night or house breaking by night shall be guilty of an offence u/s 460, I. P. C. It seems to us that in the present case the invocation of

Section 460, I. P. C. is irregular. If on the other evidence we are satisfied that the accused are guilty of the acts alleged, then Section 460, I. P. C.

is out of place. Such being the case, it has to be seen whether the facts and circumstances are such as would impel us to draw the only conclusion

that is possible, namely, that both the accused are guilty of an offence u/s 302 read with Section 34, I. P. C.

The following facts cannot be disputed. At 9 p.m. on 27-6-1952 the deceased was alive and was possessed of M. Os. 1 to 6 of which M. Os.

2 to b were on his person. The next morning he was found murdered having come by his death as a result of the injuries inflicted on him. The

jewels on his person were missing. We accept the evidence of P. W. 20 that on the information given by accused 2, accused 1 was traced and

arrested. As a result of the statement Ex. P-l series made by accused 2, M. Os. 1 to 3 were discovered. Further, as a result of statements made by

accused 1, M. Os. 4, 5 and 6 were also discovered. Lastly the other important piece of evidence which cannot be discarded is that at or about the

time when the murder took place, the two accused were seen together in a near vicinity of the scene of murder. From these circumstances, is it

possible to hold that the accused are the murderers?

There has been a line of cases in this Court of which the latest reported one is in -- ''Narayana v. Emperor'', AIR 1933 Mad 233 (A), where a

Bench consisting of Beasley C. J. and Reilly J. came to the conclusion that if a person is found in possession of property proved to have been in

the possession of the murdered person at the time of the murder, or if he is able to point out the place where such property is concealed and

admits having concealed it and fails to give any explanation of the possession of property, which can be reasonably accepted, then an inference can

reasonably be drawn u/s 114, Evidence Act that such person committed the murder or took part in its commission.

It was further held that it is not the duty of the Judge or the Jury to find out whether there are reasonable explanations for the possession of the

articles belonging to the deceased by the accused. The learned Judges referred to and distinguished an early case of this Court In -- In Re:

Sogiamuthu Padayachi and Another, .

The Bombay High Court in -- ''Easangouda Ya-manappa v. Emperor'', AIR 1941 Bom 139 (C), considered the Madras decision and disagreed

with the expression of opinion by Reilly J. that it is not the duty of the Court to suggest a possible explanation as to how the accused came by

possession of the articles which belonged to the deceased & were in his possession at or about the time of death. Beaumont C. J. laid down that

the circumstantial evidence must be consistent & consistent only with the guilt of the accused & that if the evidence'' is consistent with any other

rational explanation, then there is an element of doubt of which the accused is entitled to the benefit. The point on which therefore the two decisions

differ is regarding the duty of the accused to suggest the explanation.

This divergence of opinion was considered recently by a Bench of this Court in -- ''R. T. No. 113 of 1952 (Mad) (D), where Chandra Reddy J.

comes to the following, conclusion:

It is seen from all these decisions that the basic principle is that if an accused person is found in the possession of articles which were obtained as a

result of robbery and these articles belonged to a person who was murdered and are proved to have been on the body of the murdered person at

the time of murder, and there is no explanation for the possession of those properties, an inference could be drawn that either he took part in the

murder or he was privy to it. The only divergence of judicial opinion is with regard to the question whether the explanation for possession should

be given by the accused himself or whether it is the duty of the Court to see if there can be other rational explanations for the possession consistent

with the innocence of the accused as could be gathered from the evidence on record. However in this case the necessity to reconcile the various

decisions does not arise. It is pertinent to note in this connection that no explanation is offered by any of the appellants for the possession of these

jewels.

With due deference to the eminent Judges Who took part in -- ''AIR 1933 Mad 233 (A)'' and -- ''AIR 1941 Bom 139 (C)'', it seems to us that

mere possession by an accused person of articles which were on the person or custody of a murdered man without any explanation for such

possession cannot lead to an inference that he took part in the murder or that he was privy to it. The presumptions mentioned in the illustration to

S. 114, Evidence Act cannot be stretched to that extent. One can very well imagine a case where a jewel on the person of a murdered individual

came to be in the possession of another without any kind of reasonable explanation being offered by that individual. The fact that no rational

explanation is possible, or that the explanation offered is unacceptable, should not militate against the innocence of the individual with regard to the

offence of murder. Something more is necessary than mere possession of articles.

In the present case we have the evidence of P. W. 11 which we accept in its entirety that the two accused were in the near vicinity of the Matam

where the Swamiar was sleeping at or about the time when he came by his death and that is a circumstance which would ordinarily be sufficient to

entitle the Court to presume that the accused were parties to the murder or were privies to it. Ordinarily the presumption from the possession of

articles belonging to the deceased by accused persons immediately after the murder or robbery should be drawn only where some more evidence

is present to show that the accused persons were seen with the deceased immediately before his death or that the deceased was last seen alive in

the company of the accused persons.

In -- ''Queen Empress v. Sami'', 13 Mad 426 (E), the learned Judges observe as follows:

In cases in which murder and robbery have been shown to form parts of one transaction, it has been held that recent and unexplained possession

of the stolen property while it would be presumptive evidence against a prisoner on the charge of robbery would similarly be evidence against him

on the charge of murder. All the facts which tell against the appellant, especially his conduct indicating a consciousness of guilt, point equally to the

conclusion that he was guilty as well of murder as of the robbery committed..............

In that case, the learned Judges, though they expressed themselves in rather wide terms in the passage above-quoted, were of opinion, that in

addition to the circumstance regarding the unexplained possession of the stolen property there were other matters also which showed that the

accused was the murderer.

The decision in -- ''AIR 1933 Mad 233 (A)'' seems to lay down that there is some kind of onus on the accused to prove how he came to be in

possession of the articles. As laid down by the House of Lords in the -- ''Woolmington v. Director of Public Prosecutions'', (1935) AC 462 (F)''

there can be no onus of proof cast on an accused person in cases of this nature and so it will be difficult to agree with certain observations

contained in -- ''AIR 1933 Mad 233 (A)''

We are of opinion, as observed by the learned Judges of the Bombay High Court in -- ''AIR 1941 Bom 139 (C)'', that the observations in -- ''AIR

1933 Mad 233 (A)'' go a little too far. We wish to point out that unless some kind of connecting link, however remote it may be, is made out

between the movements of the deceased and the accused, at or about the time of murder, even if no reasonable explanation can be suggested or

invented by the Court for the possession by the accused of the stolen articles, it would be unsafe to convict the accused person of the offence of

murder. Usually some testimony would be forthcoming that the deceased was last seen alive in the company of the accused or that the accused

were found somewhere in the vicinity of the scene of murder at a time which has sufficient proximity to the incident. Unless some such connection

can be made cut we feel that the inference of murder should not be drawn.

In the present case, as we have already stated, the evidence of P. W. 11 is sufficient to show the connection mentioned by us above.

Accused 2 in his confession does not in so many terms implicate himself in the act of murder. But he definitely recites accused 1''s part in the

murder. This confession can u/s 30, Evidence Act be taken into consideration against accused 1. Even without that confession in our opinion there

is ample evidence in the case for the Court to come to the irresistible conclusion that the two accused are the murderers; and the self-exculpatory

statement by accused 2 should not in any way detract from the other circumstantial evidence from which the conclusion could be drawn that

accused 2 is also one of the murderers.

The learned Sessions Judge has laboured hard to apply Section 460, I. P. C. which in our opinion can-rot be invoked, for, both the accused can

be held guilty u/s 302 read with Section 34, I. P. C. Where one or more persons with only an intention to commit robbery or theft, after

committing lurking house-trespass or house breaking by night, inflict an injury on anybody or puts an end to the life of any person, it is only then

that Section 460, I. P. C. can be invoked. The necessary foundation for the application of Section 460, I. P. C. is the absence of any kind of

common object or common intention between the delinquents. A person without a common object, or a common intention with another, can be

held guilty u/s 460, I. P. C. if the circumstances mentioned in that provision of law are complied with.

In the present case we are definitely of opinion, in view of the evidence discussed by us above, that the Inference is irresistible that both the

accused are guilty of an offence u/s 302 read with Section 34, I. P. C. Therefore the acquittal of the appellants u/s 302 read with Section 34, I. P.

C. is set aside and they are convicted under those sections. The conviction u/s 460, I. P. C. is set aside. The appellants are each sentenced to

transportation for life. The sentence of seven years'' rigorous imprisonment imposed on each ac cused u/s 380, I. P. C. will also stand. The

sentences will run concurrently.