In Re : Vairavan

Venkataraman, J.—This is a case of cold-blooded murder for gain, and yet the Appellant (accused) has been let off with the lesser sentence of imprisonment for life, by the learned Sessions Judge of Tirunelveli. The evidence against the Appellant is circumstantial, but it is absolutely cogent and conclusive. It has been set out fairly clearly and in detail in the judgment of the learned Sessions Judge, and it is enough to recapitulate the main facts. The murder took place on 10th November 1972 (a Friday) about 7 P.M. at the place marked A in the sketch, Ex.P.25. It is a useful plan. The place A lies in survey No. 554/20 south of Thavanai--Shenkottai road which runs from west to east, Thavanai being on the west and Shenkottai on the east. The prosecution case is that after murdering the deceased (Meera Sahib Rowther) at the point A, with the spade M.O.1, and relieving him of cash of Rs. 700/-, the accused disposed of the corpse in a channel B about hundred and fifty feet to the east. The deceased was a native of Thalaichera in Kerala State. He was a dealer in cattle. P.W 9 was his partner in trade. P.W. 5 is a close relative. The evidence of P.Ws. 5 and 9 shows that the deceased used to set out taking some cash for the purpose of his cattle trade. He left his village on Thursday 9th November 1972, taking some cash, and wearing the clothes M.O. 2 to 4 (saram or dhoti, shirt and towel). He was carrying the money in a khaki cloth bag (M.O.5) as usual.

The deceased told P.W.9 that he was going to Shenkottai. He used to return, sometimes, after a week, but he asked P.W.9 to meet him at Shenkottai on the following Saturday and Sunday.

P.W.3 Sangili is a Harijan of Shenkottai Village. He knew the deceased for about ten years and the deceased used to stay with him when he came to Shenkottai. The last of such occasions was on Thursday (9th November 1972). The deceased had brought cash of Rs. 700/- in the cloth bag (M.O.5). He gave it to P.W.3 for safe custody. He was then wearing M.Os. 2, 3 and 4. He left at 11 a.m. on the morning of Friday (10th November 1972) for collection of his dues, taking back the bag (M.O.5) with the (sic) from P.W.3.

P.W.7 is a resident of Thavanai-(Thavanai would be about a mile west of the scene of murder). P.W.7 had purchased a pair of bulls from the deceased and owed him Rs. 90/-. The deceased came to his house about 4 P.M. on Friday (l0th November 1972) and asked him for the money. P.W.7 promised to pay it after the next harvest.

P.W.8 is also a resident of Thavanai, and he gives similar evidence.

P.W.1 is a resident of Thavanai. He saw the deceased in the house of the accused on Friday (10th November 1972) about 5 p.m. It may be mentioned in this connection that the evidence of P.W.9 shows that the accused owed Rs. 85/- to deceased in connection with the sale and purchase of bulls. P.W.1 proceeds to say that about 6 p.m., when he was grazing his cattle in the coconut tope south of his house, he saw the accused and the deceased going towards Shenkottai on the Thavanai-Shenkottai road. The accused was then carrying a spade (M.O.1) and the deceased was wearing the clothes, M.Os.2 to 4.

P.W.2 is also a resident of Thavanai. His father had bought cattle from the deceased and owed him Rs. 300/-. The deceased came to their house about 4 p.m. on Friday (10th November 1972) and asked for the money. His father promised to pay it after the harvest. The deceased left their house.

Later, about 6 p.m., P.W. 2 set out together thulas leaves (the holy bazil herb) for preparing medicine for his father''s headache. He was gathering the leaves in the garden of Subramania Iyer north of the Thavanai-Shenkottai road and east of the Village of Thavanai. At that time he saw the deceased and the accused coming on the said road from the west. They were going towards Shenkottai. He saw them from a distance of hundred feet. It was about four furlongs east of Thavanai. The accused had a spade (M.O.1.) and the deceased was wearing M.Os. 2 to 4. The witness returned home after gathering the leaves.

P.W.3. it may be recalled, stated that the deceased left his house with a sum of Rs. 700/- on the morning of Friday to collect his dues. P.W.3 himself left his house about 11 a.m. for the house of his father-in-law in Karkudi village, west of Thavanai. That evening he was returning to his house on the Thavanai Shenkottai road towards east. About 6 p.m. he came near Subramania Iyer''s garden. At that time the accused and the deceased were coming behind him from west to east on the same road. P.W.3 asked the deceased whether he had not gone for collection work. The deceased replied that the accused owed him money and promised to raise the money on loan with interest at Shenkottai after irrigating his field. The deceased told P.W.3 that he would come with the accused and asked P.W 3 to go in advance and await him at Shenkottai. The accused was than having a spade (M.O.1) and the deceased was wearing M.Os. 2, 3 and 4. After this conversation, the accused and the deceased got down from the road and went towards the Valla-madam tank. P.W.3 waited at Shenkottai border till 9 M. but the deceased did not turn up. The witness went home. The murder is said to have been committed shortly after this.

P.W.4 is a resident of Thavanai. He says that on Friday (10th November 1972) the deceased came to his village to collect his dues from some persons, whom he has named. That night P.W.4 went to Thirumalai temple. He had to go to Shenkottai for the purpose. It was about 8 p.m. There was a culvert near Subramania Iyer''s garden. The witness saw the accused standing near the culvert and drying his wet cloth. He had also a spade. The witness questioned the accused and the accused replied that he had come there to irrigate his field. The accused then went away north. The witness went his own way to the temple, and returned to Thavanai the next day. The prosecution wants the Court to infer from the evidence of P.W.4 that after committing the murder, the accused had washed his clothes and the spade of the bloodstains. Having regard to the totality of the evidence that seems to be a reasonable inference.

On Sunday (12th November 1972) news spread that the victim was found murdered in the channel. P.Ws. 1, 2, 3, 4, 7 and 8 went there, and saw the victim lying dead at the place marked B in the sketch, Ex. P. 25. P.W. S who was a relative of the deceased learned about this when he went to Shenkottai. He went to the spot and saw the victim. He sent word to the house of the deceased through his son-in-law. He went to the Shenkottai Police Station and gave a complaint Ex. P1, to the Sub Inspector (P.W. 15) at 10 a.m.

P.W. 13 registered a case of murder. The Inspector P.W, 16 received the express copy of the F.I.R, went to the seene and, in the presence of P.W. 12 the Village Headman prepared the observation mahazar, Ex. P. 6. He found the corpse at the place B in the channel. He found blood-stains at the place A, hundred and fifty feet west. In between A and B there were dots of blood and the black-gram plants in the intervening fields were found twisted. He held the inquest between 12 noon and 3 p.m. During the inquest he examined P. Ws. 1 to 5, 9 and others. Later chemical examination revealed human blood in M.O. 6 earth recovered from the point A.

P.W. 16 sent the corpse for postmortem examination, and the autopsy was conducted by the doctor, P.W. 6. He found three incised wounds and three abrasions. Injury No. 1 was 10 cm x 5 cm x 5 cm over the back of the neck. Injury No. 2 was 14 cm x 8 cm x 10 cm. The brain had come out of the skull cavity and there was fracture of all the bones. Injury No. 2 was necessarily fatal. It was indeed a case of gruesome murder.

The accused was absconding. P.W. 16 arrested him on 19th November 1971 at 10.30 p.m. in the Puduvayal mango garden. P.W. 16 questioned him and the accused made a statement, portions of which have been marked as Exs. P.9 to P.14 u/s 27 of the Evidence Act. Some portions have been wrongly admitted and they will be dealt with presently. For instance, Ex. P. 9 states.

This may be translated thus:

Thereafter I tied up the shirt, saram and towel of the deceased and burried them in Subbiah Nambiar''s wet field north of the field which I was cultivating.

In pursuance of this the accused took P.W. 12 and 16 to the spot marked E in the sketch (west of A), dug out the earth and produced M.Os. 2, 3 and 4 which P.W. 16 seized under the athakshi, Ex. P. 14. We have seen that those clothes have been identified by numerous other witnesses as the clothes which the deceased had been wearing. On the question of the exact portion admissible, we may recall the following passage from the judgment of their Lordships of the Privy Council in Pulukuri Kottayya v. King Emperor ILR 1948 Mad. 1 : 60 L.W. 258 P.C.

In their Lordships'' view it is fallacious to treat the ''fact discovered'' within the sections equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered; Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if knife is proved to have been used in the (sic) of the offence, the (sic) discovered is very relevant. But if to the statement the words be added ''with which ''I stabbed A,'' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

According to this criterion, the fact discovered was that M.Os. 2, 3 and 4 had been concealed in the place E to the knowledge of the accused. The Statement of the accused relating to the fact thus discovered was that he himself had concealed them, (and that was why he was able to produce them). But the portion of the statement that the clothes belonged to the deceased (which portion we have underlined) does not relate to the fact discovered and amounts to past history of the clothes and is inadmissible according to the decision of the Privy Council.

The decision of the Privy Council has been followed in a number of other decisions; for example, by Yahya Ali, J. in Ravipudi Venkanna in re (1947) 2 M.L.J. 356; by Rajaraannar and Shahabuddin, JJ, in Public Prosecutor v. Oor Goundan (1948) M.W.N. Cri. 12 : 60 L.W. 729 (D.B.); by Rajagopalan, J., in In Re: Vellingiri, ; by Somasundaram, J. in Sheik Khader Sahib v. The King (1949) 2 M.L.J. 451 : 1949 M.W.N. Cri. 128. See also: K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, ; Karunanidhi v. State (1963) M.W.N. Cri. 166; Nand Kumar v. State of Rajasthan (1963) 2 Cri. L.J. 702 S.C.; Chunilal Vs. The Union of India (UOI), ; Punja Mava Vs. State of Gujarat, ; Jaffar Hussain Dastagir v. State of Maharashtra (1970) L.W. Cr. 138 S.C.; Himachal Pradesh Administration Vs. Om Prakash, ; Karan Singh Vs. State of U.P., .

Of these decisions we would like to make some comments about the decision in Vellingiri in re (1950) 1 M.L.J. 467. There the charge related to properties (dynamo and light) which were proved to have been stolen, by other evidence. The first accused made a statement which led to the discovery of these articles, (M.O. 2 dynamo from P.W. 4 and M.O. 3 light from the second accused). P.W. 4 gave evidence that he had purchased the dynamo from the first accused and had given the light to the second accused. The question was whether the first accused was in dishonest possession of M.Os. 2 and 3. The learned Judge held that the portion of the statement of the first accused that he had given the dynamo to P.W. 4 was admissible, but, in respect of the other portion of the statement relating to the light, the learned Judge held that that portion was inadmissible, on the following reasoning:

True, M.O. 3 alights was recovered from the possession of accused 2. But there was no evidence at all independently of Ex. P 3 to show that accused 1 gave that light to accused 2. It was dishonest possession of the light M.O.3 with which accused 1 was charged and the mere fact proved that it was with accused 2 would not necessarily lead to an inference that accused 2 obtained it from accused 1 or that accused I was ever in possession of it. All that was discovered on the basis of the statement, Ex. P. 3 was possession with accused 2, and not original possession with accused 1 and subsequent transfer of that possession from accused 1 to accused 2. So the portion of Ex. P 3, "I gave the dynamo and the light to Venkataswami" is not admissible in evidence, since the requirements of Section 27 of the Indian Evidence Act were not satisfied.

With great respect, in our opinion, the learned Judge was not right in excluding this portion in the statement of the first accused. According to the wording of Section 27 of the Evidence Act, as explained by their Lordships of the Privy Council, the fact discovered was the light in the possession of the second accused to the knowledge of the first accused as to this. The first accused slated that he had that knowledge because it was he who gave the light to the second accused. That statement related to the fact discovered and was admissible. There is no criterion in Section 27 of the Act for admitting that statement that there should be other evidence to prove that the first accused gave the light to the second accused. Rajagopalan, J., evidently felt difficulty in convicting the first accused of dishonest possession of the light on his mere statement u/s 27. That, however, was a question relating to the weight of the evidence and would not make the statement inadmissible. It may be noted that Section 27 itself makes it clear that the statement is admissible, whether it amounts to a confession or not and the mere fact that it happens to be of a confessional nature would not make it inadmissible. It so happened in that particular case that the statement amounted to a confession, but we can give an illustration where it may not have amounted to a confession. For instance, supposing that the first accused had stated in that case, "I saw the light with the second accused," that also would have been admissible, as showing how be came to know that the light was with the second accused. We are mentioning this only to make it clear that what governs admissibility is neither the fact whether the statement amounts to a confession or not, nor whether there is other evidence in support of the statement.

Somasundaram, J., has, in a way, explained this in In Re: Sheik Khader Sahib and Another, when meeting an argument of Mr. Rajagopalachari.

Ex.P.10 reads: "I have kept the spade in the house of my mother". Ex. P. 11 reads: "I had given Rs. 80/- to my mother." Ex.P.12 reads: "I kept Rs. 500/- in the bag which I had taken from the deceased and concealed it in the hayrick behind my house." Here again, the words "which I had taken from the deceased," would be inadmissible. Ex P. 13 reads: "The next day, Staurday, I came to Shenkottai and paid Rs. 69.66 for the cloth which I had bought."

In pursuance of Exs.P. 10 and P.11 the accused took the party to his house and produced the spade (M.O. 1) which was seized under the athakshi, Ex.P. 15. In pursuance of Ex.P. 11 the Inspector questioned the mother of the accused and she produced currency notes to the value of Rs. 80/- and he seized them under the mahazar, Ex.P. 16.

In accordance with Ex.P.12, the accused took out from a place east of the hayrick behind his house the cloth bag (M.O.5,) which contained currency notes to the value of Rs. 500 (M.O.8 series). P.W.16 seized M.O.5 and M.O. 8 series under Ex.P.17.

In pursuance of Ex.P. 13 the accused took the party to the shop of P.W. 11 at Shenkottai. P.W. 16 examined P.W. 11 and recovered the sum of Rs. 69.66. He also examined P.W. 10. Now we have to set out the evidence of P. Ws. 10 and 11.

P.W. 10 belongs to Shenkottai. He knew the accused. The accused would plough their land near Thavanai Village. P.W. 10''s father has an account in the cloth shop of P.W. 11. On 19th April 1972, at the request of the accused, P.W. 10 asked P.W. 11 to sell cloth to the accused to the extent of Rs. 69.66 on credit in the account of P.W. 10''s father. The bill is Ex P.3. P.W. 11 says that on 11th November 1972 morning the accused came and paid off Rs. 69.66. He entered it in his day-book, Ex. P. 4, and also in the ledger, Ex. P. 5. He further says that on 19th November 1972 the Police came with the accused and others and recovered the sum of Rs. 69.66.

The Chemical Examiner did not and any blood in M.Os. 1, 2, 3, 4 and 5. But human blood was found in M.O. 6, the earth recovered from the scene of murder.

The accused denied all the pieces of evidence adduced against him. He did not adduce any defence evidence.

The learned Sessions Judge accepted the prosecution evidence. We have no hesitation in agreeing with him. Though some suggestions have been made that the witnesses are giving false evidence out of some ill-feeling towards the accused or at the behest of the police there is absolutely no foundation for these suggestions. The whole evidence hangs well together. It is quite natural and convincing. The evidence taken together amply establishes the allegation of the prosecution that the accused murdered the deceased at the place A with the spade (M.O. 1), took his cash of Rs. 700 in the bag (M.O. 5), disposed of the corpse in the channel at the place B, buried the clothes of the deceased M. Os. 2, 3 and 4 at the place E, washing his own clothes at the culvert, paid Rs. 80 to his mother, concealed a sum of Rs. 500 with the cloth bag (M.O. 5), in the hayrick behind his house and paid Rs. 69, 66 to P.W. 11. It may be noted that the accused simply denied the pieces of evidence, and has no explanation whatever for these incriminating pieces of evidence. The only question is the proper inference to be drawn from these facts. It is, of course, true that, in a case of circumstantial evidence the evidence must form a cogent chain and must be incompatible with the innocence of the accused. In our opinion, this criterion has been amply satisfied in this case, and the pieces of evidence taken together are incompatible with the innocence of the accused, and the only reasonable inference is that which we have drawn above. The accused is clearly guilty of murder u/s 302 of the I.P.C. and the other charges; and he has been rightly convicted. The only unfortunate feature is that, though death was the only penalty that could be imposed in this case, the learned Sessions Judge has imposed the lesser penalty, observing

I hold that the ends of justice will be met if he is sentenced to imprisonment for life, in the circumstances of these case.

What the circumstances are which would justify the lesser sentence, we are not able to find. The accused must be thankful that he has been let off with the lesser sentence. We have no hesitation in dismissing the appeal. The appeal is accordingly dismissed.