karunkuzhi murder case - chief justice madras high court reference case

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MANU/TN/0138/1934

Equivalent Citation: AIR1935Mad528, (1935)68MLJ73a

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1934

Appellants: The King-EmperorVs.

Respondent: Ramanuja Aiyangar

Subject: Criminal

Catch Words

Mentioned IN

Case Note:Criminal - Admissibility of evidence - Whether certain statementsgiven in evidence for murder were admissible - Held, it was inevidence that trunks and deal-wood boxes were removed along thestaircase subsequently, and P.Ws. 25 and 26 swear that accusedwas sender of parcel - They identified him at identification paradeand accused had a crop in front prior to removal of tuft - Ex. KK.shows that accused was hard pressed and pledge of M. Os. 6, 7, 8,14, 15 and 16 articles of deceased by him supplies motive - Hissubsequent conduct including his false explanations to P.W. 2 alsopoints to his guilt and independently of statements in question,jurors who found accused guilty would have come to sameconclusion - There was therefore no ground for interference andconviction and sentence would stand.

JUDGMENT

Cronish, J.

1. The learned Chief Justice acting under Clause 25 of the Letters Patenthas reserved as a point of law for determination under Clause 26 thequestion whether certain statements given in evidence at the trial of M.Ramanuja Aiyangar for murder were admissible. The statements which arein question were made by the prisoner while he was in the custody of apolice-officer at the shop of a witness P.W. 10, and had relation to thesale of a mattress by that witness at that shop to the prisoner on the12th January, and to the carriage of the mattress by a coolie woman,P.W. 11 from the shop.

2. The circumstances in which the statements came to be made may bebriefly narrated. It is in evidence that the murdered woman had left herhusband on the 4th August last year and from that date had been livingwith the prisoner at different places in Madras. From the 23rd Decemberuntil the evening of 11th January, which was the last occasion according



to the evidence on which she was seen alive, the prisoner and the womanwere living together at 24, Peddunaicken Street. On the evening of the12th a package was brought to Egmore Railway Station in a cart and aluggage ticket taken for its despatch by train that night to Karunghuzhi bya man who has been identified as the prisoner. The package was notclaimed on arrival at Karunghuzhi next morning and lay in one of thestation offices until the smell of it led to its being opened and to thediscovery of the body of the woman sewed up in a coir mattress. This wason the 14th. The medical evidence showed that the woman had beenstrangled. The Police investigation began forthwith. The prisoner, who hadmoved from his lodging in Peddunaicken Street on the 13th, was arrestedon : the afternoon of the 23rd. The same afternoon, in consequence ofinformation given by the prisoner, he was taken by a Police-officer, P.W.42, to the shop of P.W. 10, and it was there that the statements, thesubject-matter of the point of law reserved, were made. - P. W. 10 andP.W. 11, it should be observed, have identified the mattress found in thepackage round the body as the mattress which was sold to the prisoner onthe 12th January.

3. In examination-in-chief the shop-keeper, P. W. 10, deposing to the visitof the prisoner with the Police to his shop, said:

The accused pointed out the shop, saying that it was inthat shop that he purchased the mattress.

4. The witness was cross-examined upon this, and he said:

It is because 10 or 11 days after he made thepurchase he came to the shop and himself pointed outthe shop saying that it was at this shop that hepurchased, adding 'I paid an advance of 8 annas andsubsequently paid Rs. 2-8-0' that I remember thisman.

5. The learned advocate for the prisoner pursued this topic and in answerto further questions the witness stated:

The car stopped in front of my shop at about 4 P.M.They all got down and entered the shop, and as soonas they entered, the accused, looking at me, said.

6. "I have purchased from him on the 12th a coir mattress"; and again:

It was the accused that was looking at me and askingme,' I purchased from you, it is not (is it not?) on the12th a coir mattress'? I replied to the accused' I willlook into the account and tell you.

7. Witness then stated that he looked into his account book, and said:

When I looked into the account, I found that on the12th, there was a sale of coir mattress and twopillows for Rs. 3-12-0 and another coir mattress forRs. 3 and I said therefore I did not know whether itwas the one or the other that I sold to the accused.Thereupon, the accused said, "I purchased it of you for



Rs. 3; I paid an advance of 8 annas, and I sent thebalance of Rs. 2-8-0 through the coolie woman."Thereupon he was asked, "So it was the accused thatreminded you of the purchase. Otherwise you wouldnot have known it"? And the witness's answer was"Otherwise I could not have known it.

8. The coolie woman, P.W. 11, who was near the shop at the time of thisvisit on the 23rd, waiting for a job, in cross-examination said:

The accused himself mentioned me and said that itwas a woman wearing a coral necklace.

9. In answer to a further question the witness said:

When I went there the accused said, "It was thiswoman that carried the article," and again:

It is upon his mentioning it that Iremembered. Pointing to me he said,'It is this coolie.

10. The Police-officer, P. W. 42, in cross-examination as to when theprisoner pointed out the coolie woman said:

11. It is only after the accused pointed out Muhammad Kasim (P.W. 10)and while we were coming out, the accused pointed out that woman withcoral beads on her neck and said that that was the coolie who carried hismattress"'. The first question to be considered is whether the statementsmade by the prisoner on this occasion amounted to a confession. I thinkthey did. They come within the definition of a confession in Stephen'sDigest of the Law of Evidence as an admission suggesting the inferencethat the prisoner committed the crime charged against him. It was thecase for the prosecution that the prisoner was the man who despatchedthe package containing the dead body in the mattress from EgmoreRailway station on the evening of the 12th. His admission,, therefore, thaton the morning of the 12th he had purchased a mattress was a highlyincriminating statement.

12. The confession having been made by the prisoner when he was inpolice custody is ruled out by Section 26 of the Evidence Act. But it hasto be determined whether an}' fact has been deposed to as discovered inconsequence of the confession. If any fact, provided it is a relevant fact,has been so discovered Section 27 permits so much of the confession asdistinctly relates to the fact thereby discovered to be given in evidence;the reason of the rule being that the discovery of the fact confirms theconfession. The fact alleged to have been discovered in consequence ofthe prisoner's statements is that he purchased a mattress from P.W. 10 onthe 12th January and had it carried from the shop by the coolie womanP.W. 11. The Police-officer, P.W. 42, deposes to this discovery. Thewitness has deposed " He (the prisoner) took me direct to that shop andthere pointed out Muhammad Kasim (P.W. 10) as the man from whom hepurchased the mattress". And, with reference to the coolie woman, thewitness stated that the prisoner pointed her out and said that she wasthe coolie who carried his mattress. If P.W. 10 and P.W. 11 had denied allknowledge of the prisoner and his purchase, or had been unable torecollect anything of the incident, no fact would have been discovered in



consequence of the prisoner's confession, and his confession would havebeen entirely groundless. But the consequence of the prisoner's statementwas that the Police-officer discovered not merely a shop-keeper and acoolie woman, but that the one had sold a mattress to the prisoner andthat the other had carried it for him from the shop. The sale of themattress and the carriage of it had, of course, to be proved like any otherfact. But inasmuch as P. W. 10 and P. W. 11 have deposed to the sale ofthe mattress to the prisoner, I think it can be reasonably said that thediscovery of the sale of a mattress to the prisoner on the 12th Januarywas the consequence of the prisoner's confession. It was the confessionthat directly led to the Police-officer making the discovery. Thecircumstance that the prisoner's purchase of the mattress was alreadyknown to P. Ws. 10 and 11 (although temporarily forgot-ten until theprisoner's visit to the shop with the police reminded them of it) would notprevent the discovery of the purchase from being a discovery of the factby the Police-officer within the meaning of Section 27. LegalRemembrancer v. Lalit Mohan Singh Roy (1921) I.L.R. 49 C. 167.

13. It has been contended that what the Police-officer discovered wasnot a "fact" within the contemplation of the section. "Fact'' is defined bythe Evidence Act, Section 3, to mean and include (1) any thing, state ofthings, or relation of things capable of being perceived by the senses. Inmy view the definition does not restrict a fact to something which can beexhibited as a material object. The learned Crown Prosecutor gave an aptillustration of a wider meaning of the word. He supposed the case of aprisoner confessing to having kidnapped a girl and informing the policewhere he had confined her. I think that the discovery of the girl in thatplace in consequence of the information given by the prisoner would bethe discovery of a fact. It would be the discovery of a "state of things". InSukhan v. The Crown (1929) I.L.R. 10 Lah. 283 (F.B.) the majority of FullBench held that the statement of the prisoner that he had pledgedjewellery with a certain man was admissible in consequence of thediscovery of the jewels with that man. The fact of the pledge was theretreated as a fact discovered. Pledged jewels would naturally be in thepossession of the pledgee. In the event of a purchaser of an article, suchas a mattress, thing purchased would ordinarily have passed out of thepossession of the person who sold it; but I cannot see why a purchaseshould be any the fless a "fact" than a pledge. If the thing purchased hasbeen proved to have been sold and has been identified as the thing sold tothe prisoner, all the conditions necessary to the discovery of the fact ofpurchase are forthcoming. I think that the discovery of the purchase of amattress by the prisoner on the 12th January; was the discovery of arelevant fact in consequence of a confessional statements made by theprisoner to P.W. 42, and that the statements distinctly related to the factdiscovered. The statements set out in the case reserving the point oflawwere therefore, in my judgment, admissible.

14. This conclusion makes it needless for me to discuss the questionwhether, assuming that the evidence of the prisoner's statements shouldhave been excluded, the other evidence in the case was-sufficient tosustain the conviction. But as the question was argued, I will say that inmy opinion there was ample evidence, quite apart from the confessionalstatements, to support the conviction. The conviction therefore must beupheld.

Burn, J.



15. The facts have been set out in the judgments of my learned brothersand need not be repeated by me.

16. Without meaning any disrespect to the erudite argument of thelearned advocate for the prisoner, I do not propose to refer to any of theEnglish cases quoted by him. The question for our consideration is whethercertain statements alleged to have been' made by the accused while inthe custody of the police are admissible in evidence. It is now settledbeyond dispute that the law of evidence in this country is contained in theprovisions of the Indian Evidence Act. Therefore, although study of theEnglish' cases may be useful and instructive to any one who wishes tolearn-the history of any particular section, or to grasp the principlesunderlying the law of evidence, it is not, in my opinion legitimate toattempt to deduce the law from the English decisions. When the terms ofany provision of the Evidence Act are clear and unambiguous, it is ourduty to apply them without hesitation. We are not permitted to say, afterdiscussion of the English cases on which the provision is based, that thelegislature must have meant something different from what it has in factlaid down.

17. The present case is in one sense quite free from complication. Thelearned Crown Prosecutor did indeed make a submission that thestatements of the accused with which we are concerned might-beadmissible under Section 8 of the Evidence Act, as conduct. But in view ofthe terms of Explanation 1 to Section 8, the learned Crown Prosecutor,very properly as I think, did not seriously press such a contention. Theonly section with which we have to do is Section 27 of the Act. If thesestatements are admissible at all it must be under Section 27. If they comewithin the terms of Section 27 they are admissible; if they do not, theyare inadmissible.

18. Section 27 runs as follows: - "Provided that, when any fact is deposedto as discovered in consequence of information received from a personaccused of any offence, in the custody of a Police-; officer, so much ofsuch information, whether it amounts to a confession or not, as relatesdistinctly to the fact thereby discovered, may be proved".

19. As the first word shows, this is a proviso, and it is now well settledthat it is a proviso to both the Sections 25 and 26 which immediatelyprecede it. Those sections exclude confessions made to a Police-officer,and the confessions made by any person whilst he is in the custody of aPolice-officer, unless in the latter case the confession be made in theimmediate presence of a Magistrate. This section therefore provides that ifcertain conditions are fulfilled, a confession made to a Police-officer, or aconfession made by a person in the custody of a Police-officer, may beproved. It is not however necessary that the information given by aperson in the custody of a Police-officer shall be a confession before itcan be proved under the provisions of this section. This is clear from thewords used. Any information which relates distinctly to the fact deposedto as discovered in consequence of the information received may beproved. In addition it is laid down that such proof may be given even if theinformation amounts to a confession; it is the words "whether it amountsto a confession or not," which make this section an exception to thegeneral rules embodied in Sections 25 and 26.

20. Strictly speaking therefore it is not important to decide whether thestatements alleged in this case to have been made by the accused



amount or do not amount to a confession. The section says that even ifthey do they may be proved, subject of course to the fulfilment of theother conditions prescribed. If they do not amount to a confession theyare equally, if not a fortiori, provable. For myself I do not see how thesestatements can properly be described as a confession, in any completesense. No one, I imagine, would hold that the jury could have convictedthe accused of the offence of murder, if nothing more had been provedagainst him than that he had made these statements. Even if the jury hadbeen entirely satisfied that the accused had made these statements,, andthat they were true, they could not have held on them alone that theaccused had committed murder. They are confessional statements in thesense that if believed they establish one of many facts which taken alltogether prove the guilt of the accused. It is impossible in my opinion torate these statements higher than that. Indeed, it is merely to state anobvious truth to say that if the Police had not been able to adduce anyother evidence than this:--that the accused had bought' the mattress inwhich the corpse was found tied up, and had that mattress taken to thehouse in which he was living--he would never have been put on his trial.The statements are incriminating certainly, and to that extent they are ofa confessional nature, but they cannot be properly described as anythinglike a complete confession.

21. Taking now the provisions of Section 27, there is no doubt but thatthe accused, on the 23rd of January, 1934, when he is alleged to havemade these statements, was a person accused of an offence and was inthe custody of a Police-officer. He had been arrested by the Inspector ofPolice, (P.W. 42) on a charge of murder, and he was in the custody ofthat officer. The next point to consider is, in the words of the section,whether any fact was deposed to as discovered in consequence ofinformation received from the accused while in custody. This point isreadily settled by a reference to the evidence of P.W. 10, the shop-keeperwho said he sold the mattress to the accused, and of P.W. 42, the PoliceInspector. P.W. 10 says "About 10 or 11 days afterwards, about 4 P.M.,this Inspector and another Aiyar came with the accused and the accusedpointed out the shop, saying that it was in that shop that he purchasedthe mattress". This is the first item of evidence reserved for ourconsideration by My Lord the Chief Justice. Again, P.W. 42, the PoliceInspector, says in chief-examination that he went to the shop ofMuhammad Kasim, (P.W. 10) on the information of the accused, and thatthe accused pointed out the premises, and that he, (the inspector)discovered the witness Thayi, (P.W. 11) on her being pointed out by theaccused. In answer to a question by the Court the Inspector said: "Yes.He took me direct to the shop and there pointed out Muhammad Kasim asthe man from whom he purchased the mattress". Further, in cross-examination, the Inspector replied to questions put to him as follows:

Q. - And did you see the woman Thayammal whenyou went there?

A. - Absolutely not.

Q. - When did she turn up there?

A. - It is only after the accused pointed outMuhammad Kasim and while we were coming out,the accused pointed out that woman with coral



beads on her neck and said that was the coolie whocarried his mattress.

22. These passages show beyond the possibility of doubt, that the twofacts were deposed to as discovered in consequence of information givenby the accused. The two facts are: (1) that the mattress was purchasedby the accused from P.W. 10, and (2) that the woman P.W. 11 wasengaged by the accused to carry the mattress to the house in which hewas then living. No attempt was made at the trial, so far as can beinferred from the record, to show that these two facts were discovered inany other manner or in consequence of information given by anyone else.The only reasonable conclusion is that these facts were really discoveredin consequence of the information given by the accused while he was inthe custody of the Police Inspector. That is more than is required by theterms of Section 27. The section does not require more than that certainfacts shall be deposed to as discovered in consequence of informationreceived from a person accused of an offence.

23. As I have said, Mr. Venkatarama Sastri for the accused does notcontend that these facts were discovered in any other manner than thatdescribed by the prosecution. Nor does he contend that they are notrelevant facts. Indeed in a branch of his argument which I shall considerlater, he contends that these were the most important facts in the wholecase, but for which the jury could not, or at any rate would not, haveconvicted his client. He is compelled for the purposes of this case tocontend that though these are facts, and relevant facts, they are not thekind of facts with which Section 27 is concerned.

24. The argument as I understand it is briefly as follows: - Confessionsmade to the Police or by persons in the custody of the Police are excludedbecause there is a grave risk of their being false. But, in the words ofWoodroffe and Ameer Ali, "the necessity for the exclusion disappears in acase provided for by this section, when the truth of the confession isguaranteed by the discovery of facts in consequence of the informationgiven. It is this guarantee, afforded by the discovery of the property, forthe correctness of the accused's statement, which is the ground of theadmission of the exception to the general rule. The fact discovered showsthat so much of the confession as immediately relates to it is true". Itfollows according to Mr. Venkatarama Sastri's contention, that the factsreferred to in Section 27 must be of a particular kind, must have aparticular character. They must be of such a nature that by themselves,without any accompanying statement of a witness, they demonstrate thetruth of the information given. In one word, he contends, the facts mustbe "self-probatory". This is an instance of the practice which I havealready deprecated. From the reason underlying Section 27 an attempt ismade to deduce the conclusion that Section 27 does not really mean allthat it says, but only a part of it. Section 27 says "any fact", but in spiteof that, the contention is, we must suppose that it means only facts ofthis peculiar nature. I must decline for my part to accept any suchcontention. Nothing can be easier to understand than the words "anyfact", and I am not prepared to hold that they mean less than they say. Ishall therefore not discuss any of the numerous cases cited by Mr.Venkatarama Sastri in which learned Judges have gone the length ofholding that the only facts contemplated by Section 27 are actual physicalmaterial objects. There is no warrant for any such limitation.

25. It can even be contended very fairly, as the learned Crown Prosecutor



has contended in this case, that the facts discovered in consequence ofthe information received from the accused satisfy the test deduced fromthe reason underlying the rule. The accused gives information of the factsof his purchase of the mattress and of his engagement of the cooliewoman to carry it to his residence. In consequence of that information thePolice discover the shop, the shop-keeper and the coolie woman. Thewitnesses when questioned speak to the two facts disclosed by theaccused. There is therefore independent proof of the truth of theinformation given by the accused. What more than this is forthcoming inthe cases in which material objects, such as stolen properties orimplements of crime, are found? The actual finding of such things in theplace where the accused says they will be found proves no more than thatthe accused knew where they were. He may say for instance that he hashidden stolen property in a straw-stack. The stack is searched and theproperty is found. That however is not in any sense proof that it washidden there by the accused. The discovery certainly corroborates theaccused's statement to some extent, and ordinarily in such a case no onewould have any difficulty in believing that the accused had in fact hiddenthe property there himself. All that I am now concerned to point out isthat the mere finding of the property does not in any way by itselfcorroborate the accused's story of how it got to the place where it is.This will appear in a moment if we consider a case in which an accusedperson gives information which incriminates another. It will not be far-fetched to suppose for instance a case in which two men have beenjointly concerned in a theft. One of them is arrested and he says: "Myconfederate has buried some of the stolen property in such a place". Theplace is searched and the property found. Who will consider the finding ofthe property as any corroboration of the accused's statement that it wasput there by the other man? The magistrate or judge is far more likely todraw the inference that the accused must have put it there himself.Without discussing this matter at greater length it is in my opinionsufficiently clear that material objects have not in themselves any greaterprobative value than any other facts.

26. Having thus found that all the other conditions required by S, 27 arepresent, I proceed to discuss the only question that remains, which is: -Do these statements, made by the accused, relate distinctly to the factsdiscovered in consequence of the information given by him? This part ofSection 27, like all the other parts of it, has been the subject ofinterpretation in many decided cases. I do not think anything is to begained by an examination of those cases, for a very simple reason. So faras I am able to understand, the glosses on these words, and theinterpretations of them to be found in the decided cases are far lesssimple and intelligible than the words themselves. It is a commonplace ofthe schools that what is obscure cannot profitably be explained by what isstill more obscure. I will venture to say that the legislature has used thesimplest words possible, words which are not susceptible of explanation inmore intelligible terms. Our task is merely to decide whether these wordsapply to the statements laid before us by the learned Trial Judge.

27. Of the eight items with which we have to deal, only one was broughtout by the prosecution in the examination-in-chief of P.W. 10. I havereferred to this already. It is the passage in which P.W. 10 says: - "theaccused point out the shop, saying that it was in that shop that hepurchased the mattress". This of course relates distinctly to the fact ofthe purchase of the mattress by the accused, and it is clearly admissibleunder Section 27. One item, the 7th in the order of the learned Trial



Judge, is an anwer given by the coolie woman to a question put by theCourt. That woman, (P.W. 11) says:--When I went there the accusedsaid, "It was this woman that carried the article". This statementundoubtedly relates distinctly to the fact that the accused engaged thatwoman to carry the mattress to the house in which he was living. Thatalso is admissible under Section 27. All the other items were brought out inthe cross-examination, by the learned advocate for the defence, of P.W.10, P.W. 11, and P.W. 42. No one suggests that statements which wouldbe inadmissible if offered in examination-in-chief for the prosecution canbecome admissible merely because they were made in answer to questionsput in cross-examination. It is, however, a fair presumption that thequestions put in cross-examination, especially when they are put by alearned advocate described by the learned Trial Judge as a gentleman ofvery great experience, will not be quite irrelevant, or unrelated to thematters in issue. In the present case that presumption is borne out by thefacts; the questions were very relevant and had a very near relation tothe facts. Items 2, 3, 4 and 5 appear in the cross-examination of P.W. 10.They are as follows:

the accused himself pointed out the shop, sayingthat it was at this shop that he purchased, adding, "Ipaid an advance of annas 8 and I subsequently paidRs. 2-8-0";

the accused looking at me said "I have purchasedfrom him on the 12th a coir mattress.

It was the accused that was looking at me andasking me "I purchased from you, is it not, on the12th a coir mattress";

thereupon the accused said "I purchased it of you forRs. 3: I paid an advance of eight annas and I sentthe balance of Rs. 2-8 0 through the coolie woman".

28. The first and fourth of these statements describe the terms of thepurchase, and I do not understand how it can fairly be contended that theterms of purchase do not distinctly relate to the fact of the purchase. Thesecond and third of these four statements are mere repetitions of thestatement made in the chief-examination of the same witness, with theaddition of the date of purchase and of the person who sold the mattress.These additions also distinctly relate to the fact of purchase, unless it canbe held that the identity of the vendor and the date of sale are matterswhich do not relate to the fact of a sale.

29. Items 6 and 7 occur in the deposition of P.W. 11. I have already dealtwith item 7. Item 6 is P.W. 11's answer to the question: - "When you sawthis accused on that day did you remember his features when the Policeasked you about him from what you saw him on that day?" The reply was:"The accused himself mentioned me and said that it was a woman wearingcoral necklace." When the fact discovered in consequence of theinformation received from the accused is the fact that he engaged acertain woman to carry the mattress to his house. I fail to see how it canbe argued that the identity of the woman is not a matter distinctly relatedto the fact. The statement of the accused that P.W. 11 was the woman,and the addition of the detail that she was wearing a coral necklace, are



clearly admissible under Section 27.

30. The eighth and last item of evidence with which we have to deal is theanswer given by the Police Inspector to a question put to him in thecourse of a cross-examination intended apparently to elicit whether it wasreally true that the woman Thayammal, (P.W. 11) was pointed out to thePolice by the accused. The learned advocate first asked the witness: -"And did you see the woman Thayammal when you went there?" The replywas: - "absolutely not". Then the advocate asked:--"When did she turn upthere?" and the Inspector replied: "It is only after the accused pointed outMuhammad Kasim and while we were coming out, the accused pointed outthat woman with coral beads on her neck and said that that was thecoolie who carried his mattress". This was precisely the information givenby the accused which led directly to the discovery of the fact that he hadengaged that woman to carry the mattress to his house, and proof of it iscertainly admissible under Section 27.

31. For these reasons I agree with my learned brother Cornish, J., thatnone of the evidence referred to in the order of the learned Trial Judgewas inadmissible.

32. We heard Mr. Venkatarama Sastri on the question whether, assumingfor the sake of the argument that all or any of these items of evidencewere inadmissible, the verdict of the jury could or should be sustained. Onthis question the learned advocate developed at great length whatseemed to me to be a very remarkable argument. He discussed the wholecase in three aspects, (a) motive, (b) the events which according to himmust have occurred in the house in Peddu-naicken Street on the night ofthe 11th January, and (c) the evidence regarding the occurrences atEgmore Railway Station on the night of the 12th of January. He invited usto say that the case against the accused, considered in all these threeaspects, was extremely weak, and that the jury would certainly, or at anyrate probably, not have convicted the accused, if they had not beenobsessed by this matter of the accused buying the mattress at the shopof P.W. 10, and having it carried by P.W. 11 to the house in Peddu-naicken Street. According to the learned advocate, this was the cardinalfact in the whole case, without which the prosecution would have failed tosatisfy the jury of the guilt of the accused. He went so far as to say thatthis fact was offered to the jury as the fact which would solve all thedoubts and difficulties they might entertain with regard to the whole ofthe rest of the case. The jury were invited, the learned advocatecontends, to found their whole decision on that point:

33. I have said that this seemed to me to be a very remarkable argument,and my reason for saying so is that the learned Trial Judge's charge tothejury contains no foundation for it. It is quite incorrect to say that thelearned Trial Judge offered this fact to the jury as the universal solvent ofall their difficulties. Nowhere has the learned Judge invited the jury tobase their decision on the fact that the accused bought the mattress andhad it taken to his house. Still less, if that were possible, can it becorrectly stated that the learned Judge laid any particular stress on thepoint that these facts were discovered in consequence of informationgiven by the accused. The learned Judge dealt with this matter in twoplaces only, so far as I have been able to see. In the part of his chargewhich begins in the middle of page 260 of the printed record, the learnedJudge describes the evidence given by the mattress-seller and the cooliewoman and on page 261 he goes on to say that if the jury "believe the



evidence of the mattress-seller and the coolie woman it is quite clear thatthe accused purchased a coir mattress on the 12th". He then refers to theevidence that the accused pointed out to the Police: "This is the shop:that is the man and this is the coolie woman who carried the mattress".Immediately afterwards the learned Judge reminds the jury that theaccused denied all this, and I can find nothing in the charge to indicatethat the learned Judge invited the jury to believe the evidence of P.W. 10and P.W. 11 because the accused was alleged to have pointed them outor because the accused was said to have made any statements aboutthem. The only other passage in which the learned Trial Judge referred tothis matter is at the top of page 268 of the record, where he describedthe mattress as "the tell-tale coir mattress". There again he made noreference to what the accused was said to have revealed about themattress, but merely advised the jury that the mattress was a verystrong piece of evidence in the case, because if they believed theevidence, it connected the accused with parcel, and so with the womanSithammal, whose body was found in the parcel.

34. The conclusion therefore is that this fact of the purchase of themattress was not put before the jury as the one solid fact amongst alarge number of doubtful matters. And even if it had been otherwise, theproof of the purchase did not depend on what the accused said, but farmore on what was said by the witnesses. This circumstance differentiatesthis case from the cases which were cited to us by Mr. VenkataramaSastri in support of the proposition that when some evidence is found tohave been wrongly admitted, it is never safe to assume that the decisionof the jury would have been the same if that evidence had beenexcluded. All those cases, so far as I could gather, were cases in whichevidence was admitted to prove facts which were irrelevant. Here there isno question of the admission of irrelevant facts; at the very most it mightbe said that some of the evidence let in to prove a very relevant fact hadbeen wrongly admitted. But there was plenty of admissible evidence toprove the same fact, and so far as can be gathered from the charge tothe jury, it was upon that evidence that they were advised to found theirdecision.

35. In these circumstances I am satisfied that independently of theevidence now in question there was sufficient evidence to justify thedecision and that consequently Section 167 of the Evidence Act wouldforbid us to interfere. I would go further, in view of the dicta in certainreported cases, and would say that in my judgment the omission of theseitems of evidence could not have made any difference to the verdict.

36. The conviction and sentence must therefore be confirmed.

Lakshmana Rao, J.

37. The accused was tried at the third Criminal Sessions, on an indictmentunder Section 302 of the Indian Penal Code, for intentionally causing thedeath of one Sithammal by manual strangulation on the night of the 11thof January 1934, at No. 24, Peddunaicken Street, George Town, Madras,and the jury found him guilty of the offence by a majority of 6 to 3. TheTrial Judge, My Lord The Chief Justice agreed with the majority verdict andthe accused was sentenced to death. He moved the Advocate-General fora certificate under Clause 26 of the Letters Patent, which empowers himto certify that a point or points of law which has or have been decided bythe Court should be further considered and the Crown Prosecutor opposed



the application. The Advocate-General gave a certificate regarding thereception in evidence of certain statements made by the accused while inthe custody of the Police, to which exception was not taken at the trial,and the omission of the Trial Judge to direct the attention of the jury tothe question of the continued possession till her death by the deceased ofthe silver articles pledged by the accused subsequent to the murder, andthe accused applied for a review of the case under Clause 26 of theLetters Patent. The Crown Prosecutor intimated his intention to questionthe interpretation of the words "decision on a point of law decided by thetrial judge" in the Full Bench decision in C. K. N, Sundaresa Aiyarv.Emperor (1930) M.W.N. 249 (F.B.), and take preliminary objection tothe competency of the application, on the ground that there was nodecision on a point of law by the Trial Judge requiring furtherconsideration, and a Full Bench of seven judges was formed to considerthe objection. The Full Bench upheld the preliminary objection by amajority of 5 to 2, and it further held that the question of continuedpossession of the silver articles till her death by the deceased, did notarise in the case, in view of the plea of the accused that they belonged tohim and not the deceased. The application for review was thereforedismissed, and since the question of the admissibility of the statementsmade by the accused while in the custody of the police and the effect oftheir admission, if inadmissible, could not be considered therein, thelearned Chief Justice has in the exercise of his powers under Clause 25 ofthe Letters Patent reserved it for the opinion of the High Court.

38. The corpse of Sithammal was despatched by train from the EgmoreRailway Station to Karunguzhi on the night of 12th January, 1934 packedin among other things M.O. 29 the coir mattress, and the statements inquestion relate to the purchase of the mattress by the accused from P.W.10's shop on the 12th January and its carriage by P.W. 11 the cooliewoman to No. 24, Peddunaicken Street. They were made while in thecustody of P. W. 42 the Police-officer and the facts necessary for thedetermination of the questions which arise on this reference may now bestated. The murdered woman was the wife of P.W. 1 and she left hishouse on the 4th August, 1933 taking with her all the valuables includingjewels and silver articles, some of which are specified in Exhibit A thereport of the husband to the Police. She was living with the accusedthereafter at different places in Madras, and the evidence of P. Ws. 2 and3 the lessee and sub-tenant of a portion of the downstairs of No. 24,Peddunaicken Street, shows that from the 23rd December, 1933, theywere living in the first floor of that house where the woman is alleged tohave been murdered on the night of the 11th January, 1934 for the sakeof her property. She was last seen in the house by P.Ws. 2 and 3 about 6-30 and 7 P.M., respectively, on the day of occurrence, and according toP.W. 2, she was wearing among other things M. O's 14 and 15 the pair ofthodus set with rubies and the diamond besari. The accused too was inthe house, and she was not seen alive thereafter. P.W. 3 noticed theaccused going out of the house about 4 A.M., next morning when she gotup to relieve herself, and P. W. 6 the milk-supplier of the accused arrivedwith milk about 6 A.M. The door at the top of the stairs leading to the firstfloor was hasped from outside, and P.W. 6 returned, thinking that theoccupants had gone out. She mentioned it to P.W. 2 who was cleaning histeeth outside, and the accused returned to the house about an hour later.P. W. 2 questioned him about what P.W. 6 had reported and the accusedstated that he had taken Sithammal to his sister's house at Saidapet toassist his sister who was then in labour. P.W. 2 who is a coal contractorleft the house soon after, and from the evidence of P. Ws. 10 and 11



shop-keeper and coolie woman, who were pointed out by the accused, itappears that the accused purchased M.O. 29 the coir mattress from P.W.10's shop about 10 A.M. on the 12th January and had it carried to No. 24,Peddunaicken Street by P.W. 11 the coolie woman. He was on the firstfloor when P.W. 2 returned for his meal about 12 O'clock and the witnessleft again about an hour later. P.W. 3 also left about 3 P.M. and it is inevidence that the other tenant was absent throughout the day. Theaccused was in the house when P.W. 2 returned in the evening and hewas there till P. W. 2 left, for the temple about 6-30 P.M. He was notpresent when P.W. 3 returned about 8 P.M. and the parcel containing thecorpse of Sithammal was despatched from the Egmore Railway Stationabout 9-45 P.M. by a person who was subsequently identified as theaccused by P.Ws. 25 and 26 the coolie porter and assistant parcel clerk;The accused did not return to his residence that night and the evidence ofP.W. 12 shows that the accused came to his master's godown about 11P.M. He slept there that night and went to No. 24, Peddu-naicken Streetnext morning taking P.W. 12 with him. The jutka of P.W. 29 was fetched,and the belongings of the accused includ-ing two trunks and woodenboxes were loaded into it. P. W. 2 enquired whether they were vacatingand the accused replied that he was, as he had been appointed villagemunsif of Salur. The things were removed to the godown, and the accusedstayed there for three days. He had a tuft behind and crop in front, till heleft his residence, and he got the tuft removed by P. W. 13 the barber onthe 14th. P.W. 2 questioned him about it when he went to No. 24,Peddunaicken Street on the 15th to pay up the amount due to the milk-seller, and he was told that the head was cropped as it was moreconvenient. The parcel was not claimed at Karunguzhi and information wassent to the Police on the 14th January as it emitted a foul smell. It wasopened that evening in the presence of P. W. 32 the Sub-Inspector andthe Sub-Magistrate, and the corpse of Sithammal which had been foldedthree-fold was found inside. Inquest was held next morning at the postmortem examination disclosed that the woman was killed by strangulation.Information was sent to the City Police and efforts to trace the sender ofthe parcel, resulted in the discovery of P.Ws. 25 and 26 the porter andassistant parcels' clerk. They gave some identification marks besidesexpressing their ability to identify the person, and vigorous attempts weremade to trace the sender. The accused removed to P.W. 20's house onthe 17th and though it was taken for a month and the rent paid inadvance, the accused left it on the night of the 18th leaving behind someof his things including his tuft. He arrived at P.W. 18's house in a rickshawabout 5 A.M. on the 20th with a trunk and bedding, and asked P.W. 18 tolet him a room. P.W. 18 replied that he had no rooms to let and theaccused who had high fever stated that he came there as he could notfind his relations. He was allowed to rest himself as desired, and he leftthe house about 10 A.M. He returned in the evening saying that he couldnot find his relations and P.W. 18 permitted him to sleep in the house thatnight. He left about 12 O'clock on the 21st leaving his things behind, andthe Police arrived about 2 O'clock. The witness told them that the man ofthe description wanted by them had left earlier, and the accused returnedbetween 2 and 3 P.M., on the 23rd January. He was arrested soon afterby P.W. 42 the Inspector and Exhibit KK the order of the Sub-Collector,dated 22nd December, 1933, intimating that he would be dismissed fromservice if evidence was not produced before 31st January, 1934, that hehad cleared his debts was found in his trunk. M.Os. 6, 7, 8, 14, 15 and 16the jewels and silver articles pledged by the accused between 14thJanuary, 1934 and 20th January, 1934 and identified to be those of thedeceased, were recovered on his information from P.Ws. 8 and 14, and he



was taken in a car to P.W. 10's shop. He pointed out P.Ws. 10 and 11,who confirmed his information, and M.O. No. 29 the mattress wasidentified by them subsequently.

39. It was at P.W. 10's shop that the statements in question which areset out below were made and they came on record in the followingmanner. P.W. 10 was questioned in examination-in-chief whether thePolice came to him in connection with the case, and he stated "P. W. 42came with the accused and the accused pointed out the shop saying thatit. was in that shop that he purchased the mattress". It was elicited incross-examination that he had sold some other articles on the 12thJanuary and in reply to a further question whether he remembers thepurchasers, P.W. 10 stated "It is because 10 or 11 days after he made thepurchase, he came to the shop and himself pointed out the shop saying,that it was at this shop that he purchased, adding 'I paid an advance of 8annas and I subsequently paid Rs. 2-8-0', that I remember him." He wasasked next whether the accused stated in his presence that it was theshop in which he purchased, and the witness stated "The car stopped infront of my shop at about 4 P.M. They all got down and entered the shop,and as soon as they entered the accused looking at me said 'I purchasedfrom him on the 12th a coir mattress'. He was then asked whether P.W. 42stated anything, and the answer was "It was the accused that waslooking at me and asking me 'I purchased from you, is it not, on the 12th,a coir mattress,'" The cross-examination was pursued and the witnessstated "The Police then asked me to take the account and I showed theaccount. When I looked into the account I found that on the 12th therewas a sale of coir mattress and two pillows for Rs. 3-12-0 and another coirmattress for Rs. 3 and I said therefore I did not know whether it was theone or the other, that I sold the accused. Thereupon the accused said 'Ipurchased it of you for Rs. 3. I paid an advance of 8 annas and I sent thebalance of Rs. 2-8-0 through the c oolie woman'. P.W. 11 was asked incross-examination, whether she remembered the features of the accusedfrom what she saw of him on the date of purchase, and she stated "Theaccused himself mentioned me and said that it was a woman wearing acoral necklace". Then in answer to a question by Court, she stated "whenI went there the accused said 'It was this woman that carried the article'and P.W. 42 deposed in examination-in-chief that he discovered P.W. 11on being pointed out by the accused. He was cross-examined about it andhe stated "It was only after the accused pointed out P.W. 10, and whilewe were coming out, the accused pointed out that woman with coralbeads on her neck and said that that was the coolie who carried themattress.

40. The purchase of the coir mattress in which the corpse was packed andits carriage to the alleged scene of crime through the coolie woman on the12th January suggest the inference that the accused committed the crimeand the contention that the statements in question do not amount to aconfession is untenable. They were made while in the custody of thePolice-officer and their admissibility depends upon the correctinterpretation of Section 27 of the Indian Evidence Act which is in theseterms: "Provided that when any fact is deposed to as discovered inconsequence of information received from a person accused of anyoffence in the custody of a Police-officer, so much of such informationwhether it amounts to a confession or not, as relates distinctly to the factthereby discovered may be proved.' The discovery of a fact as the resultof the information is a condition precedent to the reception in evidence ofthe information or any portion thereof, and as pointed out in the Full



Bench decision in Sukhan v. The Crown (1929) 10 L. 283 though theexpression "fact as defined by Section 3 of the Indian Evidence Actincludes not only the physical fact which can be perceived by the sensesbut also the psychological fact or mental condition of which any person isconscious, it is in the former sense that the word is used in Section 27.The fact discovered should therefore be a material and not mental fact,and as observed by the learned authors Woodroffe and Ameer Ali in theircommentary on the Evidence Act, "The word 'discovery' may either meanthe purely mental act of learning something which was not known beforeto a person, as the mere mental act of becoming aware of something afterhearing it stated or the physical act of finding upon search or inquirysomething or material fact the existence or the exact locality of which wasunknown till then. It is in the latter sense that the word is used in thissection, that is in the sense of a finding upon a search or inquiry ofarticles connected with the crime or other material fact, the reason beingthat it is only this kind of discovery which proves that the information inconsequence of which the discovery was made is true and not fabricated".The fact discovered may thus be the stolen property, the instrument ofthe crime, the corpse of the person murdered or any other material thing,or a material thing in relation to the place or the locality where it is found,and it should confirm the information though its connection with the crimeand identification are always provable aliunde. The discovery of a witnessto the crime or act of the accused on his formation would not be adiscovery of a fact within the meaning of the section, vide PalaniandiVelan v. Emperor (1934) M.W.N 601 and confirmation or otherwise of thestatement of the accused by the witness discovered cannot make anydifference. Further Section 162 of the Code of Criminal Procedure prohibitsthe use of any statement by the witness to the investigation officer, andthe discovery should in my opinion be of some concrete fact. The karasbeing found in the possession of the pledgee in Sukhan v. 'The Crown(1929) 10 Lah. 283 would be a fact discovered in this sense and so would,the finding of the person kidnapped and wrongfully confined at the placementioned by the accused in the illustration suggested by the CrownProsecutor. There would be no discovery in those cases if the karas andperson kidnapped were not found, and it is well settled that even when athing is discovered the statement of a prisoner as to how he came by itcannot be proved. The statements in this case are of this nature and theywere verified by P.W. 42 the Police-officer by examining the witnessespointed out by the accused. He cannot be said to have discovered anyfact within the meaning of Section 27 of the Indian Evidence Act and inmy opinion the statements in question are not admissible in evidence.

41. The case has therefore to be reviewed on the evidence properlyadmissible, and as pointed out in Emperor v. Panchu Das (1920) I.L.R. 47Cal. 671 it is incumbent on this Court to investigate whether independentlyof the evidence improperly admitted there is sufficient evidence to justifythe conviction. The evidence of P.Ws. 10 and 11 regarding the sale of No.29 the coir mattress to the accused and its carriage to No. 24,Peddunaicken Street is admissible, though the statements of the accusedrelating thereto are not, and the case of the accused was that he did notmake those statements. The statements were not proved aliunde and itwas pointed out to the jury that proof of the purchase and carriage ofthe mattress depended upon credibility of P.Ws. 10 and 11 who speak toit. The bringing on record of the statements in question through thesewitnesses could not under the circumstances have made any difference,nor would it be proper to reject their evidence because they recollectedthe incident and features of the accused only after being reminded by him.



The shop-keeper was not cross-examined regarding the identity of themattress and the disinterested evidence of P.Ws. 2 and 3 shows that theaccused and the deceased were living together at No. 24, PeddunaickenStreet from the 23rd December, 1933. They swear to the presence of thedeceased in the house till about 7 P.M. on the 11th January, 1934 andundue importance cannot be attached to the opinion of P.W. 38 theMedical Officer that death would have occurred about 5 or 6 days prior toISth January, 1934, the date of the post mortem examination. The periodof death cannot be ascertained with accuracy from the progress ofputrefaction and as pointed out in Taylor's Medical jurisprudence, VolumeI, page 294, warmth is usually retained when a person dies from asphyxia.Putrefaction would in such cases be more rapid and the contents of thestomach indicate that the woman was strangulated some hours after hernight meal. The tenants of the ground floor and neighbours must havebeen asleep at the time nor was it suggested that she could have raisedany cry. The packing should have commenced sometime later and it didnot require an expert to stitch the corpse in gunny bags and othermaterials. The suggested impossibility of removing the package along thestaircase was not emphasised at the trial and the dimension of thepackage as appearing from the evidence in 2\ feet by 2 feet by 20 inches.It is in evidence that trunks and deal-wood boxes were removed along thestaircase subsequently, and P.Ws. 25 and 26 swear that the accused wasthe sender of the parcel. They identified him at the identification paradeon the 24th January and the accused had a crop in front prior to theremoval of the tuft on the 14th January. Ex. KK. shows that the accusedwas hard pressed and the pledge of M. Os. 6, 7, 8, 14, 15 and 16 thearticles of the deceased by him between the 14th and 20th Januarysupplies the motive. His subsequent conduct including his falseexplanations to P.W. 2 also points to his guilt and independently of thestatements in question, the jurors who found the accused guilty wouldhave come to the same conclusion. There is therefore no ground forinterference and the conviction and sentence will stand.

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