(1.) THIS referred case and the connected appeal arise out of Sessions Case No. 137 of 1969, wherein the Sessions Judge of Salem convicted and sentenced the appellant herein, Appu alias Ayyanar to death, subject to confirmation by this court, under Section 302, Indian Penal Code (seven counts) for the seven murders alleged to have been committed by him on the mid-night of the 27th day of May 1969 at Ennaikaranpudur, a village in Salem District.
(2.) THE appellant is the younger brother of the deceased Periaswami. They were living together in adjoining huts. From some time past, there had been strong ill-feeling between them, on many scores. Ten days prior to this occurrence, deceased Periaswami trespassed into the appellant's land and sowed cholam. This was the last straw. Few days subsequent to this incident, the appellant went to the hut of his brother, accompained by Sorien (P. W. 6 ). This was with the object of murdering him. P. W. 6 refused to participate. This attempt ended there. On the night of 27-5-1969 Periaswami was sleeping in his hut in a cot. Muthammal, his wife, was sleeping in another cot. Their children, five in number, were lying on the ground. The appellant went to the hut with the bill-hook (M. O. 1) which he had taken from the house of his sister Pappathi (P. W. 7) P. W. 4, Periaswami his relation, also accompanied him upto this house without knowing the purpose for which the appellant had gone. The appellant then handed over M. O. 2 knife to p. W. 4 and asked him to guard outside. When P. W. 4 questioned him, he disclosed his design to commit the murders. P. W. 4 got terrified. But, he could not do anything, because the appellant threatened to do away with him if he made any noise. The appellant then got into the hut and cut Periaswami in the neck and other parts of his body. Similar cuts were given by him to Muthammal and the other children who were sleeping. These persons, who were thus injured, succumbed to the injuries shortly thereafter at the spot. When this was happening in this hut, P. W. 4 rushed to the adjoining hut, and apprised P. W. 1, the appellant's wife, as to what her husband was doing. By that time, the appellant also arrived at that place, told his wife as to what he had done and left asking her to look after the children. P. W. 2, Royamuthu, and P. W. 3, Ayyammal, his wife, who were in that hut at that time, also heard what he said. Having thus taken leave of his wife, the appellant came out of the house, with the weapons and followed P. W. 4 who was going ahead. On the way, at a filed near an odai at Koodamalai, the knife M. O. 2 was thrown by him. They continued their walk for some more distance and the bill-hook M. O. 1 was then dropped by the appellant in a well near a burning ghat. They parted company at this spot and the appellant took leave of P. W. 4 saying that he was proceeding to Salem to see his advocate. P. W. 4 went home. * * * * (After discussing the facts and the evidence His Lordship proceeded.)The learned Sessions Judge who had seen him (P. W. 4) in the box has chosen to accept his evidence and we also do not have any reason to differ from him in the assessment of his evidence. His evidence establishes that these murders were committed by the appellant.
(3.) NEXT we have in the case the extra-judicial confession made by this appellant to his wife P. W. 1 in the presence of Royamuthu (P. W. 2), his wife Ayyammal (P. W. 3) and Periasami (P. W. 4 ). P. W. 1 is the wife of the appellant and in fact the first report in the case, viz. , Ex. P-10 is from her. Ramanujam (P. W. 13), the village headman had recorded it at 7-30 a. m. on 28-5-1969. She was also examined at the inquest at one-30 p. m. When examined in the Sessions Court, she has denied having made any statement like Ex. P-10 and she has been treated as hostile, with the result Ex. P. 10 cannot be taken as substantive evidence in the case. Even otherwise, under Section 122 of the Evidence Act, she cannot be compelled to disclose any communication made to her. Communications between the husband and wife during coverture is privileged and its disclosure cannot be enforced. This protective provision is based on the wholesome principle of preserving domestic peace and conjugal confidence between the spouses. In the decision reported in Nawab Howladar v. Emperor, (1914) 23 Ind Cas 511, a widow had disclosed certain communications which had been made to her by her husband in connection with a murder. This evidence of hers was excluded by the high Court on the ground that she could neither be compelled nor permitted to disclose such communications in view of Section 122 of the Evidence Act. Jenkins, c. J. , observed that the prohibition enacted by this section rests on no technicality that can be waived at will, but is founded on a principle of high import, which no court is entitled to relax. This was also the view expressed in Mt. Fatima v. Emperor, AIR 1914 Lah 380 and in Mt. Ihsanan v. Emperor, 81 Ind Cas 271 = (AIR 1923 Lah 40 ). In State v. Norendranath Majumdar, it was held that the communication between the husband and the wife did not come within any of the exceptions to Section 122 of the Indian Evidence Act, and was as such privileged and that the wife could not be called as a witness and compelled to disclose the same. In the decision Ram Bharosey v. State of U. P. , it was held that the statements of the accused to his wife, that he would give her jewels and that he had gone to the house of the deceased to get them, were plainly inadmissible under the provisions of Section 122 of the Evidence act.;