Govinda Menon, J. -
(1.) 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 under Section 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 under Section 460, I. P. C. was the acquittal of the accused under Section 302 read with Section 34, I. P. C. and therefore the State has preferred C. A. No. 176 of 1953 questioning 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.
(2.) 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 Poojari 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 admissible 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 addition 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 under Section 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. Singaram 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.
(3.) 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 under Section 460, I. P. C. and Section 380, I. P. C.;