MUTHUSWAMI Vs. STATE OF MADRAS

JUDGEMENT

(1.) The facts of this case can be placed in short compass. The appellant Muthuswami has been convicted of the murder of Nachimuthu Goundan and sentenced to death. The evidence consists of three eye-witnesses and a retracted confession. The learned Additional Sessions Judge disbelieved two of the eye-witnesses, namely Hanifa (P. W. 2) and Ghouse (P. W. 5), and rejected the confession on the ground that it was not voluntary. But he believed the third eye-witness Jamal (P. W. 1) who he thought was corroborated by certain other evidence and based his conviction on that. He also convicted another accused Pongiannan, with whom we are not concerned, on the same evidence and sentenced them both to death.

(2.) The High Court considered that P. W. 1 was as unreliable as the other two eye-witnesses and so refused to believe him. But they thought the confession had been wrongly rejected and, believing it to be voluntary, they upheld the conviction relying on the confession alone. They acquitted the other accused Pongiannan because once the eye-witnesses were discarded the only evidence implicating him was this uncorroborated confession of a co-accused. The question is raised whether a conviction can be based on a retracted and uncorroborated confession.

(3.) We do not intend to answer this in a general way because on the facts of this case it is enough to say that it would be unsafe to act on this particular confession. The deceased was murdered about midday on 14-8-1949. The eye-witnesses P. Ws. 1, 2 and 5 and two more eye-witnesses who have not been called were examined by the police on the same day at the inquest. Despite that neither the appellant nor his co-accused were arrested. This may have been because they could not be found or it may be that the descriptions given were not enough for identification. That is conjecture. But what we do know is that none of the three eye-witnesses who have been called knew the accused before. They saw them for the first time in the actual act of committing the murder.