G GANGADHARA PILLAI Vs. STATE

JUDGEMENT

(1.) THE accused who is the appellant in this Criminal appeal was tried before the Additional Sessions judge at Trivandrum in Sessions Case No. 35 of 1950. THE charge against him was that he had committed murder by killing his elder brother Vasudevan Pillai on the night of 27. 1. 1124. On hearing the evidence the learned judge reached the conclusion that the charge under S. 301 of the Travancore Penal Code is made out against the accused. He accordingly convicted him under that Section and sentenced him to undergo rigorous imprisonment for life. In respect of this conviction and sentence, the records are submitted to this court for confirmation as required by law. x x x x

(2.) THE case for the prosecution was that the father of the accused and the deceased who died a few weeks prior to the incident, had properties belonging to him, that the deceased was from his child-hood exhibiting undesirable tendencies and as he grew up he was leading a wayward life. THEre were occasions when he had assaulted his parents and for these reasons the father when he executed his will did not make any provision for the deceased. He had a wife who is P. W. 7, but the evidence shows that he was neglecting the wife and his children by her. On the 27th of Chingom the prosecution case is that the deceased had gone to the house where his mother P. W. 1 and the accused were residing and he asked for cash because he did not have money with him. THE suggestion is that he contemplated filing a suit for setting aside the will executed by his father and he wanted the money to start legal proceedings. Another suggestion made is that the day following was onam day and he wanted cash in order that he may make purchases for himself and his family. THE accused who was then present told him that he could not spare any cash. As a result the accused was assaulted by the deceased and they were engaged in a scuffle in the verandah of the house. THEn the mother came out and pacified the deceased and told him that she would see that some cash was paid to him the following day. THEre is also evidence to show that Sukumara Pillai p. W. 11 who is another younger brother of the deceased was also attacked by him on the same day in the house when he accosted him on his arrival there. After going away from the house, the deceased returned late in the night. At that time, the accused was sleeping on the verandah of the house. Before he went to bed, he had a talk with his mother who reminded him about the request made by the deceased for cash and also reminded him of the fact that he would be arriving on the following day for getting it. He does not seem to have paid any heed to this advice, but took a chopper from inside the house and keeping it under his mat went to sleep in the verandah. Some time later the deceased also arrived in the house. He took his bed at the northern end of the verandah. THE accused was sleeping at the southern end. After some time P. W. 1 the mother of the accused and the deceased and P. W. 2 who as already stated is described as a servant working in the house heard the sound of groans in the verandah. THEy opened the window through which they could see what was happening in the verandah and their evidence is that they saw the accused attacking the deceased with M. O. IV the chopper. THE post mortem certificate shows that the neck of the deceased was almost completely severed from the body. THE main blood vessels, the eosaphaegus and the wind-pipe all these were cut in front on the neck and there is no doubt that death must have followed soon after this gruesome attack. Subsequent to the attack, the accused as already stated called p. W. 2 out of the house and after threatening him with instant death if he did not comply with his request, he compelled him to assist him to carry the dead body to the other property belonging to the family and there both these people interred the body. THEre was no information given to the Police until the 31st of Chingom. But in the interval there were ugly rumours afloat in the locality and the suggestion is that P. W. 11 Sukumaran Pillai induced the accused to go and make a clean breast of what he had done in order that there may not be further trouble in the matter. Accordingly, the accused went to the Police station at 6 P. M. on the 31st of chingom and reported all that had happened and surrendered himself. He was placed under arrest. He also expressed his desire to make a confession and thereupon the police officers in the Police Station took him to a competent magistrate who recorded his confession at 11 P. M. on the same night. On the following day, namely, the 1st of Kanni, as a result of information given by the accused, the Police went to the place where the body was burried and had it exhumed and the prosecution case is that P. Ws. 1 and 2 identified the body as the body of the deceased. THE body was sent for post mortem examination. THE post mortem certificate has been produced and it indicates that death must have been caused as a result of the violent attack made on the body. THE doctor says that death was due to syncope as a result of the attack.

(3.) THIS confession was not retracted by the accused while the preliminary enquiry was going on in the committing Magistrate's court. But when the trial in the Sessions court began he retracted it. In the committing magistrate's court the Magistrate who recorded the confession was examined as a witness. The accused had the opportunity of cross examining him but no questions were asked in cross examination. Subsequent to the order made by the committing Magistrate, this gentle man who recorded the confession who was then only officiating as Magistrate, seems to have vacated office and to have left the State for some place in Northern India and it was stated that his whereabouts were not known. On that evidence that his whereabouts were not known the evidence given by the witness in the committing Magistrate's Court was admitted as evidence in the trial and marked as Ext. AB. No doubt in the case of a retracted confession a great deal of caution has to be exercised in deciding what value should be given to the statements contained in the confession. But here the other circumstances already adverted to, especially the fact that the body was traced as a result of information furnished by the accused we are not satisfied that the trial court has erred in law in taking notice of the admissions made by the accused in Ext. AB which was the confession marked at the trial.