ATHAYEE Vs. STATE

JUDGEMENT

(1.) THESE related appeals are by five accused, who were tried before the learned Sessions Judge, Salem, with regard to the alleged murder of a certain man named Oorkaran alias Subbu Goundan. Accused 1, who is a woman was convicted of this murder, and sentenced to imprisonment for life. The other accused were not charged with complicity in the murder itself. But all the five accused, including accused 1, were separately convicted ot causing the disappearance ot the evidence of murder, in order to screen the offender from legal punishment, in furtherance of a common intention shared by all, under Section 201 read with Section 34 I. P. C. On this conviction, each of the accused was sentenced to undergo rigorous imprisonment for two years.

(2.) AT the outset itself, we may observe that the joint trial of these persons does appear to have worked a certain hardship, as stressed by the learned Counsel for the accused, Sri V. T, Rangaswami Aiyangar. The hardship is not a legal infirmity, since it could be urged, with some plausibility, that the joint trial was not vitiated by any error of law; the charge under Section 201 read with Section 34, I. P, C. applies to all the accused, including accused 1. But, in fact, it has occasioned a real disadvantage or injustice, As we shall show a little later, the convictions rest, substantially, upon the evidence of the approver, P. W. 1, which is sought to be corroborated by a judicial confession of accused 2 (Ex, P. 18 ). and by discoveries made in consequence of information given by accused 2, proved under Section 27 of the Indian Evidence Act. But the point which the learned Sessions Judge seems to have missed is that this corroboration applies to accused 2 and that, with regard to the other accused, it is corroboration of the weakest kind, since it is really the statement of a co-accused, admissible under Section 30 of the Indian Evidence Act. Further, the learned Sessions Judge has also overlooked the vital circumstance that the evidence ot the approver consists of two parts, or almost independent incidents of a narrative. The first part is the murder itself, concerning which the approver, P, W. 1, does not speak; he did not witness it, and he merely speaks to an extra-judicial confession made in his presence by accused 1. That is not corroborated as far as we are able to see, by any other piece of evidence. For instance, it is equally conceivable that accused 2, or even accused 3, or accused 4 or accused 5, might have committed the murder instead. The other part consists of the narrative about the disposal of the body, and it is this alone which may derive some corroboration from the evidence and that too only with reference to accused 2, The failure to distinguish the necessity for independent corroboration in material particulars, as far as the actual murder is concerned, apart from the need for corroboration of the other part of the narrative about the disposal of the body, has, in actuality, led the learned Sessions Judge to a very imperfect appreciation of the true issues presented by this case, That, in its turn, has arisen largely from the joint trial of these accused.

(3.) THIS apart, the vital question for our consideration can be presented within a very brief compass. It must immediately be conceded that the deceased Oorkaran alias Subbu Goundan seems to have been a very unlovely character, to say the least. He was a drunkard and profligate, and many of the witnesses deposed that they went about it in mortal fear of this man. This man was not merely keeping accused 1, after the mental illness of his first wife, but was also attempting to tamper with the chastity of the newly married wife of accused 2, who is the son of accused 1 by her former husband. Concerning this, we have the very definite evidence of witnesses, like P. W. 7, and it is clear that the deceased was molesting accused 2's wife, and making life unpleasant for every one connected with him. Since the murder is supposed to have occurred at the field shed ' of accused 1, where the deceased was merely frequently visiting her, it cannot even be said that the circumstances relating to the murder of the deceased must necessarily have been known to accused 1, her son (accused 2) or to any of the other accused. The deceased was not a permanent resident of this shed along with accused 1 and 2, and, conceivably, he might have been murdered elsewhere. As far as motive is concerned, accused 2 has the strongest motive, and not accused 1 or the other accused. It is true that P. W. 1 deposes that, when he came to the field shed at 9 p. m. that day, he saw Subbu Goundan (deceased) lying dead on the cot M. O. 1, and that accused 1 then confessed that she had hit him with the piece of timber (M. O. 2) and caused his death. But there were no blood-stains on this weapon. This evidence of P. W. 1, concerning the confession of accused 1 to him, stands totally uncorroborated by any other testimony on the record.