IN RE: GANGAVVA AND ANR. Vs. STATE

JUDGEMENT

(1.) THE three appellants were charged in the Court of the Sessions Judge of Bellary under Section 302 of the Indian Penal Code with the murder of a boy aged 6 years, named Ramappa, by cutting his throat. The learned Sessions Judge convicted the first and second appellants of the offence with which they were charged and sentenced them to death. He however accepted the explanation by the third appellant in his confessional statement that he took no part in the murder and was not aware that it was going to be committed, and so found him guilty only under Section 201 of the Indian Penal Code, because he had buried the knife with which the murder was committed. He was sentenced to 5 years rigorous imprisonment.

(2.) AS the offence was committed in the house of P.W. 4 during the absence of himself and his wife and there were no persons in the house other than the murdered boy and his little sister aged 3, there are no actual eye witnesses of the murder. But there is important circumstantial evidence of persons who saw the three appellants enter the house of P.W. 4 and who saw them leave again. P.W. 5 was working in his rick yard only 100 yards away from the house of P.W. 4; and he saw the three appellants both enter the house and leave it. P.W. 6 did not actually see the accused leaving P.W. 4's house, but he saw them at 2 or 3 yards from the house as they were emerging from the back -yard. P.W. 7 saw the accused going from their village towards the village of P.W. 4 and asked them where they were going. The third appellant replied that he was going to the house of P.W. 4 to get the two bags of cholam for the first appellant. P. Ws. 8 and 9 were grazing bulls and saw the three appellants going in the direction of P.W. 4's village. They, too, asked the appellants where they were going and why, and the third appellant gave the same answer to them as he had given to P.W. 7. P.W. 4, the father of the murdered boy, was not absent for very long from his house. He left late in the afternoon and came back just at dusk; and it was during his short absence that the three appellants entered the house of P.W. 4 and it was during that time that the boy Ramappa was murdered. It is a reasonable conclusion to draw from the circumstances that the three appellants committed the murder. In the Courts below they all denied that they entered the house of P.W. 4; but we see no reason at all for not accepting the disinterested evidence of these five witnesses.

(3.) IT has been argued that the above statement is not a confession at all, because the third appellant did not implicate himself in any way; but we have no doubt that it is a confession of an offence punishable under Section 201, Indian Penal Code, for he admittedly buried the knife in order to conceal evidence of the murder. The more important question, however, is whether this statement, which amounts to a confession of an offence punishable under Section 201, Indian Penal Code, can be used against the first and second appellants in the charge under Section 302, Indian Penal Code. The learned Public Prosecutor argues that it is admissible in evidence; and his line of reasoning is this : when a person is charged with a serious offence, he is also charged by implication with every offence comprising any combination of circumstances which may form the constituents of the major offence; so that when a person is tried for murder, and part of the evidence of the murder is the concealment of the weapon with which the murder was committed, then the person charged with the murder is also charged by implication with an offence punishable under Section 201, Indian Penal Code : the confession of this minor offence by the third appellant could therefore be used against the other appellants, because they were charged with the minor offence also; if it was admissible against the other appellants, then it can be taken into account against them for all purposes, even though they might be charged with the major offence and convicted of it. In In re Manicka Padayachi1, the learned Judges had to consider whether a confession of an offence that was punishable under Section 328, Indian Penal Code, could be used against the other accused to support the evidence that an offence had been committed by him punishable under Section 328, Indian Penal Code, when the charge preferred against him was under Section 302, Indian Penal Code. The learned Judges differed; and so the matter was referred to a third Judge, Oldfield, J. He pointed out that the person who made the confession had been convicted only under Section 328, Indian Penal Code and that that was the section under which the other accused, if the confession were accepted, would also be convicted. That case is therefore not on all fours with the present case; but the learned Public Prosecutor relies on certain obiter dicta to be found in the judgment. The learned Judge said: