KALIAPPA GOUNDAN Vs. EMPEROR

JUDGEMENT

(1.) The two appellants were charged in the Sessions Court of Coimbatore with having murdered a woman named Muthayee, the wife of the Ist, appellant on September 16 of last year and also with having caused evidence of the said offence to disappear by placing her body on the Railway line with the intention of screening themselves from legal punishment. They were thus charged firstly, under Section 302, Indian Penal Code and, secondly, under Section 201, Indian Indian Penal Code. The learned Sessions Judge convicted them of the offence of attempt at murder under Sec. 337, Indian Penal Code, under the first count and sentenced them to transportation for life. The appellants appeal against that conviction. The Public Prosecutor has presented a Memorandum of Criminal Appeal against that order of the learned Sessions Judge on the following grounds, namely, that the appellants ought to have been convicted of murder and that the learned Sessions Judge having found in para. 18 of his judgment that there was no doubt that the appellants intended to kill their victim, was wrong In convicting them only of an offence under Section 307, Indian Penal Code. It was in consequence of observations which &11 from us when the appellant's appeal first came before us that the Public Prosecutor presented his Criminal Appeal.

(2.) The prosecution case was that the 1 appellant who is a cart-driver arid the 2nd appellant a cooly are related to each other and that the two appellants decoyed the 1 appellant's wife Muthayee under pretence of taking her to see a sick relation of the 1 appellant at Koneripatti, strangled her on the way and put her dead body on the Railway line between Somanur and Vanjipalayam so that the train might run over it and obliterate all traces of their crime There is the evidence of P. W. Nos. 4 and 5, the former the mother of the deceased and the latter her father, that the 1 appellant had been married for about 15 years and that he was addicted to drink and used to ill-treat the deceased causing her often to seek refuge in their house. At about noon on the day of the occurrence the deceased took her two children to her parents, left them at their house and went away with the 1 appellant saying that she was going on a visit to Koneripatti where a relation of the 1 appellant lay ill. She, never reached Koneripatti and her body was discovered across the Railway line between Somanur and Vanjipalaym stations, Her head had been severed from her body and lay at some distance away. It is clear that her head was cut off by a passing train and that this train was the Blue Mountain Express. The deceased woman was last seen in company with the appellants at about 5-30 p. m. by P. W. No. 9 on a country road along (he southern side Of the Railway line. On this road he met Muthayee and the two appellants,, He asked them where they were going and they replied that they were going to Pollachi. Previously to this the deceased is shown to have been in the company of the appellants on a shuttle train which left Erode at 2-15 p. m. and arrived at Vanjipalayam at about 4 p. m. Then there is evidence that at Vanjipalayam the deceased was in the company of the appellants in a petty [shop belonging to P. W. No. 8. A little later the two appellants drank toddy at a toddy- shop half a mile away. At about 7-30 p. m. P. W. Nos. 10 and 11 arrived by c train at Somanur Railway Station. Together they started eastwards along the Railway line to go to their villages. Having gone about a mile they saw two persons getting down from the Railway track on its southern side. At this time P. W. No. 11 saw something black lying across the rails and drew his companion's attention to it. Immediately afterwards the Blue Mountain Express came past them and they found that what had appeared to them to be something black lying across the line was the dead body of a woman subsequently identified to be Muthayee. The body was naked and headless, the head being discovered about 60 feet away. A woman's cloth lay south of the line. They then ran after the two persons whom they had previously seen and these two persons began to run. Prosecution Witnesses Nos. 12 and 13 also pursued them and they were eventually caught at a level crossing by P. W. Nos. 14 and 15. These two men Avere the appellants: They are said to have been tipsy at the time. An examination Was made of the site and the land nearby and marks of a struggle were discovered by the Sub-Inspector at D and D- 1 on the plan where also was found M. C. a thali string. This place is on the country road 9 1/2 feet below the line to the south and there were marks of something having been dragged towards the Railway line. The prosecution case, therefore, was that the appellants intended to murder the deceased and that they decoyed her away to this spot and strangled her and then put her body across the Railway line so that it could be run over by a passing train and thus the traces of strangulation on the deceased's body would be obliterated and death appear to be the result either of suicide or accident.

(3.) On the question, of the murder of Muthayee by strangulation, in support; there was evidence of P. W. No. 1, the Sub-Assistant Surgeon in charge of: the Local Fund Dispensary at Palladami who conducted the post mortem examination and in Ex. G, the postmortem-certificate, expressed it as his opinion that, the death of the deceased was dueto-asphyxia. That being the medical opinion as to the cause of death, the prosecutions case was death by strangulation and not; by decapitation. There were of course no actual eye-witnesses to the crime and;; therefore, as regards the cause of death; the prosecution had to proceed on theory -although prima facie the evidence of witnesses other than P. W. No. 1 would, establish the case of murder by decapitation on the Railway line. Having regard to the fact that the deceased woman's head was cut off at the neck, it seems to me that all objective signs of strangulation on that part of the woman's body, if, there had been any, would have been obliterated by the decapitation. A different view of the cause of death was taken by Lieutenant Colonel Fraser, I. M. S. who was examined as a Court Witness as from the evidence of P. W. No. 1 it appeared that the death of the woman had probably been caused by decapitation- -at least that witnesses evidence appeared to the learned Sessions Judge to suggest that. Lieutenant Colonel Fraser stated as his definite view) that the case that the deceased was-first strangled to death and then decapitated by the train was inconsistent with the) appearances described in Ex. G-1. The"-learned Sessions Judge came to the conclusion that it could be safely taken that the deceased woman was alive when she was run over by the Blue Mountain Express and, therefore, that the prosecutions case that she had already been killed was; incorrect.