PUBLIC PROSECUTOR Vs. OOR GOUNDAN ALIAS SOMMALAI GOUNDAN

JUDGEMENT

(1.) This is an appeal preferred by the Provincial Government against the acquittal of the accused in Sessions Case No. 73 of 1946 in the Court of Session, Salem Division. The charge against the accused was that on or about the 1 May, 1946, they intentionally caused the death of Aran alias Arumuga Padayachi in furtherance of their common intention to kill him. On the evening of the 4 May, the corpse of the deceased Aran was found in the river bed close to the village of Porasalapatti. The head had been severed and it was found at some distance from the trunk. Information of this occurrence was given by P.W. 4 to P.W. 5, the Village Munsiff, and the post mortem examination disclosed an incised injury on the abdomen and another in front of the left armpit. In the opinion of the doctor these injuries could have been caused with a knife like M.O. 1 which was recovered as a result of a statement made by the first accused to the police. The part of this statement marked by the learned Sessions Judge under Section 27 of the Indian Evidence Act, according to the view taken by this Court of that section was this, Before burying I had cut the belly asunder with the knife. There was a silver waist cord on the waist of the corpse. I removed it and gave it to my brother-in-law. I have buried in the margin of the eastern ridge of my sugarcane garden the knife with which Aran's neck was cut. If you come with me I shall take and give it. The second accused is the brother-in-law of the first accused and from him a silver waist cord was recovered. There is no direct evidence and the prosecution relied entirely on the statement mentioned above.

(2.) The learned Sessions Judge however thought it was permissible to peruse the entire statement and having regard to the fact that the portion that was not admitted in evidence was to the effect that Aran had been throttled to death before his head and belly were cut, he considered that the charge of murder had not been proved against the first accused. As regards the second accused he took the view that there was nothing in the evidence to connect him with the murder. The possession of the silver waist cord he held could make out a case of misappropriation or theft. In this view the learned Judge came to the conclusion that the accused were not guilty and therefore acquitted them.

(3.) The main ground in the memorandum of appeal is that the learned Judge should not have referred to the inadmissible portion of the statement made by the first accused to the police, but should have confined himself to the portion actually admitted and that as there was no evidence that the deceased was throttled to death before his head was cut off, the acquittal was not justified. But according to the decision of their Lordships of the Judicial Committee in Pulukuri Kotayya V. King-Emperor (1947) 1 M.L.J. 219, where the view of this Court on Section 27 of the Indian Evidence Act was overruled, the only portion of the statement made by the first accused to the police that can be admitted in evidence is this, I have buried in the. margin of the eastern ridge of my sugarcane garden the knife. If you come with me I shall take and give it. This statement does not connect the accused with the murder. The chemical analysis of the knife did net disclose stains of human blood. There is no other evidence connecting the knife or the accused with the murder. In the circumstances the learned Assistant Public Prosecutor does not rightly press this appeal We therefore dismiss it.