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Judgment
Ayling, J.—The case has been so exhaustively dealt with by the learned Judges who heard the appeals (not to mention the very careful
judgment of the Sessions Judge) that it is unnecessary for me to set forth the particulars or the arguments for and against the convictions. I shall
therefore confine myself to stating briefly the conclusions to which I have arrived after the best consideration I could give to the matter.
The difficulty of decision arises chiefly from the lack of definition"" of the term "" slave"" as used in Section 370 of the Indian Penal Code. Both the
learned Judges have held, (and I entirely agree) that it includes something very far short of slavery in its most extreme forms wherein the master has
absolute and unlimited power over the life, fortune and liberty of the slave. This is clearly the view of the Courts in the two reported cases in Which
the question is discussed Empress of India v. Ram Kuar ILR (1880) All. 725 and Amina v. Queen Empress ILR (1884) Mad. 277 What it does
require is not so easy to say. To quote from the judgments of the Allahabad Full Bench in the first named case, Oldfield, J. says that Section 370 of
the Indian Penal Code and the cognate sections were intended for the suppression of slavery "" in any modified form, where an absolute power is
asserted over the liberty of another."" Stuart C.J., puts it somewhat differently and regards Section 370 as directed against ""attempts to place
persons in the position of slaves, or to treat them in a way which is inconsistent with the idea of the person so treated being free as to his property,
services or conduct in any respect."" If much stress is laid on the word ""absolute"" in Oldfield, J''s definition, it may be argued that the latter is
narrower and stricter than that of Stuart, C. J. On the other hand the learned Judges do not seem to have been conscious of any material difference
of view and their judgments are treated by a Bench of this Court in Amina v. Queen Empress ILR (1884) M. 277 as a consistent and homologous
interpretation of the law which should be followed, I shall not venture on an independent definition of my own but would prefer to deal with the
case in the light of both those above quoted-although this may involve somewhat detracting from the force of the word "" absolute "" in the first and
of the penultimate word "" any "" in the second. As a matter of fact, the circumstances of this case as I view them would justify the application of
either definitions taken singly.
Mr. Adam, who appeared for the Public Prosecutor has argued and I think, rightly, that in determining the nature of the transaction, the Court
should look primarily to the terms of the document in which it is embodied and secondarily to the surrounding circumstances as indicating whether
the parties had in mind something different from what is set-forth in the document. In a Civil Court, Section 91 of the Indian Evidence Act would
probably be a bar to such a course, if the terms of the contract were in question: but in connection with a criminal charge, in which, the intention of
the accused persons has to be established, it is surely legitimate to look outside the terms of the document, and this course has been followed both
by the Sessions Judge and by the learned Judges in appeal.
Looking then to the words of Exhibit B, this document appears to me to evidence nothing more nor less than the sale of Vellan and his offspring
as mere chattels. The word, '' Jenmam '' is defined in Gundert''s Malayalam Dictionary as meaning "" hereditary proprietorship"" and is the same term
used in reference to land held in fee simple or subject only to the payment of Government Revenue. The double reference to Vellan''s "" heirs "" and
his "" offspring that may come into being"" strengthens the conclusion. The phrases used, mutatis mutandis, would be not inapplicable to the sale of a
cow and its calf, born or unborn : and I do not think this conclusion is affected by the clause specifying that the vendee should get work done by
the said Vellan and his offspring.
If we confine our attention to the terms of Exhibit B, I think it can only be viewed as a sale of the man as if he were a beast and as certainly
satisfying either of the definitions of the learned Judges in the Allahabad Case.
I pass to the other circumstances of the case, as throwing light on what the parties had in mind. In favour of appellants, may be mentioned the
comparatively mild terms of Vellan''s service under 2nd accused as described by him in his evidence. I agree with Abdur Rahim, J. that there is
nothing in 2nd accused''s treatment of Vellan up to May 1913, indicative of slavery in even a modified form. Vellan received the ordinary wages
for his work and spent them as he liked; he was not allowed to work for others, but his master prevented him from doing so by the simple
expedient of giving him a job of work of his own whenever Vellan wanted to go elsewhere. This, however, is hardly conclusive. 2nd accused may
have been a lenient master as long as things went smoothly: but it is of more importance to consider his conduct, when the servant chose to assert
his independence. This happened in May 1913, when Vellan who had got into debt, executed a bond, Exhibit A, binding himself in consideration
of a loan of Rupees 8 to work for 1st accused only instead of his old master. The terms of this document are so stringent as to practically bind
Vellan to 1st accused''s service for life without hope of redemption.
Now what was 2nd accused''s conduct at this juncture? It is described by Vellan himself as prosecution 1st witness : his evidence is accepted
by the Sessions judge and I do not gather that either of my learned brothers took a different view of the evidence of this or the other prosecution
witness. Certainly for my own part, I see no reason to differ from the Sessions Judge''s appreciation of the evidence. According to prosecution 1st
witness, 2nd accused at once objected to the payment of the Rupees 8, the loan under Exhibit A, and announced his intention of selling
prosecution 1st witness out and out to 1st accused ("" I shall execute a jenmam document selling you to Koroth Mammad and get money for it"").
Apparently no money at all was advanced under Exhibit A, then or later although an exparte decree was subsequently passed on it (Exhibit J); but
ior the consideration therein provided for and an extra Rupees 2 all paid to himself, 2nd accused executed the jenmam sale, evidenced by Exhibit
B. Prosecution 1st witness says "" after the sale, 2nd accused said to me '' I have no more right in you.'' He made me over to 1st accused and
handed over the document,"" ""2nd accused said to 1st accused, I shall execute a jenmam deed to you for this Cheruraan, you need not pay the
consideration for the advance document"" (Exhibit A). ""After 2nd accused received the money and went away, 1st accused said to me '' My fine
fellow I have bought you in jenmam.'' I said '' I don''t understand what you mean.'' He said '' You don''t understand because you are uneducated''.
If this account be true, there is nothing in the surrounding circumstances to detract from the effect of the terms of Exhibit B: and the intention of
the parties at the time of the latter''s execution is what we have to consider-not the treatment of prosecution 1st witness at an earlier period.
All the evidence on record as to what followed is adverse to the defence : it goes to show that 1st accused beat Vellan, tied him up like an
animal that had strayed, and behaved generally in a manner not dissimilar to that of a master of a slave in the most primitive sense. I attach no
undue weight to this; it has only very secondary bearing on 1st accused''s intentions at the time"" of the bargain and none on that of 2nd accused.
But in so far as it is relevant at all it is certainly against the defence theory of the transaction set up on 1st accused''s behalf. The fact that 1st
accused was subsequently so foolish as to sue on Exhibit B. has no significance. No doubt he had never heard of Section 370 of the Indian Penal
Code and did not realise that he had brought himself within the scope of the Criminal Law. But ignorance of law is no defence: and the only
intention required by Section 370 of the Indian Penal Code is in relation to the position of the persons bought and sold. 2nd accused has elected to
deny the whole story-his execution of Exhibit B, and even the fact that Vellan was any time his servant. I have no hesitation whatever in rejecting
this defence as false.
I agree with Mr. Justice Napier, and concur in the order proposed by him.