The King-Emperor vs Ramanuja Aiyangar

Cronish, J.—The learned Chief Justice acting under Clause 25 of the Letters Patent has reserved as a point of law for determination under

Clause 26 the question whether certain statements given in evidence at the trial of M. Ramanuja Aiyangar for murder were admissible. The

statements which are in question were made by the prisoner while he was in the custody of a police-officer at the shop of a witness P.W. 10, and

had relation to the sale of a mattress by that witness at that shop to the prisoner on the 12th January, and to the carriage of the mattress by a coolie

woman, P.W. 11 from the shop.

The circumstances in which the statements came to be made may be briefly narrated. It is in evidence that the murdered woman had left her

husband on the 4th August last year and from that date had been living with the prisoner at different places in Madras. From the 23rd December

until the evening of 11th January, which was the last occasion according to the evidence on which she was seen alive, the prisoner and the woman

were living together at 24, Peddunaicken Street. On the evening of the 12th a package was brought to Egmore Railway Station in a cart and a

luggage ticket taken for its despatch by train that night to Karunghuzhi by a man who has been identified as the prisoner. The package was not

claimed on arrival at Karunghuzhi next morning and lay in one of the station offices until the smell of it led to its being opened and to the discovery

of the body of the woman sewed up in a coir mattress. This was on the 14th. The medical evidence showed that the woman had been strangled.

The Police investigation began forthwith. The prisoner, who had moved from his lodging in Peddunaicken Street on the 13th, was arrested on : the

afternoon of the 23rd. The same afternoon, in consequence of information given by the prisoner, he was taken by a Police-officer, P.W. 42, to the

shop of P.W. 10, and it was there that the statements, the subject-matter of the point of law reserved, were made. - P. W. 10 and P.W. 11, it

should be observed, have identified the mattress found in the package round the body as the mattress which was sold to the prisoner on the 12th

January.

In examination-in-chief the shop-keeper, P. W. 10, deposing to the visit of the prisoner with the Police to his shop, said:

The accused pointed out the shop, saying that it was in that shop that he purchased the mattress.

The witness was cross-examined upon this, and he said:

It is because 10 or 11 days after he made the purchase he came to the shop and himself pointed out the shop saying that it was at this shop that he

purchased, adding ''I paid an advance of 8 annas and subsequently paid Rs. 2-8-0'' that I remember this man.

The learned advocate for the prisoner pursued this topic and in answer to further questions the witness stated:

The car stopped in front of my shop at about 4 P.M. They all got down and entered the shop, and as soon as they entered, the accused, looking at

me, said.

""I have purchased from him on the 12th a coir mattress""; and again:

It was the accused that was looking at me and asking me,'' I purchased from you, it is not (is it not?) on the 12th a coir mattress''? I replied to the

accused'' I will look into the account and tell you.

Witness then stated that he looked into his account book, and said:

When I looked into the account, I found that on the 12th, there was a sale of coir mattress and two pillows for Rs. 3-12-0 and another coir

mattress for Rs. 3 and I said therefore I did not know whether it was the one or the other that I sold to the accused. Thereupon, the accused said,

I purchased it of you for Rs. 3; I paid an advance of 8 annas, and I sent the balance of Rs. 2-8-0 through the coolie woman."" Thereupon he was

asked, ""So it was the accused that reminded you of the purchase. Otherwise you would not have known it""? And the witness''s answer was

Otherwise I could not have known it.

The coolie woman, P.W. 11, who was near the shop at the time of this visit on the 23rd, waiting for a job, in cross-examination said:

The accused himself mentioned me and said that it was a woman wearing a coral necklace.

In answer to a further question the witness said:

When I went there the accused said, ""It was this woman that carried the article,"" and again:

It is upon his mentioning it that I remembered. Pointing to me he said, ''It is this coolie.

The Police-officer, P. W. 42, in cross-examination as to when the prisoner pointed out the coolie woman said:

It is only after the accused pointed out Muhammad Kasim (P.W. 10) and while we were coming out, the accused pointed out that woman with

coral beads on her neck and said that that was the coolie who carried his mattress""''. The first question to be considered is whether the statements

made by the prisoner on this occasion amounted to a confession. I think they did. They come within the definition of a confession in Stephen''s

Digest of the Law of Evidence as an admission suggesting the inference that the prisoner committed the crime charged against him. It was the case

for the prosecution that the prisoner was the man who despatched the package containing the dead body in the mattress from Egmore Railway

station on the evening of the 12th. His admission,, therefore, that on the morning of the 12th he had purchased a mattress was a highly incriminating

statement.

The confession having been made by the prisoner when he was in police custody is ruled out by Section 26 of the Evidence Act. But it has to

be determined whether an}'' fact has been deposed to as discovered in consequence of the confession. If any fact, provided it is a relevant fact,

has been so discovered Section 27 permits so much of the confession as distinctly relates to the fact thereby discovered to be given in evidence;

the reason of the rule being that the discovery of the fact confirms the confession. The fact alleged to have been discovered in consequence of the

prisoner''s statements is that he purchased a mattress from P.W. 10 on the 12th January and had it carried from the shop by the coolie woman

P.W. 11. The Police-officer, P.W. 42, deposes to this discovery. The witness has deposed "" He (the prisoner) took me direct to that shop and

there pointed out Muhammad Kasim (P.W. 10) as the man from whom he purchased the mattress"". And, with reference to the coolie woman, the

witness stated that the prisoner pointed her out and said that she was the coolie who carried his mattress. If P.W. 10 and P.W. 11 had denied all

knowledge of the prisoner and his purchase, or had been unable to recollect anything of the incident, no fact would have been discovered in

consequence of the prisoner''s confession, and his confession would have been entirely groundless. But the consequence of the prisoner''s

statement was that the Police-officer discovered not merely a shop-keeper and a coolie woman, but that the one had sold a mattress to the

prisoner and that the other had carried it for him from the shop. The sale of the mattress and the carriage of it had, of course, to be proved like any

other fact. But inasmuch as P. W. 10 and P. W. 11 have deposed to the sale of the mattress to the prisoner, I think it can be reasonably said that

the discovery of the sale of a mattress to the prisoner on the 12th January was the consequence of the prisoner''s confession. It was the confession

that directly led to the Police-officer making the discovery. The circumstance that the prisoner''s purchase of the mattress was already known to P.

Ws. 10 and 11 (although temporarily forgot-ten until the prisoner''s visit to the shop with the police reminded them of it) would not prevent the

discovery of the purchase from being a discovery of the fact by the Police-officer within the meaning of Section 27. Legal Remembrancer v. Lalit

Mohan Singh Roy (1921) ILR 49 C. 167.

It has been contended that what the Police-officer discovered was not a ""fact"" within the contemplation of the section. ""Fact'''' is defined by the

Evidence Act, Section 3, to mean and include (1) any thing, state of things, or relation of things capable of being perceived by the senses. In my

view the definition does not restrict a fact to something which can be exhibited as a material object. The learned Crown Prosecutor gave an apt

illustration of a wider meaning of the word. He supposed the case of a prisoner confessing to having kidnapped a girl and informing the police

where he had confined her. I think that the discovery of the girl in that place in consequence of the information given by the prisoner would be the

discovery of a fact. It would be the discovery �of a ""state of things"". In Sukhan v. The Crown (1929) ILR 10 Lah. 283 (F.B.) the majority of

Full Bench held that the statement of the prisoner that he had pledged jewellery with a certain man was admissible in consequence of the discovery

of the jewels with that man. The fact of the pledge was there treated as a fact discovered. Pledged jewels would naturally be in the possession of

the pledgee. In the event of a purchaser of an article, such as a mattress, thing purchased would ordinarily have passed out of the possession of the

person who sold it; but I cannot see why a purchase should be any the fless a ""fact"" than a pledge. If the thing purchased has been proved to have

been sold and has been identified as the thing sold to the prisoner, all the conditions necessary to the discovery of the fact of purchase are

forthcoming. I think that the discovery of the purchase of a mattress by the prisoner on the 12th January; was the discovery of a relevant fact in

consequence of a confessional statements made by the prisoner to P.W. 42, and that the statements distinctly related to the fact discovered. The

statements set out in the case reserving the point of lawwere therefore, in my judgment, admissible.

This conclusion makes it needless for me to discuss the question whether, assuming that the evidence of the prisoner''s statements should have

been excluded, the other evidence in the case was-sufficient to sustain the conviction. But as the question was argued, I will say that in my opinion

there was ample evidence, quite apart from the confessional statements, to support the conviction. The conviction therefore must be upheld.

Burn, J.

The facts have been set out in the judgments of my learned brothers and need not be repeated by me.

Without meaning any disrespect to the erudite argument of the learned advocate for the prisoner, I do not propose to refer to any of the

English cases quoted by him. The question for our consideration is whether certain statements alleged to have been'' made by the accused while in

the custody of the police are admissible in evidence. It is now settled beyond dispute that the law of evidence in this country is contained in the

provisions of the Indian Evidence Act. Therefore, although study of the English'' cases may be useful and instructive to any one who wishes to

learn-the history of any particular section, or to grasp the principles underlying the law of evidence, it is not, in my opinion legitimate to attempt to

deduce the law from the English decisions. When the terms of any provision of the Evidence Act are clear and unambiguous, it is our duty to apply

them without hesitation. We are not permitted to say, after discussion of the English cases on which the provision is based, that the legislature must

have meant something different from what it has in fact laid down.

The present case is in one sense quite free from complication. The learned Crown Prosecutor did indeed make a submission that the

statements of the accused with which we are concerned might-be admissible u/s 8 of the Evidence Act, as conduct. But in view of the terms of

Explanation 1 to Section 8, the learned Crown Prosecutor, very properly as I think, did not seriously press such a contention. The only section

with which we have to do is Section 27 of the Act. If these statements are admissible at all it must be u/s 27. If they come within the terms of

Section 27 they are admissible; if they do not, they are inadmissible.

Section 27 runs as follows: - ""Provided that, when any fact is deposed to as discovered in consequence of information received from a person

accused of any offence, in the custody of a Police-; officer, so much of such information, whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved"".

As the first word shows, this is a proviso, and it is now well settled that it is a proviso to both the Sections 25 and 26 which immediately

precede it. Those sections exclude confessions made to a Police-officer, and the confessions made by any person whilst he is in the custody of a

Police-officer, unless in the latter case the confession be made in the immediate presence of a Magistrate. This section therefore provides that if

certain conditions are fulfilled, a confession made to a Police-officer, or a confession made by a person in the custody of a Police-officer, may be

proved. It is not however necessary that the information given by a person in the custody of a Police-officer shall be a confession before it can be

proved under the provisions of this section. This is clear from the words used. Any information which relates distinctly to the fact deposed to as

discovered in consequence of the information received may be proved. In addition it is laid down that such proof may be given even if the

information amounts to a confession; it is the words ""whether it amounts to a confession or not,"" which make this section an exception to the

general rules embodied in Sections 25 and 26.

Strictly speaking therefore it is not important to decide whether the statements alleged in this case to have been made by the accused amount

or do not amount to a confession. The section says that even if they do they may be proved, subject of course to the fulfilment of the other

conditions prescribed. If they do not amount to a confession they are equally, if not a fortiori, provable. For myself I do not see how these

statements can properly be described as a confession, in any complete sense. No one, I imagine, would hold that the jury could have convicted the

accused of the offence of murder, if nothing more had been proved against him than that he had made these statements. Even if the jury had been

entirely satisfied that the accused had made these statements,, and that they were true, they could not have held on them alone that the accused had

committed murder. They are confessional statements in the sense that if believed they establish one of many facts which taken all together prove the

guilt of the accused. It is impossible in my opinion to rate these statements higher than that. Indeed, it is merely to state an obvious truth to say that

if the Police had not been able to adduce any other evidence than this:--that the accused had bought'' the mattress in which the corpse was found

tied up, and had that mattress taken to the house in which he was living--he would never have been put on his trial. The statements are incriminating

certainly, and to that extent they are of a confessional nature, but they cannot be properly described as anything like a complete confession.

Taking now the provisions of Section 27, there is no doubt but that the accused, on the 23rd of January, 1934, when he is alleged to have

made these statements, was a person accused of an offence and was in the custody of a Police-officer. He had been arrested by the Inspector of

Police, (P.W. 42) on a charge of murder, and he was in the custody of that officer. The next point to consider is, in the words of the section,

whether any fact was deposed to as discovered in consequence of information received from the accused while in custody. This point is readily

settled by a reference to the evidence of P.W. 10, the shop-keeper who said he sold the mattress to the accused, and of P.W. 42, the Police

Inspector. P.W. 10 says ""About 10 or 11 days afterwards, about 4 P.M., this Inspector and another Aiyar came with the accused and the

accused pointed out the shop, saying that it was in that shop that he purchased the mattress"". This is the first item of evidence reserved for our

consideration by My Lord the Chief Justice. Again, P.W. 42, the Police Inspector, says in chief-examination that he went to the shop of

Muhammad Kasim, (P.W. 10) on the information of the accused, and that the accused pointed out the premises, and that he, (the inspector)

discovered the witness Thayi, (P.W. 11) on her being pointed out by the accused. In answer to a question by the Court the Inspector said: ""Yes.

He took me direct to the shop and there pointed out Muhammad Kasim as the man from whom he purchased the mattress"". Further, in cross-

examination, the Inspector replied to questions put to him as follows:

Q. - And did you see the woman Thayammal when you went there?

A. - Absolutely not.

Q. - When did she turn up there?

A. - It is only after the accused pointed out Muhammad Kasim and while we were coming out, the accused pointed out that woman with coral

beads on her neck and said that was the coolie who carried his mattress.

These passages show beyond the possibility of doubt, that the two facts were deposed to as discovered in consequence of information given

by the accused. The two facts are: (1) that the mattress was purchased by the accused from P.W. 10, and (2) that the woman P.W. 11 was

engaged by the accused to carry the mattress to the house in which he was then living. No attempt was made at the trial, so far as can be inferred

from the record, to show that these two facts were discovered in any other manner or in consequence of information given by anyone else. The

only reasonable conclusion is that these facts were really discovered in consequence of the information given by the accused while he was in the

custody of the Police Inspector. That is more than is required by the terms of Section 27. The section does not require more than that certain facts

shall be deposed to as discovered in consequence of information received from a person accused of an offence.

As I have said, Mr. Venkatarama Sastri for the accused does not contend that these facts were discovered in any other manner than that

described by the prosecution. Nor does he contend that they are not relevant facts. Indeed in a branch of his argument which I shall consider later,

he contends that these were the most important facts in the whole case, but for which the jury could not, or at any rate would not, have convicted

his client. He is compelled for the purposes of this case to contend that though these are facts, and relevant facts, they are not the kind of facts with

which Section 27 is concerned.

The argument as I understand it is briefly as follows: - Confessions made to the Police or by persons in the custody of the Police are excluded

because there is a grave risk of their being false. But, in the words of Woodroffe and Ameer Ali, ""the necessity for the exclusion disappears in a

case provided for by this section, when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given.

It is this guarantee, afforded by the discovery of the property, for the correctness of the accused''s statement, which is the ground of the admission

of the exception to the general rule. The fact discovered shows that so much of the confession as immediately relates to it is true"". It follows

according to Mr. Venkatarama Sastri''s contention, that the facts referred to in Section 27 must be of a particular kind, must have a particular

character. They must be of such a nature that by themselves, without any accompanying statement of a witness, they demonstrate the truth of the

information given. In one word, he contends, the facts must be ""self-probatory"". This is an instance of the practice which I have already

deprecated. From the reason underlying Section 27 an attempt is made to deduce the conclusion that Section 27 does not really mean all that it

says, but only a part of it. Section 27 says ""any fact"", but in spite of that, the contention is, we must suppose that it means only facts of this peculiar

nature. I must decline for my part to accept any such contention. Nothing can be easier to understand than the words ""any fact"", and I am not

prepared to hold that they mean less than they say. I shall therefore not discuss any of the numerous cases cited by Mr. Venkatarama Sastri in

which learned Judges have gone the length of holding that the only facts contemplated by Section 27 are actual physical material objects. There is

no warrant for any such limitation.

It can even be contended very fairly, as the learned Crown Prosecutor has contended in this case, that the facts discovered in consequence of

the information received from the accused satisfy the test deduced from the reason underlying the rule. The accused gives information of the facts

of his purchase of the mattress and of his engagement of the coolie woman to carry it to his residence. In consequence of that information the

Police discover the shop, the shop-keeper and the coolie woman. The witnesses when questioned speak to the two facts disclosed by the

accused. There is therefore independent proof of the truth of the information given by the accused. What more than this is forthcoming in the cases

in which material objects, such as stolen properties or implements of crime, are found? The actual finding of such things in the place where the

accused says they will be found proves no more than that the accused knew where they were. He may say for instance that he has hidden stolen

property in a straw-stack. The stack is searched and the property is found. That however is not in any sense proof that it was hidden there by the

accused. The discovery certainly corroborates the accused''s statement to some extent, and ordinarily in such a case no one would have any

difficulty in believing that the accused had in fact hidden the property there himself. All that I am now concerned to point out is that the mere finding

of the property does not in any way by itself corroborate the accused''s story of how it got to the place where it is. This will appear in a moment if

we consider a case in which an accused person gives information which incriminates another. It will not be far-fetched to suppose for instance a

case in which two men have been jointly concerned in a theft. One of them is arrested and he says: ""My confederate has buried some of the stolen

property in such a place"". The place is searched and the property found. Who will consider the finding of the property as any corroboration of the

accused''s statement that it was put there by the other man? The magistrate or judge is far more likely to draw the inference that the accused must

have put it there himself. Without discussing this matter at greater length it is in my opinion sufficiently clear that material objects have not in

themselves any greater probative value than any other facts.

Having thus found that all the other conditions required by S, 27 are present, I proceed to discuss the only question that remains, which is: -

Do these statements, made by the accused, relate distinctly to the facts discovered in consequence of the information given by him? This part of

Section 27, like all the other parts of it, has been the subject of interpretation in many decided cases. I do not think anything is to be gained by an

examination of those cases, for a very simple reason. So far as I am able to understand, the glosses on these words, and the interpretations of them

to be found in the decided cases are far less simple and intelligible than the words themselves. It is a commonplace of the schools that what is

obscure cannot profitably be explained by what is still more obscure. I will venture to say that the legislature has used the simplest words possible,

words which are not susceptible of explanation in more intelligible terms. Our task is merely to decide whether these words apply to the statements

laid before us by the learned Trial Judge.

Of the eight items with which we have to deal, only one was brought out by the prosecution in the examination-in-chief of P.W. 10. I have

referred to this already. It is the passage in which P.W. 10 says: - ""the accused point out the shop, saying that it was in that shop that he purchased

the mattress"". This of course relates distinctly to the fact of the purchase of the mattress by the accused, and it is clearly admissible u/s 27. One

item, the 7th in the order of the learned Trial Judge, is an anwer given by the coolie woman to a question put by the Court. That woman, (P.W. 11)

says:--When I went there the accused said, ""It was this woman that carried the article"". This statement undoubtedly relates distinctly to the fact that

the accused engaged that woman to carry the mattress to the house in which he was living. That also is admissible u/s 27. All the other items were

brought out in the cross-examination, by the learned advocate for the defence, of P.W. 10, P.W. 11, and P.W. 42. No one suggests that

statements which would be inadmissible if offered in examination-in-chief for the prosecution can become admissible merely because they were

made in answer to questions put in cross-examination. It is, however, a fair presumption that the questions put in cross-examination, especially

when they are put by a learned advocate described by the learned Trial Judge as a gentleman of very great experience, will not be quite irrelevant,

or unrelated to the matters in issue. In the present case that presumption is borne out by the facts; the questions were very relevant and had a very

near relation to the facts. Items 2, 3, 4 and 5 appear in the cross-examination of P.W. 10. They are as follows:

the accused himself pointed out the shop, saying that it was at this shop that he purchased, adding, ""I paid an advance of annas 8 and I

subsequently paid Rs. 2-8-0"";

the accused looking at me said ""I have purchased from him on the 12th a coir mattress.

It was the accused that was looking at me and asking me ""I purchased from you, is it not, on the 12th a coir mattress"";

thereupon the accused said ""I purchased it of you for Rs. 3: I paid an advance of eight annas and I sent the balance of Rs. 2-8 0 through the coolie

woman"".

The first and fourth of these statements describe the terms of the purchase, and I do not understand how it can fairly be contended that the

terms of purchase do not distinctly relate to the fact of the purchase. The second and third of these four statements are mere repetitions of the

statement made in the chief-examination of the same witness, with the addition of the date of purchase and of the person who sold the mattress.

These additions also distinctly relate to the fact of purchase, unless it can be held that the identity of the vendor and the date of sale are matters

which do not relate to the fact of a sale.

Items 6 and 7 occur in the deposition of P.W. 11. I have already dealt with item 7. Item 6 is P.W. 11''s answer to the question: - ""When you

saw this accused on that day did you remember his features when the Police asked you about him from what you saw him on that day?"" The reply

was: ""The accused himself mentioned me and said that it was a woman wearing coral necklace."" When the fact discovered in consequence of the

information received from the accused is the fact that he engaged a certain woman to carry the mattress to his house. I fail to see how it can be

argued that the identity of the woman is not a matter distinctly related to the fact. The statement of the accused that P.W. 11 was the woman, and

the addition of the detail that she was wearing a coral necklace, are clearly admissible u/s 27.

The eighth and last item of evidence with which we have to deal is the answer given by the Police Inspector to a question put to him in the

course of a cross-examination intended apparently to elicit whether it was really true that the woman Thayammal, (P.W. 11) was pointed out to the

Police by the accused. The learned advocate first asked the witness: - ""And did you see the woman Thayammal when you went there?"" The reply

was: - ""absolutely not"". Then the advocate asked:--""When did she turn up there?"" and the Inspector replied: ""It is only after the accused pointed

out Muhammad Kasim and while we were coming out, the accused pointed out that woman with coral beads on her neck and said that that was

the coolie who carried his mattress"". This was precisely the information given by the accused which led directly to the discovery of the fact that he

had engaged that woman to carry the mattress to his house, and proof of it is certainly admissible u/s 27.

For these reasons I agree with my learned brother Cornish, J., that none of the evidence referred to in the order of the learned Trial Judge was

inadmissible.

We heard Mr. Venkatarama Sastri on the question whether, assuming for the sake of the argument that all or any of these items of evidence

were inadmissible, the verdict of the jury could or should be sustained. On this question the learned advocate developed at great length what

seemed to me to be a very remarkable argument. He discussed the whole case in three aspects, (a) motive, (b) the events which according to him

must have occurred in the house in Peddu-naicken Street on the night of the 11th January, and (c) the evidence regarding the occurrences at

Egmore Railway Station on the night of the 12th of January. He invited us to say that the case against the accused, considered in all these three

aspects, was extremely weak, and that the jury would certainly, or at any rate probably, not have convicted the accused, if they had not been

obsessed by this matter of the accused buying the mattress at the shop of P.W. 10, and having it carried by P.W. 11 to the house in Peddu-

naicken Street. According to the learned advocate, this was the cardinal fact in the whole case, without which the prosecution would have failed to

satisfy the jury of the guilt of the accused. He went so far as to say that this fact was offered to the jury as the fact which would solve all the doubts

and difficulties they might entertain with regard to the whole of the rest of the case. The jury were invited, the learned advocate contends, to found

their whole decision on that point:

I have said that this seemed to me to be a very remarkable argument, and my reason for saying so is that the learned Trial Judge''s charge to

the jury contains no foundation for it. It is quite incorrect to say that the learned Trial Judge offered this fact to the jury as the universal solvent of all

their difficulties. Nowhere has the learned Judge invited the jury to base their decision on the fact that the accused bought the mattress and had it

taken to his house. Still less, if that were possible, can it be correctly stated that the learned Judge laid any particular stress on the point that these

facts were discovered in consequence of information given by the accused. The learned Judge dealt with this matter in two places only, so far as I

have been able to see. In the part of his charge which begins in the middle of page 260 of the printed record, the learned Judge describes the

evidence given by the mattress-seller and the coolie woman and on page 261 he goes on to say that if the jury ""believe the evidence of the

mattress-seller and the coolie woman it is quite clear that the accused purchased a coir mattress on the 12th"". He then refers to the evidence that

the accused pointed out to the Police: ""This is the shop: that is the man and this is the coolie woman who carried the mattress"". Immediately

afterwards the learned Judge reminds the jury that the accused denied all this, and I can find nothing in the charge to indicate that the learned Judge

invited the jury to believe the evidence of P.W. 10 and P.W. 11 because the accused was alleged to have pointed them out or because the

accused was said to have made any statements about them. The only other passage in which the learned Trial Judge referred to this matter is at the

top of page 268 of the record, where he described the mattress as ""the tell-tale coir mattress"". There again he made no reference to what the

accused was said to have revealed about the mattress, but merely advised the jury that the mattress was a very strong piece of evidence in the

case, because if they believed the evidence, it connected the accused with parcel, and so with the woman Sithammal, whose body was found in the

parcel.

The conclusion therefore is that this fact of the purchase of the mattress was not put before the jury as the one solid fact amongst a large

number of doubtful matters. And even if it had been otherwise, the proof of the purchase did not depend on what the accused said, but far more

on what was said by the witnesses. This circumstance differentiates this case from the cases which were cited to us by Mr. Venkatarama Sastri in

support of the proposition that when some evidence is found to have been wrongly admitted, it is never safe to assume that the decision of the jury

would have been the same if that evidence had been excluded. All those cases, so far as I could gather, were cases in which evidence was

admitted to prove facts which were irrelevant. Here there is no question of the admission of irrelevant facts; at the very most it might be said that

some of the evidence let in to prove a very relevant fact had been wrongly admitted. But there was plenty of admissible evidence to prove the

same fact, and so far as can be gathered from the charge to the jury, it was upon that evidence that they were advised to found their decision.

In these circumstances I am satisfied that independently of the evidence now in question there was sufficient evidence to justify the decision and

that consequently Section 167 of the Evidence Act would forbid us to interfere. I would go further, in view of the dicta in certain reported cases,

and would say that in my judgment the omission of these items of evidence could not have made any difference to the verdict.

The conviction and sentence must therefore be confirmed.

Lakshmana Rao, J.

The accused was tried at the third Criminal Sessions, on an indictment u/s 302 of the Indian Penal Code, for intentionally causing the death of

one Sithammal by manual strangulation on the night of the 11th of January 1934, at No. 24, Peddunaicken Street, George Town, Madras, and the

jury found him guilty of the offence by a majority of 6 to 3. The Trial Judge, My Lord The Chief Justice agreed with the majority verdict and the

accused was sentenced to death. He moved the Advocate-General for a certificate under Clause 26 of the Letters Patent, which empowers him to

certify that a point or points of law which has or have been decided by the Court should be further considered and the Crown Prosecutor opposed

the application. The Advocate-General gave a certificate regarding the reception in evidence of certain statements made by the accused while in

the custody of the Police, to which exception was not taken at the trial, and the omission of the Trial Judge to direct the attention of the jury to the

question of the continued possession till her death by the deceased of the silver articles pledged by the accused subsequent to the murder, and the

accused applied for a review of the case under Clause 26 of the Letters Patent. The Crown Prosecutor intimated his intention to question the

interpretation of the words ""decision on a point of law decided by the trial judge"" in the Full Bench decision in C. K. N, Sundaresa Aiyar v.

Emperor (1930) M.W.N. 249 (F.B.), and take preliminary objection to the competency of the application, on the ground that there was no

decision on a point of law by the Trial Judge requiring further consideration, and a Full Bench of seven judges was formed to consider the

objection. The Full Bench upheld the preliminary objection by a majority of 5 to 2, and it further held that the question of continued possession of

the silver articles till her death by the deceased, did not arise in the case, in view of the plea of the accused that they belonged to him and not the

deceased. The application for review was therefore dismissed, and since the question of the admissibility of the statements made by the accused

while in the custody of the police and the effect of their admission, if inadmissible, could not be considered therein, the learned Chief Justice has in

the exercise of his powers under Clause 25 of the Letters Patent reserved it for the opinion of the High Court.

The corpse of Sithammal was despatched by train from the Egmore Railway Station to Karunguzhi on the night of 12th January, 1934 packed

in among other things M.O. 29 the coir mattress, and the statements in question relate to the purchase of the mattress by the accused from P.W.

10''s shop on the 12th January and its carriage by P.W. 11 the coolie woman to No. 24, Peddunaicken Street. They were made while in the

custody of P. W. 42 the Police-officer and the facts necessary for the determination of the questions which arise on this reference may now be

stated. The murdered woman was the wife of P.W. 1 and she left his house on the 4th August, 1933 taking with her all the valuables including

jewels and silver articles, some of which are specified in Exhibit A the report of the husband to the Police. She was living with the accused

thereafter at different places in Madras, and the evidence of P. Ws. 2 and 3 the lessee and sub-tenant of a portion of the downstairs of No. 24,

Peddunaicken Street, shows that from the 23rd December, 1933, they were living in the first floor of that house where the woman is alleged to

have been murdered on the night of the 11th January, 1934 for the sake of her property. She was last seen in the house by P.Ws. 2 and 3 about

6-30 and 7 P.M., respectively, on the day of occurrence, and according to P.W. 2, she was wearing among other things M. O''s 14 and 15 the

pair of thodus set with rubies and the diamond besari. The accused too was in the house, and she was not seen alive thereafter. P.W. 3 noticed the

accused going out of the house about 4 A.M., next morning when she got up to relieve herself, and P. W. 6 the milk-supplier of the accused

arrived with milk about 6 A.M. The door at the top of the stairs leading to the first floor was hasped from outside, and P.W. 6 returned, thinking

that the occupants had gone out. She mentioned it to P.W. 2 who was cleaning his teeth outside, and the accused returned to the house about an

hour later. P. W. 2 questioned him about what P.W. 6 had reported and the accused stated that he had taken Sithammal to his sister''s house at

Saidapet to assist his sister who was then in labour. P.W. 2 who is a coal contractor left the house soon after, and from the evidence of P. Ws. 10

and 11 shop-keeper and coolie woman, who were pointed out by the accused, it appears that the accused purchased M.O. 29 the coir mattress

from P.W. 10''s shop about 10 A.M. on the 12th January and had it carried to No. 24, Peddunaicken Street by P.W. 11 the coolie woman. He

was on the first floor when P.W. 2 returned for his meal about 12 O''clock and the witness left again about an hour later. P.W. 3 also left about 3

P.M. and it is in evidence that the other tenant was absent throughout the day. The accused was in the house when P.W. 2 returned in the evening

and he was there till P. W. 2 left, for the temple about 6-30 P.M. He was not present when P.W. 3 returned about 8 P.M. and the parcel

containing the corpse of Sithammal was despatched from the Egmore Railway Station about 9-45 P.M. by a person who was subsequently

identified as the accused by P.Ws. 25 and 26 the coolie porter and assistant parcel clerk; The accused did not return to his residence that night

and the evidence of P.W. 12 shows that the accused came to his master''s godown about 11 P.M. He slept there that night and went to No. 24,

Peddu-naicken Street next morning taking P.W. 12 with him. The jutka of P.W. 29 was fetched, and the belongings of the accused includ-ing two

trunks and wooden boxes were loaded into it. P. W. 2 enquired whether they were vacating and the accused replied that he was, as he had been

appointed village munsif of Salur. The things were removed to the godown, and the accused stayed there for three days. He had a tuft behind and

crop in front, till he left his residence, and he got the tuft removed by P. W. 13 the barber on the 14th. P.W. 2 questioned him about it when he

went to No. 24, Peddunaicken Street on the 15th to pay up the amount due to the milk-seller, and he was told that the head was cropped as it

was more convenient. The parcel was not claimed at Karunguzhi and information was sent to the Police on the 14th January as it emitted a foul

smell. It was opened that evening in the presence of P. W. 32 the Sub-Inspector and the Sub-Magistrate, and the corpse of Sithammal which had

been folded three-fold was found inside. Inquest was held next morning at the post mortem examination disclosed that the woman was killed by

strangulation. Information was sent to the City Police and efforts to trace the sender of the parcel, resulted in the discovery of P.Ws. 25 and 26 the

porter and assistant parcels'' clerk. They gave some identification marks besides expressing their ability to identify the person, and vigorous

attempts were made to trace the sender. The accused removed to P.W. 20''s house on the 17th and though it was taken for a month and the rent

paid in advance, the accused left it on the night of the 18th leaving behind some of his things including his tuft. He arrived at P.W. 18''s house in a

rickshaw about 5 A.M. on the 20th with a trunk and bedding, and asked P.W. 18 to let him a room. P.W. 18 replied that he had no rooms to let

and the accused who had high fever stated that he came there as he could not find his relations. He was allowed to rest himself as desired, and he

left the house about 10 A.M. He returned in the evening saying that he could not find his relations and P.W. 18 permitted him to sleep in the house

that night. He left about 12 O''clock on the 21st leaving his things behind, and the Police arrived about 2 O''clock. The witness told them that the

man of the description wanted by them had left earlier, and the accused returned between 2 and 3 P.M., on the 23rd January. He was arrested

soon after by P.W. 42 the Inspector and Exhibit KK the order of the Sub-Collector, dated 22nd December, 1933, intimating that he would be

dismissed from service if evidence was not produced before 31st January, 1934, that he had cleared his debts was found in his trunk. M.Os. 6, 7,

8, 14, 15 and 16 the jewels and silver articles pledged by the accused between 14th January, 1934 and 20th January, 1934 and identified to be

those of the deceased, were recovered on his information from P.Ws. 8 and 14, and he was taken in a car to P.W. 10''s shop. He pointed out

P.Ws. 10 and 11, who confirmed his information, and M.O. No. 29 the mattress was identified by them subsequently.

It was at P.W. 10''s shop that the statements in question which are set out below were made and they came on record in the following manner.

P.W. 10 was questioned in examination-in-chief whether the Police came to him in connection with the case, and he stated ""P. W. 42 came with

the accused and the accused pointed out the shop saying that it. was in that shop that he purchased the mattress"". It was elicited in cross-

examination that he had sold some other articles on the 12th January and in reply to a further question whether he remembers the purchasers, P.W.

10 stated ""It is because 10 or 11 days after he made the purchase, he came to the shop and himself pointed out the shop saying, that it was at this

shop that he purchased, adding ''I paid an advance of 8 annas and I subsequently paid Rs. 2-8-0'', that I remember him."" He was asked next

whether the accused stated in his presence that it was the shop in which he purchased, and the witness stated ""The car stopped in front of my shop

at about 4 P.M. They all got down and entered the shop, and as soon as they entered the accused looking at me said ''I purchased from him on the

12th a coir mattress''. He was then asked whether P.W. 42 stated anything, and the answer was ""It was the accused that was looking at me and

asking me ''I purchased from you, is it not, on the 12th, a coir mattress,''"" The cross-examination was pursued and the witness stated ""The Police

then asked me to take the account and I showed the account. When I looked into the account I found that on the 12th there was a sale of coir

mattress and two pillows for Rs. 3-12-0 and another coir mattress for Rs. 3 and I said therefore I did not know whether it was the one or the

other, that I sold the accused. Thereupon the accused said ''I purchased it of you for Rs. 3. I paid an advance of 8 annas and I sent the balance of

Rs. 2-8-0 through the coolie woman''. P.W. 11 was asked in cross-examination, whether she remembered the features of the accused from what

she saw of him on the date of purchase, and she stated ""The accused himself mentioned me and said that it was a woman wearing a coral

necklace"". Then in answer to a question by Court, she stated ""when I went there the accused said ''It was this woman that carried the article'' and

P.W. 42 deposed in examination-in-chief that he discovered P.W. 11 on being pointed out by the accused. He was cross-examined about it and

he stated ""It was only after the accused pointed out P.W. 10, and while we were coming out, the accused pointed out that woman with coral

beads on her neck and said that that was the coolie who carried the mattress.

The purchase of the coir mattress in which the corpse was packed and its carriage to the alleged scene of crime through the coolie woman on

the 12th January suggest the inference that the accused committed the crime and the contention that the statements in question do not amount to a

confession is untenable. They were made while in the custody of the Police-officer and their admissibility depends upon the correct interpretation of

Section 27 of the Indian Evidence Act which is in these terms: ""Provided that when any fact is deposed to as discovered in consequence of

information received from a person accused of any offence in the custody of a Police-officer, so much of such information whether it amounts to a

confession or not, as relates distinctly to the fact thereby discovered may be proved.'' The discovery of a fact as the result of the information is a

condition precedent to the reception in evidence of the information or any portion thereof, and as pointed out in the Full Bench decision in Sukhan

v. The Crown (1929) 10 L. 283 though the expression ""fact as defined by Section 3 of the Indian Evidence Act includes not only the physical fact

which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious, it is in the former sense

that the word is used in Section 27. The fact discovered should therefore be a material and not mental fact, and as observed by the learned authors

Woodroffe and Ameer Ali in their commentary on the Evidence Act, ""The word ''discovery'' may either mean the purely mental act of learning

something which was not known before to a person, as the mere mental act of becoming aware of something after hearing it stated or the physical

act of finding upon search or inquiry something or material fact the existence or the exact locality of which was unknown till then. It is in the latter

sense that the word is used in this section, that is in the sense of a finding upon a search or inquiry of articles connected with the crime or other

material fact, the reason being that it is only this kind of discovery which proves that the information in consequence of which the discovery was

made is true and not fabricated"". The fact discovered may thus be the stolen property, the instrument of the crime, the corpse of the person

murdered or any other material thing, or a material thing in relation to the place or the locality where it is found, and it should confirm the

information though its connection with the crime and identification are always provable aliunde. The discovery of a witness to the crime or act of

the accused on his formation would not be a discovery of a fact within the meaning of the section, vide Palaniandi Velan v. Emperor (1934)

M.W.N 601 and confirmation or otherwise of the statement of the accused by the witness discovered cannot make any difference. Further Section

162 of the Code of Criminal Procedure prohibits the use of any statement by the witness to the investigation officer, and the discovery should in my

opinion be of some concrete fact. The karas being found in the possession of the pledgee in Sukhan v. ''The Crown (1929) 10 Lah. 283 would be

a fact discovered in this sense and so would, the finding of the person kidnapped and wrongfully confined at the place mentioned by the accused in

the illustration suggested by the Crown Prosecutor. There would be no discovery in those cases if the karas and person kidnapped were not

found, and it is well settled that even when a thing is discovered the statement of a prisoner as to how he came by it cannot be proved. The

statements in this case are of this nature and they were verified by P.W. 42 the Police-officer by examining the witnesses pointed out by the

accused. He cannot be said to have discovered any fact within the meaning of Section 27 of the Indian Evidence Act and in my opinion the

statements in question are not admissible in evidence.

The case has therefore to be reviewed on the evidence properly admissible, and as pointed out in Emperor v. Panchu Das (1920) ILR 47 Cal.

671 it is incumbent on this Court to investigate whether independently of the evidence improperly admitted there is sufficient evidence to justify the

conviction. The evidence of P.Ws. 10 and 11 regarding the sale of No. 29 the coir mattress to the accused and its carriage to No. 24,

Peddunaicken Street is admissible, though the statements of the accused relating thereto are not, and the case of the accused was that he did not

make those statements. The statements were not proved aliunde and it was pointed out to the jury that proof of the purchase and carriage of the

mattress depended upon credibility of P.Ws. 10 and 11 who speak to it. The bringing on record of the statements in question through these

witnesses could not under the circumstances have made any difference, nor would it be proper to reject their evidence because they recollected

the incident and features of the accused only after being reminded by him. The shop-keeper was not cross-examined regarding the identity of the

mattress and the disinterested evidence of P.Ws. 2 and 3 shows that the accused and the deceased were living together at No. 24, Peddunaicken

Street from the 23rd December, 1933. They swear to the presence of the deceased in the house till about 7 P.M. on the 11th January, 1934 and

undue importance cannot be attached to the opinion of P.W. 38 the Medical Officer that death would have occurred about 5 or 6 days prior to

ISth January, 1934, the date of the post mortem examination. The period of death cannot be ascertained with accuracy from the progress of

putrefaction and as pointed out in Taylor''s Medical jurisprudence, Volume I, page 294, warmth is usually retained when a person dies from

asphyxia. Putrefaction would in such cases be more rapid and the contents of the stomach indicate that the woman was strangulated some hours

after her night meal. The tenants of the ground floor and neighbours must have been asleep at the time nor was it suggested that she could have

raised any cry. The packing should have commenced sometime later and it did not require an expert to stitch the corpse in gunny bags and other

materials. The suggested impossibility of removing the package along the staircase was not emphasised at the trial and the dimension of the

package as appearing from the evidence in 2\ feet by 2 feet by 20 inches. It is in evidence that trunks and deal-wood boxes were removed along

the staircase subsequently, and P.Ws. 25 and 26 swear that the accused was the sender of the parcel. They identified him at the identification

parade on the 24th January and the accused had a crop in front prior to the removal of the tuft on the 14th January. Ex. KK. shows that the

accused was hard pressed and the pledge of M. Os. 6, 7, 8, 14, 15 and 16 the articles of the deceased by him between the 14th and 20th January

supplies the motive. His subsequent conduct including his false explanations to P.W. 2 also points to his guilt and independently of the statements in

question, the jurors who found the accused guilty would have come to the same conclusion. There is therefore no ground for interference and the

conviction and sentence will stand.