JUDGMENT
Mack, J:—This is a case, which has given us anxious consideration. Appellant, a man aged 43, has been found guilty under S. 302 I.P.C of the murder of his 17 year old wife, Balakotamma, by strangling her to death during the night of 29-5-1950 in his house in Vetapalam village in which there were admittedly no other inmates The next morning appellant asked a washerman (P.W 7) to take a message to hie wife's uncles, P.Ws 1 and 5 and her maternal uncle and foster father P.W 6 who all lived at Vadlamudi, a village three miles away to the effect that she was found lying speechless and unconscious in his house. On receipt of this message at 7 am P.Ws 1, 5 and 6 hastened to Vetapalem and found Balakotamma lying dead on a cot. According to P.W 1, appellant when questioned first made no reply and then denied knowledge of anything. There were no visible injuries on the body. Suspecting that appellant and his concubine one Subbamma had poisoned her, they made a complaint to this effect, Ex. P. 1 at the Vadlamudi Police station at midday. The only evidence that the Village Munsif of Vetapalam (P.W 9) gives is that he was a Panchayatdar at the inquest held by the Circle Inspector (P.W 11) who reached Vetapalam at 4 pm Near the corpse was lying a rice pounder, M.O 3. On the body was a blouse, M.O 1 put on, as is described, inside out and a sari M.O 2. P.W 1 says when he saw it was slightly wet. Postmortem held by Miss. Annapoornamma, Assistant Surgeon of Tenali, the following morning at 8 am showed that death was due to asphyxia as a result of strangulation. An echymosed patch was found on the neck extending upwards to the lower law and downwards to the upper part of both collar bones. The trachea and larynx were congested, oesophagus cynosed and the hyoid bone broken. There can be no doubt about the cause of death, which was strangulation by great pressure on the throat.
(2) The Circle Inspector returned with the post mortem certificate to Vetapalam and arrested the accused on the 2nd June. He produced him before the Sub Magistrate of Tenali (P.W 4) on the evening of the 3rd of June with a requisition Ex. P. 3 to record his confession. As it was after lock up time, the Magistrate asked him to be produced the following morning and he was then kept in the sub jail after being given the necessary warnings. He was produced again before the Magistrate on 56-1951 and after giving clear warnings to the appellant in full conformity not only with S. 164 Crl. P.C but also with R. 85 of the Criminal Rules of Practice, the Magistrate recorded a long detailed confession from the appellant in which he confessed that he squeezed his wife's throat, while she was asleep with his own hands. Appellant's statement was to the effect that he returned home at midnight and found his wife asleep, that in view of domestic troubles she was giving him he strangled her, that he slept in the house till the morning, that he fetched his mother, that neighbours gathered and that he sent word to his brothers-in-law. He said that one of them, when he came on the house, kicked him on the hear, which struck against the wall and poked him with a slick near the abdomen. The domestic troubles he detailed these related to complaints his wile made to her brothers, who continually interfered in his domestic life and that when he protested his wife scolded him and said she would get him killed by her brothers. The gist of his confession is that he killed her thinking that after doing so, he would also the at the hands of the Government, rather than be killed by her brothers. This confession was retracted in the committing Court where the appellant pleaded that he was coerced by the Circle Inspector and the Deputy Superintendent of Police into making the confession, that the wording was his and that he repeated what he was asked to say like a parrot. He adopted the same attitude at his trial. There is no other evidence against the appellant.
3. A curious feature about the confession is that it mentions nothing about the concubine Subbamma, who the appellant continued to keep after he married Balakotamma as his second wife three years ego, alter his first wife died. There is evidence to show much domestic unhappiness between the appellant and Balakotamma on Sabbamma's account. Ac cording to P.Ws 1, 5 and 6 about four months before this offence the appellant, who was ill-treating Balakotamma, drove her out of the house. There was a mediation in the course of which appellant and Subbamma are said to have executed two pronotes Ex. P. 6 and P. 7 each for Rs. 500 in favour of one Venkatasubbayya, who has not been examined, both dated 12-2-1950. They have been produced from the custody of the writer P.W 8. The understanding apparently was that if appellant and his concubine, who promised to have nothing further to do with each other, were to renew association, they should pay the amounts mentioned in the pronotes. The existence of the concubine Subbamma was known to the Police and it is exiremely difficult to imagine a confession concocted by the Police and put into the mouth of the appellant, which made no mention of Subbamma at all. According to the Circle Insoector, Subbamma lived in a house 50 yard away from that of the appellant.
4. In his statement in the committing Court, the appellant said that he had gone for weighing work and returned late in the night, that when he did so his wife did not respond when called, that when he tried to wake her up she did not move and that he sent word to his mother and called near relations and neighbours. In his confession, he said he sent word to his mother at dawn and that after strangling his wife, he stayed in the house with her. His mother has not been examined, as she should have been, by the prosecution as a witness to evidence exactly when she received the message and when she came to her son's house nor has she been examined as a defence witness to bear out the accuse's statement that not only so but neighbours gathered. Not a single neighbours has been examined as a witness. Not merely this Subbamma should, in my opinion, most certainly have been examined as a witness to depose to her relations with the appellant and to say all she knew about the promissory note Ex. P-7. It is most unfortunate that this trial was taken to a conclusion without the examination of Subbamma or the appellant's mother.
5. The main contention of Mr. Rajagopalachari for the appellant is that no conviction is possible in the absence of any evidence to corroborate the confession which, he has asked us to reject as not being a true and voluntary one in view of its mentioning several facts opposed to the evidence in the case. I am myself unable to see any reason for rejecting the finding of the learned Sessions Judge that thing confession by the appellant despite its suppression of the existence of Subbamma, and the possibility of other inaccuracies of fact set out there, was voluntarily made by the appellant on being confronted with the results of the post mortem examination. Mr. Rajagopalachari has suggested in his able argument the possibility of the concubine Subbamma, having entered the house in the absence of the appellant, and having strangled Balakotamma without the assistance or even the knowledge of the appellant who when he returned home and found her dead, in consternation at his discovery with a moral conviction as to who the guilty person was, adopted the course he did of sending a message to his mother and his wile's relations only the next morning, and then making this confession, when the post mortem showed the cause of death, in the manner he did, to shield the real culprit, who was his concubine Subbamma. The material does indeed show that Subbamma did have a strong grievance against Balakotama whose resentment and protests at her continued association with the appellant had provoked, mediation and led to solemn undertakings by her to have nothing to do with the appellant. I do not find any suggestion in the leaner. Sessions judge's judgment of any such theory, which has been made for the first time in this Court on the basis of the retracted confession and the statements made by the appellant in the committing Court and at his trial. A defect, in my view, in the material placed before the Court arises from the unfortunate state of our law, under which the first statement made by the appellant to the police regarding the discovery of his wile's corpse, the time at which he found it and what he did immediately afterwards is am pletely shut out in evidence under S. 162 Criminal Procedure Code, the shutting out of what an accused person tells a police officer particularly in a case of this kind, when first questioned opens the way for all kinds of statements being made in the committing Magistrate's Court and also at the trial in conformity with advised lines of defence, which are, of course, impossible to verify and places the prosecution at a great disadvantage. The view that I have no hesitation in taking is that in cases of this kind, the police would do well to take an accused person before a Magistrate, whether he makes a confession or not, and have a statement recorded under S. 104 Crl. P.C, so that the accused person can be fixed to one explanation when placed in a position which becomes incriminating unless he can offer a satisfactory explanation for his behaviour. This is a case in which a roar and his wife are the sole occupants of a house, in which the write is found suddenly dead and postmortem has proved conclusively that a is the result of violent strangulation. A prima facie strong suspicion points to the husband. It is in this back ground that the confession made before the Magistrate, without any appreciable delay in the circumstances has to be appreciated. Although this line of deferce has not been raised in the trial Court, I have carefully considered the possibility of the concubine Subbama a being the sole culprit. There are cases in which an innocent person may take upon himself lull responsibility for a crime, even murder, to save some no whom he dearly loves from punishment My own view is that this is not such a case and that the appellant's confession that he and no one else strangled his wife can be saiely acted upon.
6. Some decisions have been placed before us in which it has been held that a conviction on the uncorroborated confession of an accused is unsafe. There is no authority to the effect that conviction on an uncorroborated but retracted confession before a Magistrate is illegal and each case has to be dealt with on its own facts. I am unable to find any decision in which where a man, whose wife has been strangled to death at night in a house occupied solely by them, who has voluntarily confessed before a Magistrate to his guilt, being acquitted.
7. The learned Sessions Judge and all the four assessors who have heard the evidence were of the opinion that the appellant strangled his wife. My own view, which is in agreement with them, is that the case is free from reasonable doubt and that the appellant can safely be convicted of murder. My learned brother, for whose opinion I have the greatest respect, has shared my anxiety in this case and has considered it unsafe to convict the appellant on the, basis of this retracted confession. I have however agreed to enter a judgment of acquittal in this case and not to refer the matter to a third Judge in view of the approach made by a learned third Judge sometime ago on a difference of opinion between us in Karuppa Thevan and four others in R.T No. 31 of 1951. Rajagopalan, J., to whom our difference of opinion was referred under S. 378 Crl. P.C, before going into the merits and delivering an opinion in favour of acquittal expressed the following view as the method of approach to such a reference:
“Where the main question at issue 19 identity of the assailants…………the very fact, that one of the two learned Judges, who had to decide that question was of the view, that the identity of the accused with those assailants had Dot been established beyond all reasonable doubt, should suffice to establish the basis fur such a reasonable doubt, the benefit of which, of course, the accused hare to get-la my opinion, a third Judge to whom the question is referred under S. 378 Crl. P.C, should normally accept that finding, unless the compelling necessity of conclusive evidence on record drives him to deny the existence of any basis for a reasonable doubt.”
It would be a sheer waste of time if I were to ask for a reference of our difference of opinion to a third Judge in this case on the basis; of this line of approach by a third Judge to a reference made to him. My learned brother and I are in complete agreement that this is not correct and legal method of approach by a third Judge and we say this with the greatest respect to Rajagopalan, J. S. 429 Crl P.C, which would apply in this case of an appeal from a sentence of transportation for life, is idential in terms with S. 378, which provides for a resolution of differences of opinion in what are known as Referred trials on the submission of sentences for confirmation. S. 429 reads as follows:
“When the Judges composing the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court, an such Judge after such he ring (if any as he think fit shall deliver his opinion, and the judgment or order shall follow such opinion.”
The opinion, which Rajagopalan, J., expressed, viz., that the normal disposal by a third Judge should be one of agreement with the opinion of acquittal is one which we are quite unable to share, it would be tantamount to a judgment of acquittal in practice prevailing over a judgment for conviction. Had the statute intended to lay this down it would have done so.
8. There is a dearth of case law defining the scope of the third Judge's method of approach to such a reference. Both Ss. 429 and 378 make it mandatory for a judgment or order of the Court to follow the opinion of the third judge. The only authority, which supports the view of Rajagopalan J. is the view taken by Mr. Justice Mahmood in Empress v. Debi(1) a decision of the year, 1886. In that case, Mahmood J. expressed the view that when one Judge differs from his brother Judge on a pure question of the weight of evidence as to the propriety of a conviction, the opinion of the Judge for acquittal should, as a general rule, prevail. This view was considered by Edge C.J in Empress v. Bundu and another(2) and rather emphatically dissented from. We must express ourselves in complete agreement with the foil awing view expressed by Edge C.J
“When Judges unfortunately differ in opinion, I conceive it to be the duty of each Judge to express and act upon the opinion which he himself has definitely arrived at. Before so expressing himself he should of course carefully weigh the reasons idduced by his brother Judge for forming a different opinion; but if those reasons do not commnend themselves to his mind, he must not, in the exercise of his duty, allow the fact that his brother Judge has arrived at a different conclusion, to influence his conduct whether his view—to take a criminal case— be in favour of a conviction or of an acquittal. There would be no meaning in Ss. 378 and 429 If it was intended that the opinion of one Judge in favour of an acquittal should prevail.”
We need scarcely say that a difference of opinion in Referred trials, and murder cases involving life and death, arises in exceptional cases and after much anxious deliberation. References are never lightly made and when we, as a criminal Bench, make them, we do expect the legal disposal of a reference in accordance with the sections of the statute under which we make the reference. Otherwise, if a Judge is to exercise his own independent view in accordance with his own conscience, the view taken by Mahmood J. with great respect, would mean that he has to subordinate his own independent conviction in favour of a conviction in favour of an acquittal and sign a judgment to which he is not really a party.
9. There have been several instances in our own High Court where differences of opinion have been resolved by a third Judge in favour of a death sentence on a murder charge, though one Judge was in favour of acquittal. Ramaswami v. Emperor was one of the cases which went to the other extreme, in which the Sessions Judge sentenced an accused person on a charge of murder to death. Subramania Aiyar Off. C.J was of the opinion that the accused was guilty but that the sentence should be one of transportation for life. Boddam J. disagreed and was in favour of acquittal. Bashyam Aiyangar J. to whom the difference of opinion was referred not merely confirmed the conviction for murder but also the sentence of death passed by the Sessions Judge. When the opinion of Rajagopalan J. in the previous reference was placed before us, the matter came up for some discussion and Mr. Ethiraj who appeared for the five appellants in that referred trial expressed to us his anxiety as regards the possibility of the third Judge following the precedent of Bhashyam Aiyangar J. and restoring the sentences of death on two of the appellants passed by the Sessions judge. The judgment of conviction, which I favoured found them both young men guilty only under S. 326 I.P.C and would have sentenced them to a Borstal School for three years.
10. As a criminal Bench, we are, of course, vitally interested in the method of approach by a third Judge to these references. We would like to take the opportunity here as a Bench of expressing our views as to how we would like these references approached by a third Judge. The system of Referred trials from the moffussil tried by a Sessions Judge and assessors, with whose individual opinions the trial Judge is free to disagree, places an extremely heavy burden on criminal Benches, who do not themselves hear the witnesses. It is inevitable that differences of opinion should arise in the discharge of this extremely heavy responsibility in which two Judges finding themselves unable to agree on a difficult case, require and welcome the opinion of a third Judge to alleviate their responsibilities. It is in this spirit that we hope future differences of opinion in criminal cases will be resolved and it is also the method of approach the statute requires. In Md. Illias Mistri v. The King Biswas J. to whom a difference of opinion was referred, made the following approach to S. 429, to which we are unable to take the slightest exception.
8. There can be no doubt upon the wording of the section that the whole case is now before me, which means not only that I am at liberty, but that is also my duty to examine the waste of the evidence for myself and come to a final judgment. It is not a case of merely weighing the opinion of one learned Judge against that of the other deeding which of these opinions I should accept. I however think though on this point my learned brother does not agree that the learned third Judge cannot with great respect to the decision in Ramasami Goundan v. Emperor pass a death sentence in a case, where the Judge favouring conviction thinks a sentence of transportation is appropriate with the other Judge favouring acquittal, on the simple ground that it is only a Bench of two Judges, who should confirm a death sentence in agreement with each other. Although the law may not be specific on this point this extreme can always be guarded against by the Bench referring the case ex-perssing their opinion that in the event of the conviction being confirmed, the sentence of transportation is the appropriate one, in which case, the third Judge would be bound by such an opinion as regards which there would be no difference for him to resolve. I have thought it necessary to give expression to these views in this judgment, in which I for my part, agree for the reasons I have given supra to my learned brother's judgment of acquittal.
Somasundaram, J.:—The Sessions Judge of Guntur has found the appellant guilty of murder and sentenced him to transportation for life, for causing the death of Balakotamma, the wife of the appellant.
2. The occurrence is said to have taken place on the night of the 29th May 1950 and before dawn of the 30th of May in the house of the accused in a village called Vetapalem. ……..
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It is clear from the above circumstances that there is a great variation between the evidence given and the averments in the confessional statement. For the above reasons, I am not prepared to rely on the confessional statement. The question whether a retracted confession can be acted upon without material corroboration will arise only when the confession is true and can safely be acted upon. That question does not arise in this case, be in my opinion though the confession is a voluntary one, it contains allegations which contradict the man aspect of the prosecution case and so it is unsafe to act upon it without further corroboration.
According to the confessional statement itself, the accused took his food at 8 pm and came back at 12 in the night. The door was open when he came. There is nothing to prevent Subbamma coming into the house and causing the death of this young girl in the manner in which it has been caused; and it must not be forgotten that there was 20 years of intimacy between the accused and this woman, Subbamma and this was sought to be put an end to on account of this young girl, the deceased. Though one may not be sure as to what really happened that night, still the circumstances do not rule out the possibility of the woman committing this offence either by herself or in conjunction with the accused. The scrupulous omission on the part of the accused to make any reference whatsoever to Subbamma enhances the suspicion that he is trying his best to shield her.
In the circumstances, in my opinion, the prosecution has not proved its case beyond all doubt against the accused The conviction and sentence are set aside and the accused is acquitted.
I have since perused the judgment of my learned brother. The case has given us great anxiety. My learned brother is however of the opinion that the appellant can be safely convicted on the evidence in the case. I fully appreciate his observations and the reasons he has given for not making a reference to a third Judge under S. 429 Crl. P.C 1 entirely agree with him that it is the duty of the Judge who is asked to resolve the difference of opinion to examine the whole evidence himself and come to a final judgment after giving due consideration and weight to the reasons given by the two Judges on whose difference of opinion the case comes before him for his opinion. I do not think either S. 378 or 429 Crl. P.C contemplates the dice being loaded heavily in favour of either view. I am in agreement with the view expressed by Edge, C.J in Empress v. Bundu and another and Md. Was Mistri v. The King. To that extent I agree with the view of my learned brother.
As regards the other view expressed by my learned brother that the third Judge cannot pass a death sentence in a case where the Judge favouring conviction thinks a sentence of transportation for life is appropriate with the other Judge favouring acquittal, with great respect to my learned brother I am unable to agree with him. It looks odd and strange that when one Judge favours acquittal and the other Judge even if he convicts would sentence him only to transportation for life, a third Judge can hang. But that in my opinion is the correct interpretation of S. 378 Criminal Procedure Code. When on a difference of opinion a case is referred to a third Judge no fetter can be placed on the third Judge. He is at liberty to express and act upon the opinion which he himself arrives at. If he chooses he can pass a sentence of death, even though one Judge favours an acquittal and the other gives a sentence of transportation for life when convicting the accused.
(As per orders of the Chief Justice President of the Law Reporting Council, the following Note in R.T No. 84 of 1951 has been appended to this Crl. Ap. No. 104 of 1951):—
Somasundaram, J.—As this case has to be laid before another Judge on account of difference of opinion, I would like to make it clear what I meant and intended when I expressed my opinion in the case of Seeiharamayya(3). It will be clear from that case that the opinions which I expressed about the powers of a third Judge were purely obiter. I happened to express that opinion because my learned brother expressed his opinion. I did not intend to lay down any guiding principle for the third Judge nor did I intend to indicate the lines on which the third Judge should approach, as I have no jurisdiction to do so. In my opinion even a Bench cannot give any such directions to the third Judge. I only intended to say what I would do if I were the third Judge and not what others should do. It is to make this position clear that I am adding this note to this judgment.
V.C.S