Burn, J.:— This is a case of a somewhat unusual kind. The appellant is alleged to have gone to a house where preparations were being made for a marriage at about 1-30 A.M on 18th August 1937 and thereto have shot the father of the bridegroom with a revolver and killed him. The learned Sessions Judge of Coimbatore has found the appellant guilty of murder and, sentenced him to death.

2. The facts are quite simple. The deceased was the maternal uncle of the appellant and there was bitter enmity between the two branches of the family. It was alleged that about two years ago the appellant was trying to secure for his elder brother the-daughter of Sundarammal (P.W 7) but P.W 7 rejected this alliance as she disapproved of the appellant's family. After that it is said that about six months before this occurrence one Ponnusami who was employed by the deceased wanted to marry the same girl. His offer also was refused and he is said to have left the service of the deceased. After this a marriage was arranged between the daughter of P.W 7 and Sitarama Chetti (P.W 6), a son of the deceased. The time of the ceremony, was fixed for 8 to 9 A.M on the 19th August and according to the prosecution the relations and friends assembled at the house of the deceased on the 18th. The appellant had not received an invitation. In the middle of the night at about 1 A.M the bridegroom's mother and other relations went to fetch new pots for the marriage from the house of the potter according to mamool. While they were away from the house, the appellant, followed by two others who were not recognized, is said to have come in through the open front door of the house and to have shot Kuppuswami Chetti twice with a revolver. Kuppuswami Chetti was seated in the open yard behind the house. The house is on the Hardinge Market Street in Pollachi.

3. The front gate gives access to a small open yard. Then there is a verandah at either end of which is a small room. From the middle of the verandah the door leads into the front hall. Behind that there is a second hall and behind that the open yard in which Kuppuswami Chetti was said to be seated. The appellant, according to the evidence of P.Ws 1, 2, 4, 5 and 6, walked straight in through the gate and through both the halls to the doorway leading into the open yard. At that point he fired two shots at Kuppuswami Chetti, one of which entered his left side and penetrated to the heart. Death of course must have been instantaneous. The other struck Kuppuswami Ghetti on the right wrist and the bullet came out through the palm. The appellant is then said to have run across the open compound behind the house and to have made his escape by climbing over the compound wall on the eastern side.

4. P.W 1 is the eldest son of the deceased. He says that he himself, the bridegroom, Sitaraman (P.W 6), a tailor Harichaudran, (P.W 5) and Dandayudha Mudaliar (P.W 2), were all seated in the front hall when the appellant came in. Nachimuthu, a cart driver employed by the deceased, is said to have been sitting on the outer verandah. These five are the witnesses who saw the entrance of the appellant into the house. P.Ws 5 and 6 did not see the actual shooting. P.W 5 says that as soon as he saw the appellant with the revolver in his hand he pushed the bridegroom (P.W 6) into one of the small rooms at the end of the front verandah and bolted the door. These two witnesses therefore merely heard the shots. P.Ws 1, 2 and 4 saw the appellant go to the southern door near the hall and saw him fire from there. The evidence of these witnesses has been attacked on various grounds. Here, as also apparently in the Sessions Court, one of the principal lines of attack was based upon the size of the bullet which the doctor extracted from the body of the deceased. This bullet (M.O 1) is a large object and the chemical examiner, Madras, to whom it was sent for examination reported (Ex. D-1) that the weapon through which the bullet could have been fired must be a gun of at least 12 bore. Now all the witnesses for the prosecution say that the weapon which the appellant used was a revolver. The learned Sessions Judge has explained that, when the case came up for trial before him, the learned Public Prosecutor represented that if the defence was going to make any use of this seeming discrepancy he would like to have the chemical examiner cited as a witness.

5. The learned Sessions Judge thereupon called for an additional report from the chemical examiner and the chemical examiner replied (Ex. G-1) that by ‘gun’ he meant any kind of fire arm and that the bullet might have been fired from a revolver. The matter was really placed beyond the possibility of any doubt by the examination of a Sub-Inspector of the C.I.D, as a court witness. It was in consultation with this witness that the chemical examiner had sent his first report. The Sub-Inspector said that he had experience of revolvers of 12 bore and even larger. He said, he himself had seen revolvers which could easily fire bullets like M.O 1. He also stated that M.O 1 had no marks of rifling on it and from this he deduced that the weapon from which it had been fired was a smooth bore and not a rifled firearm. It is of course well known that the barrels of revolvers, as generally manufactured in Europe or America, do not exceed 445 inches in bore. To pass a 12 bore bullet the bore of the firearm must be according to the court witness 729 inches. The difference is considerable but there is not the slightest reason for rejecting the evidence of the court witness when he said that he had seen revolvers which could easily fire bullets of the size of M.O 1.

6. The appellant denied the offence and pleaded alibi. He said he was actually selling toddy in the toddy shop at Dharapuram, about 30 miles away, on the night that Kuppuswami Chetti was murdered. One witness was examined in support of this plea of alibi, but he merely said vaguely that on the Wednesday previous to a Saturday two or three months ago when the police had come to his toddy shop to enquire about the death of Kuppuswami this appellant had been in the shop. As the learned Sessions Judge remarks this is much too vague to be of any use. A line of defence which was more strongly relied upon was that nobody really knew who it was, who had shot Kuppuswami Chetti, and in support of this argument four defence witnesses were examined. One of these, D.W 1, is a neighbour, Nagamanickkam Chetti, who was at first cited as a prosecution witness but afterwards dispensed with. He alleged that he was sleeping in his house close by and was awakened by the sound of a shot. He also thought he heard some one running. He heard a noise of weeping in the marriage house. He went there and saw Kuppuswami Chetti lying dead. When he questioned P.W 1, P.W 1 said that someone had done it but did not say who. D.Ws 2 and 3 alleged that they were in the inner hall of the house but that P.W 1 and others (men and women) had gone out to the potter's house. They said that suddenly they heard the sound of a shot and when they ran and looked into the yard they saw Kuppuswami lying dead. But they alleged that they did not see anybody come in with a revolver; and D.W 3 said positively that the appellant did not come in with a revolver. D.W 4, a pujari, said that he went to the potter's house with the party and that the party was accompanied by P.W 1 and others. He said that as they were returning from the potter's house some one came and said that some one fired a shot and killed Kuppuswami. P.W 1 was with the pujari and the party was coming from the potter's. P.W 1 asked the people in the house who had fired the shot and they said they did not know. Thus, as the learned Sessions Judge observes, the defence witnesses 2, 3 and 4 attempt really to prove an alibi for P.W 1, and perhaps for some of the other prosecution witnesses though they do not mention the other prosecution witnesses by name. In our opinion, this evidence is wholly worthless. The evidence of D.W 4 clearly conflicts violently with that of D.W 1. D.W 1 who came from his house close by immediately after he heard the shot found P.W 1 in the house, whereas D.W 4 alleges that P.W 1 had gone with the party to the potter's house and this party did not return until after the murder had taken place. D.W 1 says that he stayed in the house 15 minutes but he apparently did not see any of the party who came back from the potter's.

7. The only criticizms of any force that can be levelled against the prosecution evidence are of a negative kind. The Sub-Inspector (P.W 10) was told at about 2-80 A.M by a Head Constable that he had heard that there was a shooting case in the marriage house of a Chettiar in Hardinge Market Street. The Sub-Inspector entered the substance of this information in the General Diary and then went out to enquire into the matter. It is, we think, a defect in the prosecution case that the Head Constable has not been examined and therefore it is not known who gave the Head Constable any information or what that information was. This has led to a contention on behalf of the appellant that Ex. B, a statement recorded by the Sub-Inspector from P.W 1 as soon as he arrived at the house of the deceased, is inadmissible in evidence. The argument is that the Sub-Inspector received information from the Head Constable which led him to suspect the commission of an offence which he was empowered under Section 156 of the Cr PC, to investigate. Section 157 of the Cr PC, provides' that in such circumstances the officer in charge of a police station after sending a report of the same to a Magistrate empowered to take cognizance of the offence shall proceed in person to the spot to investigate the facts and circumstances of the case. Since Ex. B was recorded by the Sub-Inspector after he had gone to the house in order to find out the truth of the matter we are asked to say that Ex. B is a statement recorded during an investigation under Ch. 14, Code of Criminal Procedure, and therefore inadmissible under S. 162 of the same Code. We do not think that there is any substance in this contention. The question whether Ex. B was recorded during investigation or not is a question of fact. The Sub-Inspector had no information of the commission of a cognizable offence when he went to the house of the deceased. He was merely told that there had been a shooting incident; whether the shooting was due to accident or design he did not know. When he got to the house he saw the corpse of Kuppuswami Chetti in the open yard at the back and according to his evidence he then took down a statement, Ex. B, from P.W 1. Now it is clearly only after recording the statement that the Sub-Inspector can have any real information of the commission of a cognizable offence. It is impossible to say that this statement was recorded by the Sub-Inspector in the course of an investigation into this offence. The case is very similar to the case of telegrams sent to a police station upon which the police naturally take action: vide 55 MLJ 231.1 We are satisfied that Ex. V is not inadmissible by reason of the provisions of S. 162 of the Code.

8. The other criticizms of a negative kind are that one Kanni Chetti who is said to have been in the open yard at the time of the murder was not examined as well as that Nagamanikam Chetti was not examined as a prosecution witness. The Sub-Inspector of Police said that Kanni Chetti had been dispensed with, though cited in the charge sheet, because he had information that Kanni Chetti had been gained over and was hostile to the prosecution. As for Nagamanickam Chetti it is quite clear that he would have been a hostile witness and there was adequate reason for dispensing with him. In our opinion the learned Sessions Judge (who has commented favourably upon the demeanour of P.Ws 1 and 2 in the box) was justified in relying upon the evidence of P.Ws 1, 2, 4, 5 and 6. There is no ascertainable reason why those witnesses should have falsely implicated this appellant. It is interesting to observe that one wild suggestion which was made was that the murder had probably been committed by Ponnuswami who himself had wanted to marry P.W 7's daughter. Fortunately the learned Sessions Judge was able to give that suggestion its quietus because Ponnuswami happened to be in Court. He was made to stand up and shown to the assessors and it was observed that both in figure and feature he was of a quite different type from the appellant. We do not think there is any foundation for the suggestion that the prosecution witnesses did not know who had committed this crime. The conviction of the appellant is in our opinion, correct beyond the possibility of any reasonable doubt. As the learned Sessions Judge observes the only possible sentence in a case like this is a sentence of death. We therefore confirm the conviction and the sentence of death and dismiss this appeal.

C.R.K/B.D

9. Appeal dismissed.