JUDGMENT

The appellant has been convicted of murder by the Sessions Judge of East Tanjore and sentenced to undergo transportation for life under S. 302, Indian Penal Code. The charge against him is that he murdered his wife Annapurni by strangling her sometime during the night of the 8th June 1938 in his house at Kuttalam. The appellant and his wife belong to rich mirasdar families. They were married in April-May 1935. The appellant was about 22 years old and his wife about 19 years old at the time of the occurrence. The appellant and his paternal uncle Sivagurunatha Pillai are the only members of a joint family which owns properties worth about three lakhs of rupees. It is clear from the judgment of the learned Sessions Judge that this paternal uncle as well as the appellant's father-in-law and the latter's relations not only did nothing to help the appellant in his defence but even actively assisted the prosecution. At least three vakils appear to have been engaged to assist the prosecution while the appellant was left to his own devices. The trial of the accused in the Sessions Court did not begin till October 1937, that is to say, till after a long interval of sixteen months during which period the appellant appears to have been in jail.

The case against the appellant rests entirely on circumstantial evidence. No eye-witness speaks to the alleged strangulation and even the medical evidence as to the cause of death is not clear or even helpful. The learned Judge does not appear to have given sufficient attention to the importance of first deciding whether the crime of murder had been committed, or in other words, whether the death of Annapurni was due to the act of another and not to her own act. It was seriously argued before him that the death was due to suicide and that it was incumbent on him to deal with this aspect of the case separately from the other question which would arise only if it was established by the prosecution that a crime had been committed in respect of the death of the deceased, because until the commission of a crime is proved, it is not incumbent on the accused to explain, nor can he be called upon to explain, anything in the evidence appearing against him. It would appear as if the evidence relating really to the connection between the alleged crime and the appellant has been relied upon to a considerable extent in support of the conclusion that a crime had been committed. So far as the cause of death is concerned, it may be that it was due to strangulation, though even on this point I am not satisfied that the medical evidence is as cogent as it might have been. The assistant surgeon who was examined on this point was not asked what experience he had of cases of strangulation: nor was he asked whether certain injuries observed by him were ante-mortem or post-mortem, questions which obviously should have been asked in order to make sure whether his opinion as to the cause of death was reliable and could be acted upon. Assuming, however, that the cause of death was strangulation the further question arises whether the strangulation was caused by the deceased herself or by the act of another. In other words, was the death suicidal or homicidal? The burden lies on the prosecution to establish that the act alleged to constitute murder was really the act of a person other than the deceased. As was laid down by their Lordships of the Judicial Committee of the Privy Council in Attygalle v. King(1) the burden is not cast upon an accused person of proving that no crime has been committed. No doubt this proposition was laid down with reference to the law in Ceylon, but the law in India is the same. Here also, as in Ceylon, there is a provision of law embodied in S. 106 of the Evidence Act to the effect that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. But this does not absolve the prosecution from the duty of proving that a crime was committed even though it is established that the accused has special knowledge on the point whether a crime was committed or not. In that case it was alleged against the accused that he had performed an illegal operation on a woman when she was under chloroform. It was laid down by the learned trial Judge in that case that as the woman who was under chloroform was unconscious, what took place while she was under the influence of chloroform was a fact specially within the knowledge of the accused and therefore the burden was laid upon the accused to show that no criminal operation took place. It was this direction in the charge to the jury that was condemned by their Lordships. This condemnation was reiterated in a subsequent Ceylon case which went up to the Judicial Committee, namely, Seneviratne v. The King. That is a case which is to some extent analogous to the present one. There also the accused was the husband of the deceased and he was charged with having killed her by administering chloroform to her, and it was contended that the death was suicidal. The evidence in that case also was entirely circumstantial and their Lordships observed, after a full consideration of the evidence, that when there is no direct evidence justifying a conviction and no medical or other circumstantial evidence justifying a conviction, “to arrive at an adverse verdict on the strength of opinions formed as to the conduct of the accused was to act upon the merest scintilla of evidence, and to be impermissible”. As in that case, so in the present, in dealing with the question of the accused's conduct and in drawing inferences therefrom it has to be borne in mind that the husband “was in danger of incurring at least moral blame” even if suicide were found to be the cause of death, and therefore much reliance cannot safely be placed on conduct which appears no doubt to indicate consciousness of some guilt.

So far as the medical evidence in the present case is concerned, it is not necessary for me to deal with it in any detail because the learned trial Judge himself has come to the conclusion that “the medical evidence in the case is not of much use in deciding whether it is a case of homicide or suicide”. The evidence does not clearly show either that the death must have been homicide or that it could not have been suicide. It leaves the question more or less at large, and no definite conclusion can be based on the medical evidence alone. The learned trial Judge thereupon in paragraph 18 of his judgment refers to “the ordinary presumption in the case of ligature strangulation in favour of homicide rather than suicide”. I do not understand exactly what the learned judge meant by this observation. There is no presumption in law that a ligature strangulation may or must be presumed to be homicidal and not suicidal. Even taking it as a presumption of fact, I am not sure that such a presumption can be safely made, and a finding that a particular strangulation was homicidal cannot possibly be made to rest on this so-called presumption. Then he goes on to observe that “there was absolutely no motive for the deceased to commit suicide and least of all to commit suicide in the manner in which she is said to have committed it.” He observes further that ‘if the deceased wanted to commit suicide, she could have done so in her grandfather's house’ and that “it must have been quite easy to have drowned herself in a well or tank” instead of strangulating herself. I am not much impressed by this reasoning; moreover, it is impossible to say that there was no motive at all for the deceased to commit suicide. There can be no doubt that the relations between the young couple and their elder relatives, were not very smooth. Further, it is the prosecution case that the husband, i.e, the appellant, was treating his wife badly for some time: if so, it could not be said that there was no motive whatever for the deceased to commit suicide. Finally, the learned Judge lays stress on the fact that “there was a motive for the accused to commit the crime,” thus begging the question whether a crime had been committed, and that his subsequent attempt to commit suicide and his subsequent conduct in having absconded from the village are circumstances which go to show that he must have committed the crime. So far as the question of motive is concerned, I shall deal with it later on, but I do not think in view of what I have said above that any inference that death was homicidal could be safely drawn from the subsequent conduct of the accused.

So far as the question of the alleged motive for murder is concerned, the evidence does not really establish the existence of any such motive.

The important fact to remember in this case is that nothing is elicited as to any unpleasantness between the husband and wife for at least three months or so before the occurrence, and if the appellant and his wife had been living together in an amicable manner to all appearances for above three months prior to the occurrence it is in my opinion unreasonable to rake up the past and build adverse conclusions thereupon. The incidents mentioned are not unusual between young couples during their first year of marriage, and from the evidence regarding the occasional “tiffs” between the couple during this period it is impossible to say that the one did not love the other or that there was no enduring affection between them.

In any case, I am of opinion that where two interpretations are possible, it is not right to adopt the interpretation which is unfavourable to the accused in preference to the other which is favourable to the accused, unless there is some specific reason which justifies the adoption of the unfavourable interpretation. In a case in which the evidence is entirely circumstantial, the Court ought to consider whether the only reasonable inference is the one which is consistent only with the guilt of the accused and inconsistent with his innocence. Where a reasonable interpretation is possible which is favourable to the prisoner, that interpretation ought not to be rejected merely because another interpretation—an unfavourable one—appears to be equally or even a little more reasonable.

The learned Judge appears to have based his decision on two main grounds, namely, that the ordinary presumption in the case of ligature strangulation is in favour of homicide rather than suicide and that while on the one hand there was no motive for the deceased to commit suicide, there was a motive for the accused to commit murder. As I have shown above, the foundation for this finding does not exist and it cannot be said that the prosecution has established clearly that the deceased's death was homicidal and could not have been suicidal.

As regards the appearances at the time the corpse was discovered, it is enough to mention that there has been an attempt to make the case stronger than it was against the appellant by introducing particulars in the course of evidence during the trial about which nothing is mentioned in the Inquest Report. For instance the Sub Inspector P.W 25, who was the first to discover the corpse, mentions no less than four details which are not to be found in the Inquest Report, namely, (1) The hands were stretched touching the body on its sides. (2) The legs also were stretched and were together. (3) The saree was undisturbed. (4) The rope was tight at the neck. It must be remembered in this connection that the Sub Inspector was examined more than a year after the occurrence and it is difficult to accept his memory as regards these details without question in the absence of any record made by him of these details at the time he observed them. Certainly the tightness of the rope was an important point which, if it had been observed at the time of the inquest, would have been noted in the Inquest Report, and this was not done. Reliance was also placed on the fact that the hands were not holding the rope as an indication that death was not suicidal. But on this point also the Inquest Report is silent. There are some other discrepancies regarding the appearances which I do not think it necessary to mention in full. For instance P.W 20, the servant boy, mentions that there was a rope tied to the toe of the corpse, about which nothing is said by any other witness. These, however, are details which do not affect the result of the case. The substantial defect in the judgment appealed from is the omission to attach sufficient importance to the determination of the question whether the death was suicidal or homicidal or in other words, to put it more accurately, whether the prosecution has established that the death was homicidal, that is to say, due to the voluntary act of some person other than the deceased, in which case alone it was necessary to go into the case further. There are no doubt circumstances relating to the subsequent conduct of the accused which justly give room for suspicion and even for strong suspicion, but I am of opinion it is not permissible to base the decision of the question whether death was homicidal or not on the circumstances appearing against the accused so far as his conduct subsequent to the occurrence is concerned, particularly in a case like this where even if the death were suicidal, moral blame would attach to the husband and his subsequent conduct might be due to the consciousness not of having committed any crime but of having done something or omitted to do something which might have led to the suicide.

All the four assessors were of opinion that the accused was not guilty. The learned Judge merely observes that he does not think that the evidence in the case warrants that opinion, and he does not give any other reason for disagreeing with the unanimous opinion of the assessors. I think in the circumstances he would have done well if he had asked the assessors for their reasons and considered them before disagreeing with their opinion.

The learned Judge in examining the appellant under S. 342, Criminal Procedure Code, appears to have observed the letter of the law and ignored its spirit. Nearly two printed pages containing a precise of the evidence against the accused were read out as it were in one breath, and the accused was asked whether he wanted to say anything. This kind of question was one which it was impossible for any one and least of all for a person accused of murder who had been kept in suspense for sixteen months before the trial began, to answer. It was impossible for him to have remembered all the points which he was asked to explain and naturally his answer does not deal with all the points. This is certainly not giving a real opportunity to the accused to explain matters appearing in the evidence against him. It is, however, unnecessary for me to dilate on this point or to deal with the other questions which have been brought to my attention in this case, because as observed already the prosecution in this case has failed to show that the death of the deceased was homicidal or in other words, was caused by the act of some person other than the deceased herself. In short, the commission of a crime has not been established and therefore the question whether the appellant is guilty does not arise.

The conviction and sentence of the appellant are set aside and the accused is acquitted under S. 423, Criminal Procedure Code.

Conviction and sentence set aside.

N.R.R