(Delivered by Mockett, J.)

In this case the Public Prosecutor on behalf of the Provincial Government has appealed against the acquittal on a charge of murder of one Munigan alias Munisami, who was the second accused in S.C No. 18 of 1940 tried by the learned Sessions Judge of North Arcot Division at Vellore. This accused was charged with another, one Chinnasami alias Chenga Reddi, with the murder on the 9th of February 1940 of a woman, one Thayarammal, near the village of Kainoor. There is no question whatever that Thayarammal was murdered. Her body was found on the morning of the 10th of February, and, according to P.W 1, the doctor, there were three external injuries, wounds on it, and it is obvious that great violence has been used that could have been caused by M.O 1, a bill hook which is so commonly in evidence in these cases. According to the doctor, the death of Thayarammal might have occurred at about 2-30 in the morning on the 10th of February, which was a Saturday. Before the learned Sessions Judge the first and the second accused were acquitted of murder, but the second accused has been convicted under S. 201 of the Indian Penal Code and has been sentenced to rigorous imprisonment for five years.

Thayarammal, the deceased woman, had been kept for some time by the first accused and the witness Munisami Reddi (P.W 8). There is said to be a motive at the back of this murder, namely, that the second accused had been on intimate terms with Thayarammal's sister Salammal (P.W 7) and it was suggested in evidence that the deceased was attempting to arrange the marriage of Salammal to the brother of P.W 14. Indeed the marriage was said to have been fixed for the 11th of February. This action of the deceased is said to have been displeasing to the second accused and to have influenced him in taking the life of Thayarammal. It was alleged at the trial too that the motive which was supposed to have influenced the first accused was that the first accused was endeavouring to persuade the deceased to discard P.W 8 in his favour and that the deceased was not willing to do so. It is enough to summarise the alleged motive in that way. It rested largely on the evidence of P.Ws 4, 5 and 7, and a great deal of it unquestionably was derived from statements said to have been made by the deceased woman. There are a number of statements attributed to the deceased woman which have been admitted in evidence which were wholly inadmissible. We would invite the learned Sessions Judge's attention to a recent decision of the Judicial Committee in Narayanaswami Naidu v. Emperor (1). In this case Lord Atkin explained the provisions of S. 32 as applicable to murder cases and after that authority there should be little reason for the burdening of the record with statements of persons who subsequently died, which are totally inadmissible, as is unhappily frequently the case. The evidence against the second accused is almost entirely derived from the statements made by himself accompanied by the fact, the undoubted fact, that he was on that evening in the company of the deceased woman. It appears that on the night of the 9th, the woman, Thayarammal, who was living in the house of P.W 4, went to lie down and the next morning she was found to be missing. It was supposed she had gone to the fields to work, but no trace of her could be found and so enquiries were set on foot and, on February the 10th, P.W 6, seeing a crowd, went to it and there saw the body of the deceased woman. She still had some of her jewellery upon her, but one article of jewellery, a pair of kammals marked M.O 2 in this case, was missing. The course of events afterwards was as follows: P.W 4 made a report, which is the first information report in this case and which is marked Ex. D, and it is interesting to note in that report that P.W 4 supposes that the likely criminals were the first accused and P.W 8. On the 11th February the first accused was arrested and on the 12th the second accused was arrested. The second accused was remanded to the Sub Jail at Arkonam and remained there until the 17th, on which day the Circle Inspector (P.W 19), after obtaining permission of the Sub Magistrate questioned him in jail. It is quite obvious that he made a statement which the Circle Inspector wished to use under the provisions of S. 27 of the Evidence Act. That is evident because an application was made to the Sub Divisional Magistrate at Ranipet to have the accused transferred to police custody. The requisition on which that order was made is Ex. H and the order thereon is Ex. H-1. In it, the Circle Inspector says,

“I interviewed Manigadu alias Munisami in the Arkonam Sub Jail and he promises to show the place where he had kept the kammals in question.”

But it must be remembered that in his evidence the Inspector tells us that he had been “enquiring him”, which presumably means questioning him. The accused was taken in charge by the Inspector and was again questioned in the Sub Jail premises, outside his cell, Panchayatdars having been introduced into the jail for the purpose of hearing what he was going to say. One of them is Varadarajulu Naidu who gave evidence in this case as P.W 20. According to the Inspector, the 2nd accused then stated that the kammals worn by the deceased, Thayarammal had been handed over to him by one Valliammal and that he secreted them by the side of his house and would show the place and make recovery of the jewels; and the second accused also said that the kammals had been removed from the ears of the deceased and handed over to him immediately after Thayarammal was murdered. This statement was given in evidence in that form by the Inspector, but it was actually reduced to writing and signed by the Inspector and mediators and it is Ex. J in this case. In it the second accused made a long statement of which the learned Sessions Judge has admitted the following. It begins in the middle of a sentence with the words “Cut Thayarammal's neck.” Who it was that cut we are not allowed to know. “He cut with knife. Valliammal removed the kammal and gave it to me. I have kept the said kammal by the side of my house. I shall now show that spot. The said spot is in Kainoor. If I am taken, I shall take out and give the said kammal”. The accused did produce the kammal from a cattle shed by the side of his house in Kainoor village. But that was not all. According to Ex. J. 3 and the evidence of the Circle Inspector, after the property was taken out, the accused was further questioned about the knife with which Thayarammal was cut and in reply to that the accused said that the knife with which Thayarammal was cut was the knife which his father Thangi Reddi had brought that day from Thangavelu Mudaliar of Kainoor for cutting fibre, that after cutting Thayarammal he kept the said knife in his house and that his younger sister Ayammal took away the said knife and gave it in the house of the said Mudaliar; and he showed the house of the Mudaliar. The procedure adopted by the police in this case is, in our opinion, to be condemned. It appears to be in breach of the Standing Orders of the Madras Police. O. 583 (Madras Police Standing Orders) states quite clearly that once an accused person has been arrested, the police are strictly forbidden to interrogate him or press him to make a statement. But the Circle Inspector's own admission is that the accused was interrogated more than once; he was apparently interrogated not less than three times—once when he was in the custody of the jail authorities, and twice when he was in the custody of the police. We are further more satisfied that he was pressed to give these answers although P.W 19, the Inspector, says that he made the answer about the bill hook immediately on being questioned and without hesitation. P.W 20, who is of sufficient respectability to be summoned to be present at the questioning of prisoners, stated that the second accused was hesitating for about ten minutes before he replied to the Circle Inspector about the knife. This aspect of the case appears to have been wholly overlooked in the lower Court. This Court has on many occasions expressed its view with regard to the questioning of persons in custody. Naturally, persistent questioning may negative the impression that statements are voluntary. There are two decisions of this Court reported in Emperor v. Taduturu Poligadu (2) which contain expressions of opinion by two different Benches on this aspect. It would be extremely dangerous to attach any importance to statements made in these circumstances. There is however the fact that the second accused produced M.O 2 from the shed of his house and there is the further fact that in consequence of a statement made by him an aruval was produced. There was however no blood upon the aruval detectable. There remains the statement Ex. S which the accused made at the Magistrate's Court and his statement at the Sessions Court. In Ex. S the accused said in answer to a long question put to him by the Magistrate which was really a summary of the facts alleged against him, “I did not know that Salammal was going to be married. The first accused asked me to bring Thayarammal for the bioscope. I and the first accused are very friendly. Some enmity there is between P.W 9 and the first accused. One night the first accused and P.W 9 quarrelled. Accused 1 had told Thayar, “I told you that you should not talk to P.W 9. Why do you talk to him?” and forbade her doing so. On the night of the murder, accused 1 said to me “Bring Thayarammal. We shall go to the bioscope at Arkonam.” Myself, accused 1 and Thayar used to come to the bioscope. That day near the field of Adinarayana Reddi accused 1 asked me to hold Thayarammal's hand or arm. Accused 1 cut Thayar. I then went home. Accused 1 went away to the field to the place where sheaves lay.” After the statement was read out to him, the accused added, “Next day, at day-break on the day on which the police brought accused 1, accused 1 gave M.O 1 to me asking me to ‘keep it’”. It was contended that, on that statement, the Court was entitled to draw the inference that this man was responsible for the murder of the deceased and cases were cited to the lower Court to establish the principle on which such an inference could be made. Those cases were of the class where a single man is seen in the company of a person who is at or about that time clearly murdered and who in addition is found soon after in possession of jewels taken from the body of the deceased and who further gives no explanation which is reconcilable with the truth. This is not such a case. It must be remembered that, putting it at its highest the only evidence against the accused was that of P.Ws 10 and 11 who said that they saw him in the deceased's company at 9 and 10 P.M respectively on the night of the 9th February. But there is the accused's own statement admitting his presence with the deceased but giving an explanation as to why he was in her company, namely that he had been asked by the first accused to fetch her. He furthermore does not admit his guilt. The most he admits is that the first accused asked him to hold Thayar's hand. He has not said that at that time the first accused had an aruval in his hand or had said or done anything to indicate that he contemplated violence against Thayarammal. That such a statement may arouse suspicion against the second accused cannot be doubted; but it is not such a statement as to raise the irresistible presumption of guilt which may arise in other cases on totally different facts. It is possible that there may be some truth underlying the accused's story. It is far from certain that he is guilty of murder. On these facts there is necessarily that element of doubt to which an accused person is always entitled. So far as the appeal against the acquittal is concerned it must, in our view, be dismissed.

But the accused is also an appellant in Crl. Ap. No. 657 of 1940 against his conviction under S. 201 of the Indian Penal Code. The facts which we have set out are sufficient for the purpose of considering this appeal also. Taking the accused's own statement and putting it as much in his own favour as one can, as we have done for the purpose of the appeal of the Crown, after being present at a murder, he took from the man, who, according to him committed the murder, a kammal which was unquestionably the property of the deceased and had hid it, and we know that he produced it. It cannot possibly be said that on these facts the Court was not entitled to take the view that, when he hid this article of jewellery, he hid it with the intention of screening the offender, whoever he was, from legal punishment. We think therefore there is no substance in the appeal by the second accused and that appeal is also dismissed.

Appeals dismissed.

N.R.R