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Case Number

Criminal Appeal No. 151 of 1939 and Referred Trial No. 33 of 1939

Advocates

R. Sadasivam Pillai for appellant.
Public Prosecutor (V.L Ethiraj) for the Crown.

Judges

Burn
Stodart, JJ.

Acts

Section 162 of the Criminal Procedure Code has repealed Section 27 of the Indian Evidence Act
Section 1(2) of the Code of Criminal Procedure, and that Section 162
SECTION 162 CRIMINAL PROCEDURE CODE
Section 1(2) of the Criminal Procedure Code
Section 27 of the Indian Evidence Act.
SECTION 27 EVIDENCE ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The accused, Subbiah Tevar, was convicted and sentenced to death for the murder of Sundarammal. He filed two petitions by way of appeal. In a statement under Section 342 to the Sessions Judge the accused claimed that the Sub-Inspector of Police (P.W. 9) concocted the case against him because he refused to give fodder for his bulls. In one appeal petition the accused asserted that the case had been concocted by enemies because he had been the principal witness in a murder case five years earlier. The referred trial presented the question whether the sentence of death should be confirmed.

The factual findings in the trial, as recorded in the opinion, include:

Sundarammal, aged about 60, was murdered in her field on the morning of Saturday, 30th July. She was seen heading to her field in the early morning by P.W. 5 (her daughter) and P.W. 6 (a neighbour), and again in the field about 8 A.M. by P.W. 7. Her son (P.W. 4) found her dead at midday near the well with facial and frontal head injuries and blood-stained stones nearby.
A motive tied to robbery of ear ornaments (gold mudichus) was identified: the right ear-lobe was torn and lacerated and the left ear-lobe was completely cut off; the mudichus were missing though P.W. 5 and P.W. 6 recalled seeing them that morning.
P.W. 9 (Sub-Inspector) conducted the inquest the following morning, sent blood-stained stones/earth for examination, and the Chemical Examiner and Imperial Serologist reported human blood stains.
The crime scene was about 1.5 miles from the village in high cholam crop; there was initially no clear clue to the murderer.
The accused belonged to a registered Criminal Tribe and was bound to report intentions to leave the village; he was absent without reporting. After suspicion arose, the Sub-Inspector left instructions to report the accused's whereabouts. On 26th August P.W. 10 found the accused sleeping in his field, informed the Sub-Inspector, who arrested the accused. In the presence of the Village Munsif (P.W. 11) and others, the accused made a recorded statement (Ex. J) admitting that he cut mudichus from Sundarammal's ears and had hidden them; he subsequently produced the mudichus from a hiding place in his house when shown to the hiding place.

Legal Issues Presented

Whether the sentence of death imposed on the accused should be confirmed.
Whether statements made to a police officer by an accused person (after arrest), even if they lead to the discovery of a fact and thus fall within Section 27 of the Indian Evidence Act, are excluded from admissibility by Section 162 of the Code of Criminal Procedure (i.e., whether Section 162 effectively ousts or repeals the operation of Section 27 in such circumstances).

Arguments of the Parties

Appellant's Arguments

Factual/contention-based arguments by the accused (as recorded under Section 342): that the Sub-Inspector concocted the case because the accused refused to give fodder for bulls; alternatively, that enemies concocted the charge because the accused had earlier been a principal witness in another murder.
Legal argument of counsel on appeal: statements made to police by an accused person after arrest, even where they would qualify under Section 27 of the Indian Evidence Act (as information causing discovery of fact), are nevertheless inadmissible under Section 162 of the Criminal Procedure Code, which bars use of statements made to police in the course of investigation.

The opinion does not set out adversary submissions from the prosecution in detail; the court's account focuses on the evidence and the single legal point raised on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pakala Narayanaswami v. The King-Emperor (1939) 1 M.L.J. 756 : L.R. 66 I.A. 66 : I.L.R. 18 Pat. 234 (P.C.)	The Privy Council held that statements made before arrest to a police officer by a person ultimately accused were shut out under Section 162 of the Code of Criminal Procedure; the court also discussed whether Section 162 would pro tanto repeal Section 27 of the Evidence Act but expressed no final opinion on that specific point.	The court examined the decision and concluded that Pakala does not decide the question whether Section 162 repeals Section 27; therefore the Privy Council decision did not, in the court's view, disturb the previously established rule of the High Court that statements leading to discovery under Section 27 remain admissible.
Thimmappa v. Thimmappa (1928) 55 M.L.J. 351 : I.L.R. 51 Mad. 967 (F.B.)	Recognition that Section 27 of the Indian Evidence Act operates as a special law that is not derogated from by the general provision in Section 162 of the Code of Criminal Procedure; application of Section 1(2) CrPC principle ("Nothing herein contained shall affect any special law now in force").	The court relied on this authority (the dictum of Ramesam, J.) to support the proposition that Section 27 remains applicable to produce admissible discovery evidence despite Section 162, treating Section 27 as a special law.
Syamo Maha Patro, In re (1932) 62 M.L.J. 742 : I.L.R. 55 Mad. 903 (F.B.)	Similarly supports the view that Section 27 is a 'special law' and is not displaced by Section 162 of the Code of Criminal Procedure.	The court cited the opinions of Reilly and Sundaram Chetty, JJ., in this case to reinforce the settled rule followed by the High Court that statements leading to discovery under Section 27 are admissible notwithstanding Section 162.

Court's Reasoning and Analysis

The court's legal analysis proceeded in two linked strands: admissibility of the accused's statement and evaluation of the sufficiency of the evidence for conviction and sentence.

On admissibility, the court acknowledged that Section 162 of the Code of Criminal Procedure is broadly worded and by its terms can exclude statements made to police officers. However, the court observed a long line of prior decisions of this High Court and other High Courts which had held that Section 162 does not exclude statements admissible under Section 27 of the Indian Evidence Act (that is, statements which lead to the discovery of a fact). The court examined the Privy Council decision in Pakala Narayanaswami, noting that the Privy Council held that pre-arrest statements to police could be shut out under Section 162, but also that the Privy Council did not finally decide whether Section 162 had the effect of repealing Section 27. The court read Pakala as not disturbing the settled rule in the High Court and pointed to recent authoritative decisions of this High Court (Thimmappa and Syamo Maha Patro) that treat Section 27 as a special law protected by Section 1(2) of the Code of Criminal Procedure (generalia specialibus non derogant). On that basis the court held that the portions of the accused's recorded statement which led to the discovery of the mudichus were admissible under Section 27.

On the facts, the court accepted the Sessions Judge's factual findings: the accused was absent from the village immediately after the crime and had a statutory obligation to inform authorities when leaving (and failed to do so); the accused's recorded statement placed him at the scene at a time shortly after the deceased was last seen alive and admitted cutting her ear-lobes and hiding the mudichus; the condition of the deceased's ears and the accused's production of the mudichus from the hiding place corroborated the admissible parts of his statement. The court concluded that the person who cut Sundarammal's ears in the circumstances described was, in all human probability, the person who murdered her, and that no motive for the murder had been established against anyone else. The court therefore found the charge proved.

Finally, on sentencing, the court considered the brutality of the crime and concluded that the extreme penalty was appropriate.

Holding and Implications

CONVICTION AND SENTENCE OF DEATH CONFIRMED.

Direct consequences for the parties:

The court rejected the accused's appeal on both factual and legal grounds and confirmed his conviction for murder.
The court confirmed the death sentence imposed by the Sessions Judge, holding that the extreme penalty was appropriate given the brutality of the offence.

Broader implications:

The opinion follows and reiterates the settled rule of this High Court that statements which lead to the discovery of facts and thus fall within Section 27 of the Indian Evidence Act remain admissible despite the general prohibition in Section 162 of the Code of Criminal Procedure. The court held that the Privy Council's decision in Pakala Narayanaswami did not displace that rule. The opinion does not purport to establish a new legal principle beyond adherence to the prior authorities it cites; its outcome is the confirmation of conviction and sentence based on the admissible statement and corroborating material.

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Subbiah Tevar, In Re

1. The accused Subbiah Tevarhas been convicted and sentenced to death for the murder of Sundarammal. He has filed two petitions by way of appeal. In his statement made under Section 342 to the Sessions Judge he declared that the Sub-Inspector of Police P.W. 9 concocted the case against him because he refused to give him fodder for his bulls. In one of his appeal petitions he states that the case has been concocted against him by enemies because he was the principal witness in a murder case five years ago. In the referred trial the question for our decision is whether the sentence of death should not be confirmed.

2. There is no doubt that Sundarammal a woman of 60 was murdered in her field on the morning of Saturday, the 30th July. She was seen in the early morning when she set out for her field, by her daughter P.W. 5 who lives in the opposite house and by P.W. 6 her next door neighbour, and she was seen again by P.W. 7 in her field about 8 A.M. At midday her son P.W. 4 when he went to the field to take her midday meal found her lying dead near the well. Her face and the front of her head had been battered in. There was blood on the ground there. It was clear that she had been murdered there. A blood-stained stone lay near the body.

3. The motive for the murder was clear. The right ear-lobe was torn and lacerated. The left ear-lobe was completely cut off. Gold mudichus - a kind of ear ornament - which her daughter P.W. 5 had lent to the deceased the previous day to wear when she went to a neighbouring village on a visit of condolence were missing. P.W. 5 and P.W. 6 say they saw these mudichus in the ears of the deceased on the morning of the crime.

4. P.W. 9 the Sub-Inspector reached the village at 7 P.M. He held the inquest early next morning. The blood-stained stones and earth from the place where the body was lying and the blood-stained stone with which the murder might have been committed were sent by him with other things to be examined by the Chemical Examiner and Imperial Serologist and were found to be stained with human blood.

5. There was no clue to the murderer. The scene of crime is 11/2 miles from the village: the cholam crop in the field was high: the unfortunate woman had evidently been taken unawares and killed without the knowledge of anyone who might have been in the surrounding fields.

6. The accused is a member of a registered Criminal Tribe who was bound to report to the authorities when he intended to leave the village. He was absent and he had not made any report. For this reason and because he suspected that the accused might have had something to do with the murder, the Sub-Inspector left instructions in the village that the whereabouts of the accused should be reported to him. On the morning of the 26th August, P. W. lOarelationof the deceased found the accused sleeping in his field and went off to the police station four miles away to tell the Sub-Inspector. The latter happened to be at Kurukkalpatti on the main road not far away and received this information at 12-30 P. M. He went to the village at once and to the place where the accused was, and arrested him. The accused then made a statement which is the principal evidence against him. He made it in the presence of the Village Munsif P.W. 11, P.W. 12 and P.W. 10. He said according to P.W. 11 and P.W. 12:

I tore the earlobes of Sundarammal and took her mudichus. She raised an alarm.... I have kept the mudichus in my house. I shall produce them.

P.W. 10's recollection of this statement however is simply that the accused said:

I have kept the concerned property in my house in a hole made for a rafter in one corner, and I shall produce it.

P.W. 11 and P.W. 12 also say that the accused stated that he had killed Sundarammal with a black stone so that she might not disclose the robbery. But that part of the statement is not admissible in evidence since it did not, within the meaning of Section 27 of the Indian Evidence Act, lead to the discovery of any fact. P.W. 11 the Village Munsif deposes that when the accused was making this statement he took it down in writing and the record of it is Ex. J. In Ex. J, the admissible portions are:

On a Saturday, 26 days ago, in the morning my concubine Muthammal went out towards the south to gather cowdung. I followed her. Sundarammal was sitting at a place to the west of the well and to the north of the Kamalai pit. I suddenly cut the two mudichus from both her ears. (Then comes the inadmissible portion.) I left her at the same place, came to my village tied the two mudichus in a dirty white cloth with a green border and kept it in a hole in the southern wall in the southeastern corner of the house in which I live. I shall take it and deliver it up. I should be protected.

Though the persons who heard the accused making this statement do not remember the whole of it, there is no reason to disbelieve the Village Munsif when he says that Ex. J is a correct record of what the accused said.

7. Following on this the Sub-Inspector and the accused and the Village Munsif and P.W. 12 and P.W. 10 and P.W. 13 a neighbour of the accused went at once to the accused's house. In their presence the accused took the jewels from their hiding place and handed them over to the Sub-Inspector.

8. That is all the evidence against the accused. It is plain, consistent and straightforward and has been believed by the learned Sessions Judge and learned Counsel who appears for the appellant has not attempted to show that there are any grounds on which it should be rejected. His appeal rests on a point of law. He contends that statements made to the police by an accused person after his arrest, though they may come within the meaning of Section 27 of the Evidence Act, are inadmissible under Section 162 of the Criminal Procedure Code. Section 162 is:

No statement made by any person to a police officer in the course of an investigation shall...be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made.

This section is clearly wide enough to include statements made to a police officer which would be admissible under Section 27 as constituting information in consequence of which some fact has been discovered. But it has been held by this High Court and by other High Courts in a long series of decisions that Section 162 does not shut out statements which are admissible under Section 27 of the Evidence Act. That must, now be regarded as settled law. Learned Counsel contends however that this settled rule has been abrogated by a recent decision of the Judicial Committee of the Privy Council, Pakala Narayanaswami v. The King-Emperor (1939) 1 M.L.J. 756 : L.R. 66 I.A. 66 : I.L.R. 18 Pat. 234 (P.C.). We have examined that decision very carefully and we do not think that it disturbs the course of decisions of this and other Courts. In that case one of the questions at issue was the admissibility of statements made before arrest to a police officer by a person ultimately accused. The Privy Council held that such statements were shut out under Section 162 of the Criminal Procedure Code. Incidentally the Privy Council when considering the scope of Section 162 discussed a view which had been taken by some of the High Courts in India that Section 162 referred to statements made in the course of a police investigation by witnesses only and not by accused persons. And the Privy Council differing from that view - which I might observe has not been the view of this High Court - proceeded to make some observations relating to the reasons on which that view had been based. The principal reason was that if Section 162 of the Criminal Procedure Code applied to statements by accused persons it would amount to a repeal of Section 27 of the Indian Evidence Act. On this point the Judicial Committee observed:

The words of Section 162 are plainly wide enough to exclude any confession made to a police officer in the course of investigation whether discovery is made or not. They may therefore pro tanto repeal the provisions of the section which would otherwise apply. If they do not, presumably, it would be on the ground that Section 27 of the Evidence Act is a special law within the meaning of Section 1(2) of the Code of Criminal Procedure, and that Section 162 is not a specific provision to the contrary. Their Lordships express no opinion on this topic.

9. The question therefore whether Section 162 of the Criminal Procedure Code has repealed Section 27 of the Indian Evidence Act so far as statements made to a police officer are concerned has not been here decided by the Privy Council and we are not therefore debarred by this decision from following the rule laid down in previous decisions of this Court. We may observe that it has been recently held specifically by learned Judges of this Court that though Section 162 of the Criminal Procedure Code applies to statements made by accused persons, nevertheless Section 27 of the Indian Evidence Act is a 'special law' which is not derogated from by the general rule enacted in Section 162. See the dictum of Ramesam, J., as he then was in Thimmappa v. Thimmappa (1928) 55 M.L.J. 351 : I.L.R. 51 Mad. 967 (F.B.) and of Reilly and Sundaram Chetty, JJ., in Syamo Maha Patro, In re (1932) 62 M.L.J. 742 : I.L.R. 55 Mad. 903 (F.B.). The rule laid down in Section 1(2) of the Criminal Procedure Code "Nothing herein contained shall affect any special law now in force" is an application of the maxim "generalia specialibus non derogant".

10. The statements made by the accused in this case on the 26th August being admissible in evidence we agree with the learned Sessions Judge that the charge against him is proved. He was absent from the village immediately after the crime. He was under a special obligation to intimate his absence to the police and did not do so. He stated that, at the place where the murder was committed, and at a time which is shortly after the deceased was last seen alive, he came upon her suddenly and cut her ear-lobes and took her mudichus and hid them in his house. That statement is corroborated by the condition of the ears as seen on the body of the deceased and by the accused's production of the mudichus from the place in his house where they were hidden. The man who cut the ears of the deceased that Saturday morning when the deceased was sitting near the well in her field - and the accused has admitted that he was that man - was in all human probability the man who murdered her. No motive has been proved against anyone other than the accused to murder this old woman. The only reason for her death was the need to silence her. That reason existed only for the accused. We reject his appeal and confirm his conviction for murder.

As for the sentence the extreme penalty is the only punishment appropriate for such a brutal crime. We confirm the sentence of death passed by the learned Sessions Judge.

Subbiah Tevar, In Re

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Subbiah Tevar, In Re

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