In Re, Nainamalai Konan

JUDGMENT

The accused Nainamalai Konan has been convicted at the Sessions of the Salem Division of the murder of a woman named Kuppayi and sentenced to death. The case comes to me under Sect. 378, Criminal Procedure Code owing to a difference of opinion between the learned Officiating Chief Justice and Mr. Justice Krishnaswami Rao.

The circumstances connecting the accused with the crime are (1) that the accused came to the field hut where deceased was with her husband (prosecution witness 7) her stepson (prosecution witness 10) and that stepson's wife (prosecution witness 8) at about 7 P. M. and called her premising to give her paddy to the value of Rs. 2 for the interest he owed her on a loan, and that her dead body was found about midnight on March 4th 1921 placed at a corner of a lane in the village where accused's house is (2) that the next morning he said he had kept the jewels, which were missing from the deceased's corpse, in his house and that he would produce them and (3) that he proceeded to unlock his house and produce the jewels from a pot in the presence of witnesses and that they were identified by the deceased's relations as belonging to her and as having been worn by her the previous night.

The most important evidence in the case is that which relates to the discovery of the murdered woman's jewels and the statement of the accused which led to their production. The statement made by the accused may, even though the police were present, be proved under Sect. 27, Indian Evidence Act, so far as it relates to any material fact discovered in consequence and therefore Ex. D which bears the signatures of prosecution witnesses 3, 4, 5, 6 and three persons who were not examined as witnesses is relevant Vide Manjunathaya v. King Emperor. In this connection has to be considered the statement of prosecution witness 10 that when accused produced the jewels he said nothing.

The possession of the jewels, if unexplained, is presumptive evidence that the accused was the murderer as well as that he committed theft Vide Queen Empress v. Sami.

The difficulty that I feel in dealing with this part of the case is that I do not know what the accused's defence is. This is owing to the Sessions Judge's omission to question the accused generally on the case after the witnesses for the prosecution had been examined in order that he might explain, if he could, the circumstances appearing against him in their evidence. In the committing Magistrate's Court the only question put to him before the charge was the stereotyped one “you have heard the witnesses, what do you say ?” and his answer was “I shall state in the Sessions Court”. Again after the charge was read to him he was only asked if he had any witnesses. In the Sessions Court a document, which is termed “accused's written statement” but was not signed by him, and is in form and substance a string of arguments to be advanced in favour of the accused signed only by accused's vakil, was allowed to be placed on the record, as though the Court had the powers of a Magistrate to file it under Sect. 256 (2), Criminal Procedure Code.

The only questions put by the Sessions Judge to the accused were whether his statement in the Lower Court was correct, whether he wished to add anything, and whether he was going to examine defence witnesses. He was not asked whether the jewels, material objects I to IV, were in his possession at any time after Kuppayi's death, and if so, in what manner he accounted for their coming into his possession, whether he made any statement respecting his possession of them before they were produced, and whether the deceased woman was in his company shortly before her death, and if so, how she came by her end. In his appeal petition it is mentioned that when accused's house was searched a new toddy pot was found, that it did not belong to him, that he was beaten and made to bring it outside, that he was induced by threats and promises to confess to having taken the jewels and that he made no statement in the Magistrate's Court. This case is not altogether consistent with the so-called written statement filed in the Sessions Court.

It has recently been held by two learned Judges of the Patna High Court that the omission of a Sessions Judge to comply with the mandatory provisions of Sect. 342 vitiated the trial and that a written statement filed by an accused would net take the place of an examination under this section (see Raghu Bhumji v. The King Emperor. A Bench of the Bombay High Court expressed a similar view in Basapa Ningapa v. Emperor and there is another case (Emperor v. Nga Po Mya. This Court has laid down that it is essential to comply with the provisions of Sect. 342 in Referred Trial No. 61 of 1885, Weir Vol. II, page 125 at page 134, in Referred Trial No. 51 of 1885, Weir Vol. II, page 405 and in Criminal Appeal No. 19 of 1890, Weir, Vol. II, page 405, and the learned Judges in the circumstances of the last case directed the accused to be retried for the reason that the omission on the part of the Court to question the accused might have operated to produce a non-disclosure of the case for the defence and the with-holding of evidence material for the defence.

In this case I think that, as the accused was not asked at the trial to account for the facts appearing in evidence against him, he may not then have realised the necessity of meeting the prosecution case and the serious consequences to himself of allowing it to go unchallenged, that he woke up to his position after sentence of death was passed and that if he had done so earlier he might have examined witnesses to prove that he was compelled to confess. If this is so, it would be to his prejudice to accept the prosecution Story without knowing what be had to say in answer to each part of that story and without giving him another chance of examining defence witnesses to prove that his explanation was true.

I therefore set aside the conviction and direct the accused to be retried.

S. S.Conviction set aside. Retrial ordered.