Madras High Court
Emperor vs Kuppammal on 21 August, 1940
Equivalent citations: AIR1941MAD1, AIR 1941 MADRAS 1
JUDGMENT Krishnaswami Ayyangar, J.
1. The accused in this case has been charged with having committed the offence of murder by intentionally causing the death of her new born infant by drowning it in a Corporation syphon (cess-pool) on or about 9th April 1940 at Madras. The facts, deposed to by the witnesses called for the prosecution may be briefly summarised as follows:
The accused is a widow with six children living at No. 16, Bhashyakaralu Naidu Street, George Town, Madras. She was keeping a botol-nut shop in No. 51, Krishnappa Naicken Agraharam, George Town. On the morning of 10th April last at about 10 A.M. Madurai Naicker, P.W. 1, living in No. 30, Bhashyakaralu Naidu Street, found that the drain in his court-yard was obstructed. He went out to tho street and examined the syphon in front of his house to find out what the cause of obstruction was. He removed the cement lid and then removed the iron bucket in the syphon; and when he looked in, he found first, five fingers of the palm of the left hand of a dead child and then he noticed also the head. He went to the police station at the Seven Wells almost immediately and reported to the head constable present at the police station what he found in the syphon. The Sub-Inspector in charge of that station (Mr. Ramanujam) examined as P.W. 12, followed by a constable and a head constable came to the front of Madurai Naicker's house and found in the syphon the hand and head of a dead child as reported by Madurai Naicker. The body was taken out at the instance of the police by Jogi Veeraraghavan and it was found to be the dead body of a recently born male child. The Hub-Inspector, P.W. 12, had the body removed to the police station and from there it was sent under police custody to the general hospital for post-mortem examination. Dr. Srinivasalu Naidu, P.W. 3, Professor of Medical Jurisprudence attached to the Medical College, Madras, held the post-mortem examination and found the condition of the corpse in the state described by him in his certificate. It is unnecessary to go into details for the present purpose; but DR. Srinivasalu Naidu expressed the opinion in his certificate that the infant over whose body he held the post-mortem examination should have been alive when born and drowned in the cess-pool - an opinion which he repeated in his evidence before the Court here. The accused was arrested at about 11-30 on loth April 1940 by P.W. 12 and three sarees were seized from her. That night she was sent by Mr. Ramaseshan, Sub-Inspector, Grimes Branch (P.W. 14) to the Gosha Hospital, Triplicane, for medical examination. Miss Oommen, the Resident Medical Officer of the Hospital, examined the person of the accused at 3 A.M. on the morning of 11th April 1940 and from the appearances found she came to the conclusion that she must have been recently delivered of a child and that opinion was repeated by her before this Court during the course of the evidence that she gave here. The three articles of clothing seized from the accused by P.W. 12 along with another saree and a jacket recovered from her at the Gosha Hospital were sent to the Government Chemical Examiner, and on examination he detected blood on one of the articles, namely M.O. 1, a torn, dirty, grey, cotton cloth with red and white cross stripes and red, green and white borders, on which were brownish stains. This was one of the three articles seized by Sub-Inspector Ramanujam from the accused when he arrested her on 10th April 1940. A specimen of the stains found on it was sent to the Imperial Serologist for the purpose of ascertaining whether the stains were stains of human blood and his report (Ex. G-1) which has been exhibited on the side of the prosecution is that the cloth (M.O. l) was stained with human blood. Mr. Ramaseshan who was examined as P.W. 14, Sub-Inspector of the Crime Branch, was in charge of the investigation. It was he who took charge of the articles of clothing seized by P.W. 12 and also of those recovered from the accused at the Gosha Hospital.
2. Evidence has been called by the prosecution of three witnesses, namely P.Ws. 6, 7 and 8, two of whom, P.Ws. 6 and 8 were tenants living in No. 51, Krishnappa Naicken Agraharam, the place where the accused was keeping the betel-nut shop, and the third P.W. 7, was the owner of the house. Briefly their evidence is that they had seen her about 6th or 7th April and found her abdomen prominent, in other words, found signs of advanced pregnancy on her. On the night of the 10th when the accused was arrested, P.W. 7 the owner of the house was there and noticed that the size of the accused's abdomen had diminished or, as he put it, it was not so big as it was before. That statement is corroborated by the evidence of P.W. 8, a goldsmith, who was a tenant in the same house as the one in which the accused was having her shop. The prosecution also called the Kanakupillai in charge of the burial ground at Washermanpet to which place the bodies of persons who died in Bhashyakaralu Naidu Street are ordinarily taken. He deposed that no dead body of any child was brought to the burial ground between 8th and 11th April last.
3. This is the substance of the evidence adduced by the prosecution. It seems to me that here is a quantity of evidence tending to show, if believed, that the accused was seen in an advanced state of pregnancy about 6th or 7th April last and was delivered of a child on or about 9th April. The evidence, if believed, would seem to establish that on the morning of the 10th there was found in the syphon in front of Madurai Naicker's house the dead body of a recently born male child; but there is no evidence that that child was the child born to the accused, nor any direct evidence tending to show that it was the accused that deposited the child in the syphon. The charge against the accused, it may be remembered, is that she intentionally caused the death of her new born infant by drowning it in the Corporation syphon. That being the charge against her the prosecution must not only prove that she was recently delivered of a child but also that the body of the child found in the cess-pool was the, body of her child. The facts deposed to by the prosecution witnesses no doubt amount to circumstances causing a suspicion against the accused; but in the trial of an accused for a crime, or for that matter even in the trial of a civil cause, suspicion cannot be made the ground of a finding by the Court or jury as the case may be.
4. Learned Counsel for the accused placed before me for my consideration the decision in Reg. v. Williams (1867) 11 Cox. C.C. 684, of Montague Smith J. That was a case in which the learned Judge held that there was no sufficient evidence to go to the jury on the offence charged and accordingly directed them to return a verdict of not guilty. The offence charged was that the accused had concealed the dead body of her newly born infant. The facts proved in that case by the prosecution are clearly stated in the head-note. A woman apparently pregnant, while staying at an inn at Stafford, received by post, on 28th August 1870, a Rugby newspaper, with the Rugby post mark on it. On the same day her appearance and the state of her room seemed to indicate that she had been delivered of a child. She left for Shrewsburry next morning, carrying a parcel. That afternoon a parcel was found in a waiting room at Stafford station. It was the dead body of a newly born child, wrapped in a Rugby Gazette of 27th August 1870, bearing the Rugby post mark. There is a railway from Stafford to Shrewsbury, but no proof was given of the woman having been at the Stafford station. The judgment which was very short was as follows:
It is impossible to proceed with this ease. The gist of the offence charged in the indictment is the concealment, by the prisoner, of the dead body of her child (the italics are mine). The evidence as to the identification of the body does not seem to me sufficient. A man cannot be convicted of murder unless the corpse of the murdered person is found, otherwise the prisoner charged might be executed, and the individual supposed to have been killed by him proved to be in fact living. So in the present case, the child of which the prisoner is said to have been delivered may, at this moment, be somewhere alive. I must direct you to return a verdict of not guilty.
5. The facts of this case come very close to the facts of the case now before me. There was in that case, as in this, evidence sufficient to go to the jury that the accused was seen in an advanced state of pregnancy on 28th August 1870. There was evidence in that case, as in this that her appearance and the state of the room that she occupied in the inn on the date of the alleged offence indicated that she had been delivered of a child. There was however in that ease, one circumstance for which there is no counter part here, viz., that she left for Shrewsbury next morning carrying a parcel. A parcel was found at the Stafford station containing the dead body of a newly born child and there was a railway from Stafford to Shrewsbury. This circumstance has its counterpart in the present case in the fact that there was in the syphon in front of Madhurai Naicker's house the dead body of a newly born infant. What was not proved in that case, was that the woman was seen at the Stafford station. What is not proved in this case is that the woman was seen near or about the syphon in which the body of the child was discovered. It will therefore be quite apparent that, if there was no evidence to go to the jury in the case cited, it cannot be held that there is evidence in the case before me either sufficient in quantity or character to put it before the jury.
6. It is, however, necessary to refer to one other matter in this connexion. Practically the same evidence as the evidence adduced in this Court seems to have been put before the Magistrate who has committed the case to the Sessions. I have seen the record of the depositions of the prosecution witnesses before the committing Magistrate and I am satisfied that there was no evidence before the committing Magistrate to indicate that the body found in the syphon was the body of the child born to the accused. In other words, the link, that is wanting before me was wanting also in the committing Magistrate's Court. That is to say, the evidence such as it was recorded by the committing Magistrate was not sufficient to implicate the accused. At the end of the evidence adduced by the prosecution before him the committing Magistrate put the following questions and recorded the following answers:
Q. Have you any witnesses to be examined on you r behalf here?
A. No. Q. You have heard the evidence of the prosecution witnesses. What have you to say?
A. What I did is a wrong act. The police have taken charge of the bangle, which I was wearing. I have six children. I was carrying and I gave birth to a child. I went to the latrine and there I gave birth to a still born child. I kept the child for about ten minutes and as there was no life I took it find threw it in the cess-pool opposite.
7. If this answer was an answer which could be said to have been duly recorded within the meaning of Section 287, Criminal P.C., it would undoubtedly take the case of the prosecution much farther in that it provided material upon which the missing link could be found. Section 287, Criminal P.C., says this:
The examination of the accused duly recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence.
8. As I indicated, if the examination of the accused which resulted in the answers which I read just now can be said to have been duly recorded by the committing Magistrate, the answers should he tendered by the prosecution and it is open to the Court to read those answers as evidence in the case. I may at once say that the prosecution did tender the record of the examination of the accused by the committing Magistrate and the only question for consideration is whether it could be read as evidence in this case. The condition for its being read as evidence is that it should have been duly recorded as I have said. For the purpose of finding out whether the answers can be said to have been duly recorded, reference must be made to Sections 209 and 342, Criminal P.C. Section 209 says:
1. When the evidence referred to in Section 208, Sub-sections (1) and (3) (that is, the evidence of the complainant and the evidence of the witnesses called and the documents produced by the prosecution) has been taken, and he has if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
2. Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
9. The section makes it clear that the Magistrate is to examine the accused not for the purpose of filling gaps in the prosecution but for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. It may be that it is not obligatory on the Magistrate to examine the accused unless he decides to commit the accused, in which case he is bound tq examine the accused and that only for the purpose mentioned. Section 342 lays down the rule of procedure on this point in almost the same terms. Section 342(1) says:
For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
10. Clause (3) says:
The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
11. Section 342, as I understand it, is applicable not only to the trial before the Court of Session but is applicable also to the enquiry before the committing Magistrate. Both these Sections 209 and 342 cast upon the Magistrate the duty to interrogate the accused if the facts and circumstances proved are of such a nature that they tend, if unexplained, to implicate the accused. The interrogation is to be made in order to afford him an opportunity for offering an explanation. Section 80, Evidence Act, relating to the presumption regarding documents produced as a record of evidence says:
Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
12. The section merely purports to lay down the presumption to be drawn in the absence of positive evidence, viz., that a statement or confession given by an accused person or prisoner and signed by the Judge or Magistrate was taken in accordance with the law and that such statement or confession was duly taken. That presumption cannot be drawn in the present case in view of the nature and character of the evidence before the committing Magistrate which, even if taken at its face value, falls far short of making out a prima facie case against the accused. If, therefore, in a case in which the evidence so falls short, the Magistrate proceeds to examine the accused as he did in the present case, and record his answers, could it be said that the examination of the accused was duly recorded by him within the meaning of that expression in Section 287? On this point I have the advantage of the guidance afforded by the decision of a Bench of this Court in In re Abdulla Ravuthan ('16) 3 A.I.R. 1916 Mad. 407. That was a case where there were seven accused who had been charged with having forged a promissory note. The preliminary enquiry into the offence was held by the committing Magistrate who committed the accused to take their trial in the Sessions Court. There was no evidence adduced by the prosecution before the committing Magistrate to show that accused 2 forged the promissory note or that accused 6 and 7 attested the forged promissory note.
13. At the end of the prosecution evidence before the committing Magistrate, accused 2, C and 7 were asked the following question : "You heard what the prosecution witnesses stated. What do you say?", and they gave answers indicating that accused 2 had the promissory note in question prepared by his younger brother and he got the signatures of the witnesses appended to it. Accused 6 admitted that in response to a request from accused 2 he took the promissory note from the complainant and attested the document. Accused 7 also made a similar statement admitting his attestation of the promissory note charged as a forged document in the case, As against these, accused, beyond the admissions contained in the answers given by them to the committing Magistrate, the admissibility of which was in question, there was no evidence whatever. These accused were convicted and in the appeal preferred by them the point was taken that as there was no evidence given by the prosecution to connect them with the forged document, before the committing Magistrate, the Magistrate was not entitled to put any questions to them or to take any statements from them. It was said that Section 342 - the same may be said of Section 209 as well - enabled the Magistrate to examine the accused only if there were circumstances appearing against the accused in the evidence given by the prosecution and that answers given by the accused in the absence of such evidence to questions put by the Magistrate, could not be used for filling up gaps in the proof adduced by the prosecution. The appeal was heard by a very strong Bench of this Court consisting of Sir John Wallis C.J. and Coutts-Trotter J., as he then was, the judgment of the Court being delivered by the latter, The Court observed:
The admissions in the Court below were made in answer to an invitation from the committing Magistrate to say what they had to say. At the time when these statements were made in the Court of the committing Magistrate the prosecution had given no evidence at all involving any one of these accused, as appears from an examination of the record of the evidence given in that Court. Section 342, Criminal P.C., only gives the Magistrate the right to question the accused for the purpose, of enabling him to explain any circumstance appearing in the evidence against him. We think that where no evidence has been given implicating the accused, the Magistrate has no right under the statute to put questions to the accused or invite him to make a statement. We further think that if a statement is made by the accused in such circumstances it is not admissible evidence against the accused on his subsequent trial.
14. The learned Judges in support of their opinion relied upon an earlier decision of this Court in Mohideen Abdul Kadar v. Emperor ('04) 27 Mad. 238 and the decision in the English case in Reg. v. Berriman (1852) 6 Cox. C.C. 338. This decision in In re Abdulla Ravuthan ('16) 3 A.I.R. 1916 Mad. 407 contains a clear pronouncement that answers recorded by the Magistrate from the accused in the absence of evidence adduced by the prosecution implicating the accused are not admissible in the trial of the accused later in the Court of Session. Though Section 287 is not in terms referred to, it appears to my mind that when the learned Judges were considering the question of the admissibility of the answers in evidence they must have done so only with reference to Section 287. That principle that gaps in the case of the prosecution cannot be filled in by answers elicited from the accused during his examination by the Court is too well-settled to need a citation of authority. That principle is clearly stated in Basanta Kumar v. Queen-Empress ('99) 26 Cal. 49 and repeated in in Mohideen Abdul Kadar v. Emperor ('04) 27 Mad. 238. These decisions are in my view entirely consistent with the fundamental principle upon which the administration of criminal justice is founded in this country, and that is, that an accused person must be presumed to be innocent until the contrary is proved by credible testimony adduced by the Crown, a duty cast upon the prosecution and on the prosecution alone. Certain limited exceptions under specified safeguards are no doubt to be found in the Criminal Procedure Code and the Evidence Act. Statements in the nature of a confession made by an accused, provided they are free and voluntary, in other words, not induced by a promise of advantage and not procured by threats, are declared admissible by law. Apart from confessions, it appears to me that there is no warrant for supplementing the evidence for the prosecution by statements obtained from the accused as the result of judicial interrogation. The purpose of interrogation by Court or by the committing Magistrate is merely to obtain an explanation from the accused in respect of circumstances appearing against him. That this is the only legitimate purpose of the interrogation is not to be forgotten and it is not to be extended to cases where the prosecution evidence does not go far enough and tend to involve the accused in guilt.
15. I must therefore hold that in this case no proof has been adduced by the prosecution to show that the body of the child found in cess-pool was the body of the child of which the accused was delivered. Nor is there any proof that it was the accused that deposited the body in the cess-pool in front of Madurai Naicker's house. The link, the most important link, in the chain of evidence by which the offence can be brought home to the accused is wanting. I must withhold the case from the jury. (At this stage the jury are called in and addressed by his Lordship as follows:) Gentlemen, A question of very great importance has arisen for my consideration and I have come to the conclusion that there is no sufficient evidence to go to the jury. I therefore direct you to return a verdict of 'not guilty'.
(The jury accordingly returned a unanimous verdict of "not guilty.") ORDER
1. The jury at my direction having returned a unanimous verdict of "not guilty" the accused is acquitted and she will be set at liberty immediately.