A.J. Peiris vs State Of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 18 March, 1954

Coram: Ghulam Hasan

In this matter the Supreme Court of India heard an appeal filed by special leave against the judgment and order dated 31 July 1953 issued by the Madras High Court. The High Court order had affirmed the conviction and death sentence imposed on the appellant, A J Peiris, by the Sessions Judge of South Kanara on 29 November 1952. The conviction was based on Section 120-B taken together with Section 302 and Section 109 of the Indian Penal Code. The appeal was presented before a bench consisting of the Chief Justice and Justice Ghulam Hasan, who authored the judgment.

The appellant, A J Peiris, was tried together with Augustine Souza and David Souza for allegedly conspiring with Albert Patrao between November and December 1950 to murder a man identified as George, the deceased. According to the prosecution, the murder occurred on 20 December 1950 at Kuthethur in Mangalore Taluk at approximately ten o’clock in the evening. In addition to the murder charge, the prosecution also framed a charge under Section 201 of the Indian Penal Code for causing the disappearance of evidence relating to the murder. The Sessions Judge found the appellant guilty under Section 120-B, read with Sections 302 and 109, and sentenced him to death. The two other accused were each convicted under Section 302 read with Section 34 and were also sentenced to death. No conviction was recorded on the charge under Section 201. The appellant was a native of Ceylon who at the relevant time resided in Ceylon House, Bombay, and presented himself as a wealthy diamond merchant with connections to Maharajas and other prominent clients. Between 1922 and 1942 he had amassed at least ten convictions for theft, house-breaking and related offences. In 1946 he married Lucy Patrao, who was the sister of Albert Patrao, a witness who later turned approver. David Souza was the maternal uncle of both Lucy and Albert. Around 1947 Peiris established a residence in Bangalore where he encountered George, who was then employed as a salesman in the radio shop of Suresh Trivedi. George worked for Trivedi for approximately one and a half years before leaving in the latter part of 1947. Early in 1949 Peiris relocated to Mangalore, taking up a house in which George became a member of his household. In 1950 Peiris moved to a house at Bijey, again allowing George to continue residing there. The Bijey house was richly furnished and gave visitors the impression of belonging to a prosperous man, although Peiris was frequently absent, visiting Mangalore intermittently while staying at Bijey. On 13 September 1950 the Sub-Inspector of Police, Crime Branch, Mangalore, conducted a search of this residence.

On the basis of information supplied by the Bombay Police, the Sub-Inspector of Police, Crime Branch, Mangalore, conducted a search of the house at Bijey. When the police arrived, Peiris concealed his presence, avoided the officers, and shortly thereafter disappeared, stating that he was proceeding to Bombay. Lucy remained in the house with George, and the two behaved with undue familiarity, conducting themselves as though they were husband and wife. After moving into the Bijey residence, George began to indulge in excessive drinking. Augustine and Albert became frequent visitors to the house, and the three of them often went out together and drank in company, developing an intimate friendship.

George’s immoderate drinking caused distress to Peiris, who grew nervous that George might betray him. It is alleged that, when Peiris returned to the house about one and a half months after the search, he and George exchanged heated words. In November 1950 Albert was employed in a restaurant in Bombay, but Peiris persuaded him to leave his service and accompany him to Mangalore. Albert reluctantly agreed and travelled with Peiris, arriving in Mangalore on 22 November. Upon arrival, Peiris introduced George to Albert as his clerk. According to the approver’s testimony, Peiris then informed Augustine and Albert that George drank heavily, wasted his money, and created considerable trouble, and that Peiris feared George might reveal his secrets. Peiris further told Albert that George should be murdered. Albert initially refused to join any conspiracy, but his attitude changed after Augustine promised to provide the necessary assistance. Augustine told Albert that he had agreed to murder George because Peiris had promised to pay Rs 12,000 to Augustine in order to protect his property. Although Albert remained reluctant, further discussion among the three persons on 24 and 25 November led Albert to consent to the plan.

Peiris suggested that the murder should be carried out within ten to twenty days, that the corpse should be destroyed so that no trace of identity remained, and that the head should not be identified. On 26 November Augustine proposed that the killing take place in Kulur, a location about five miles from Mangalore, and he advised Albert to involve his uncle David in the conspiracy. On 2 December Peiris sailed from Mangalore to Bombay. Not having received any further information about the events, he wrote a letter to H. K. Thingalaya (PW 13) requesting news of his household. After visiting the house at Bijey and meeting George, Thingalaya sent a telegram (P 21) on 11 December stating that all was well. On 12 December Albert approached David and suggested that he assist in George’s murder, telling David that Augustine had promised to speak to Peiris and pay him Rs 2,000. David, who was employed as a daily labourer, initially protested but subsequently consented. Having finalized their plan, the conspirators took George on 19 December from the house at Bijey to David’s house in Kuthethur where they

On the night of December 19, George was taken from the house in Bijey to David’s house in Kuthethur where he spent the night. The following day, December 20, the conspirators forced George to drink a large amount of alcohol until he was completely helpless and required assistance to rise. They then carried him to a small hillock located behind David’s house, approximately one furlong from the dwelling, and made him sit on the ground. According to the approver’s testimony, Augustine gave instructions to place a rope around George’s neck, and both Augustine and David each grasped one end of the rope and pulled them together, thereby strangling George. After the killing, the assailants removed George’s clothing and placed the garments together with his shoes in a bundle. They then moved the body approximately fifteen to twenty feet to a nearby well. The corpse was placed inside a gunny bag, which was subsequently taken to a pit that had been excavated as part of the well construction. The gunny bag was opened, and the head was severed from the trunk. The head was wrapped in a piece of cloth, while the trunk was returned to the gunny bag, which was then buried in the mound of earth that had been displaced by the well. The wrapped head, after being weighted with stones, was cast into the well. The shoes and socks were deposited on a rock near the well, and the remaining clothing was taken back to David’s house where it was burned.

On the morning of December 21, Augustine and Albert departed from David’s house. Two days later, on December 23, at approximately ten or eleven o’clock in the morning, a labourer working in the vicinity discovered the gunny bag, untied it, and observed a human hand protruding from it. He reported the finding to the village head, who in turn informed the police. Albert learned of the discovery and went to Bijey’s house, where he instructed Augustine, who was present, not to leave the house. On December 28, Lucy sent an express telegram to Peiris stating, “On receiving this wire start home.” In response, Peiris travelled by air to Madras and then by train to Mangalore, arriving on 1 January 1951. On 5 January, Peiris, his wife, his wife’s brother and sister boarded the mail train from Mangalore to Bangalore in first class. The train stopped at Podanur, where the Railway Police detained the group. They were presented before a magistrate and subsequently released on bail. On 8 January, Peiris absconded from the bail conditions and fled to Bombay, where he was arrested on 20 March 1951. He was returned to Mangalore and confined in the Sub Jail, from which he escaped in August 1951. He was later apprehended in Delhi in October 1951. On 24 July 1951, the police filed a charge-sheet against the three primary accused and Albert. Albert could not be located at that time, so the magistrate proceeded against the other accused, committing them to the Sessions Court on 4 August 1952. Albert was finally apprehended in Bombay on 28 July 1952, produced before the Seventh Presidency Magistrate, and offered to make a confession. The magistrate granted him time until 12 August to reflect on the matter.

In August the court placed Albert in custody and ordered that no police officer should have any contact with him while he reflected on the matter. His confession was formally recorded on the fourteenth, eighteenth and nineteenth of August after all procedural requirements had been fulfilled. On the twenty-fifth of August he was transferred from Bombay to Mangalore, and on the twenty-eighth the District Magistrate of South Kanara granted him a pardon, documenting the pardon in the record. Following the pardon his statement was entered as that of an approver. The inquiry before the Committing Magistrate had already been completed when Albert was examined as a supplementary witness under Section 219 of the Criminal Procedure Code, and this examination took place in the presence of the accused. The accused themselves were later examined under Section 342 of the same code. In the Sessions Court Albert withdrew the statement he had earlier made before the Committing Magistrate, and the learned Sessions Judge consequently treated the evidence that Albert had given before the Committing Magistrate as evidence taken pursuant to Section 288 of the Criminal Procedure Code.

The prosecution’s case against the appellant depended on Albert’s approver testimony, which was supported by material particulars of other prosecution evidence. The Sessions Judge accepted this corroborated evidence and convicted the appellant. On appeal, two learned judges, Balakrishna Ayyar and Chandra Reddi, affirmed the convictions of the other two accused but differed on the appellant’s guilt. Justice Balakrishna Ayyar held that the approver’s evidence regarding the appellant was fully corroborated, whereas Justice Chandra Reddi expressed doubt that a conviction could safely rest on the record material. The matter was then referred, under Section 378 of the Criminal Procedure Code, to a third judge, Rajagopalan, who concurred with Justice Balakrishna Ayyar and upheld both the conviction and the sentence. The sole issue raised on behalf of the appellant before this Court was that Albert had been an accomplice or co-accused before the Committing Magistrate, that he had not been formally discharged before the pardon was granted, and therefore his approver testimony should not have been admissible. It was also contended that, because the commitment had already occurred, only a Sessions Judge could have authorized the pardon and not the District Magistrate who actually did so. The Court found no merit in either contention. In support of the first contention reliance was placed on the authorities Mahandu v. Emperor, Alladad v. King-Emperor and Reg. v. Hanmanta. However, the facts of the present case do not sustain that argument. The District Magistrate’s order granting pardon to Albert was dated twenty-eighth August 1952, and Albert had acknowledged before the District Magistrate that the confessional statement made by him at Bombay was a copy.

In this case the Court noted that Albert had acknowledged before the District Magistrate that the confessional statement, which had been read to him, was voluntarily made by him and that he accepted it as a true account of everything that had occurred in connection with the conspiracy, the murder and the disposal of the dead body of George. On that basis the District Magistrate issued an order declaring the matter a fit case for the tender of pardon under Section 337(1) of the Criminal Procedure Code. The Court observed that no objection was raised before the lower courts that the tender of pardon was illegal because there was no separate formal order discharging Albert as an accused. The Court further expressed the view that such an objection lacked merit. It was held that the moment a pardon is tendered to an accused, the accused is to be presumed discharged, thereby ceasing to be an accused and becoming a witness. The Court then examined the first authority relied upon by the other side and found that the provisions of Section 337 of the Code of Criminal Procedure did not apply to that case. That case was distinguished because the accused there had been named in the charge-sheet filed by the police and only a promise of non-prosecution had been made, with an intention that the accused would be released on bail and examined as a witness. The police, in that situation, could not remove the person from the category of accused, as only a magistrate could order such discharge. By contrast, in the present matter the pardon was actually tendered by the magistrate and there was no evidence that Albert continued to be treated as an accused after the pardon was granted. The Court then turned to the second cited case and observed that the offence involved was not exclusively triable by a Sessions Court and the pardon had not been granted under Section 337 of the Code of Criminal Procedure. Consequently the evidence in that case was ruled inadmissible because the promise not to prosecute was given and accepted after the trial had commenced, and the witness was examined on oath while still retaining the status of an accused. Finally, regarding the third cited case, the Court noted that the tender of pardon was held illegal because the trial pertained to offences not exclusively triable by a Sessions Court. In that case the Sessions Judge, after informing the accused that the pardon was illegal, still examined them as witnesses and inquired whether they stood by their earlier statements. The High Court expressed doubt about the admissibility of such evidence, reasoning that the impression created by the promise of pardon had not been fully removed, yet it refrained from deciding the issue and proceeded on the basis that because the makers of the statements were still accused persons and had not been lawfully pardoned, they could not be examined as witnesses until a proper discharge occurred. The Court then turned to the second contention raised by the respondent and held that it was likewise without substance. By reference to Section 338 of the Criminal Procedure Code the Court affirmed that the statutory power to grant pardon exists, and therefore the objection founded on the alleged lack of a formal discharge could not succeed.

The provision permits a commitment to be made to a court, and authorises that court to extend a pardon before a judgment is delivered to any person who is alleged to have been directly or indirectly concerned with any offence, or to direct the committing magistrate or the district magistrate to grant such pardon. The section therefore confers upon the court receiving the commitment the authority either to tender a pardon itself or to order the committing magistrate or the district magistrate to do so while the trial is in progress. However, the section does not remove the authority granted by the proviso to Section 337(1) of the Criminal Procedure Code, the essential part of which reads: “In the case of any offence triable exclusively by the High Court or Court of Sessions, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof: Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial…”. The proviso therefore adds a further power that enables the District Magistrate to grant a pardon when the offence is under inquiry or trial. In the instant matter, the situation falls within the ambit of the proviso to Section 337 rather than within Section 338 of the Code. Consequently, the Court concluded that the pardon tendered by the District Magistrate on 28 August 1952 was lawful. It is noteworthy that the lower courts did not raise any objection to the validity of the pardon given by the District Magistrate. Subsequently, the appellant made a modest attempt to contest the conviction on its merits by alleging that the confession was either untrue or not given voluntarily and that there was an absence of adequate corroboration by other evidence. Such an allegation requires a determination of pure factual issues, which the Court declined to undertake, observing that a factual finding dependent on the merits or the assessment of evidence is not open to review in an appeal filed by special leave. Counsel for the appellant cited certain excerpts from the judgments of the lower courts and argued that the confession lacked corroboration. The Court saw no justification to depart from the conclusions reached by the Sessions Judge and the High Court on that point. No serious error of law or procedural defect was identified in the findings of the lower tribunals, and therefore the conviction and sentence were deemed fully justified.

After carefully reviewing the factual determinations made by the lower courts, the Court concluded that those findings did not give rise to any miscarriage of justice against the appellant. The Court expressed that it was not satisfied that any error in the assessment of evidence or in the application of law had occurred that would have affected the appellant’s case. Consequently, the Court found that the conviction recorded by the lower tribunals was supported by the evidence on record and that the sentence imposed was appropriate under the applicable legal standards. In light of these conclusions, the Court held that the conviction and the accompanying sentence were fully justified. Accordingly, the Court dismissed the appeal, leaving the judgment of the lower courts undisturbed.