Evidentiary value of statements.

Venkataraman, J.- Three persons were tried by the learned Sessions Judge of Salem in connection with the murder of one Palani Chetti. The first accused has been convicted of the offence under section 302, Indian Penal Code, for causing the death of Palani Chetti by squeezing his testicles on 23rd February, 1972. The second accused has been convicted under section 109 and section 302, Indian Penal Code, for abetting the offence of murder by pushing the said Palani Chetti on the ground and by catching hold of the legs of Palani Chetti to enable the first accused to squeeze his testicles. The third accused has been similarly convicted of the offence under section 109 and section 302, Indian Penal Code of abetting the murder, by catching hold of the hands of Palani Chetti when A-1 squeezed his resticles. All the three have also been convicted under section 201, Indian Penal Code. They have been sentenced to death, subject to confirmation by this Court for the major offence under section 302 or section 109 and section 302, Indian Penal Code and to rigorous imprisonment for two years, each for the offence under section 202, Indian Penal Code.

2. Palani Chetti used to purchase fried gram from P.W. 2 (Raman alias Ramaswami) and sell it in shandies, in particular at Tiruchengode. P.W. 1, Sellammal, was the concubine of Palani Chetti. She says that Palani Chetti left the house on the morning of Tuesday, 22nd February, 1972 and did not return home thereafter.

3. On Tuesday, 22nd February, 1972, P.W. 2 found Palani Chetti under the influence of drink when he was selling the fried gram at Tiruchengode. P.W. 2 advised Palani Chetti not to do business after drinking arrack.

4. The prosecution case is that on Wednesday, 23rd February, 1972, Palani Chetti, the three accused, witness Mukkuni alias Murugesan (P.W. 5) and witness Balavannan (P.W. 3) played cards from morning till 6 p.m. Palani Chetti won the game. P.W. 3 went away to his house. The rest went away to a toddy-shop. They all drank toddy. The accused and P.W. 5 asked Palani Chetti to pay for the toddy (evidently because he had won the game). But he declined. After taking toddy, they played cards again. At that stage, accused 1 and 2 beat Palani Chetti with hands and he fell down. The third accused caught hold of his hands; the second accused held his legs; the first accused squeezed his testicles. Palani Chetti cried that he was dying. In fact he died. The second accused took the dhoti of Palani Chetti, tore it and tied it around the neck of the dead man. He went up a building, and A-1, A-3 and P.W. 5 lifted the body and hung it. The dhoti gave way. Thereafter they hung the corpse from a tree.

5. On 24th February, 1972, the village Headman, P.W. 11, got information that the corpse of a male was hanging in a tree in the shandipet. He went to the spot and saw the body of Palani Chetti hanging from the tree. He sent his usual report to the Police. The Police came on the scene and held the inquest. The post-mortem examination was conducted by the doctor, P.W. 8. She found that death was due to squeezing of the testicles and the contributory cause was asphyxia. The hyoid bone, however,was not broken.

6. The accused are alleged to have been absconding. P.W. 13, the Inspector of Police, arrested accused 2 and 3 on 24th March, 1972 and the first accused on 29th March, 1972. He sent a requisition to the Magistrate to record the confessional statement of the first accused. The first accused was produced before the Sub-Magistrate, P.W. 9 at 1-45 p.m. on 1st April, 1972. P.W. 9 took the usual precautions, gave him the usual warnings and gave him time for reflection till 3rd April, 1972. He repeated the prescribed questions and on being satisfied that the first accused was going to give a voluntary statement, recorded the statement, Exhibit P-8.

7. In Exhibit P-8, the first accused refers to their playing cards together and going to the toddy-shop and to the deceased declining to pay the money for the

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