The accused was charged under section 302, Indian Penal Code, with having murdered Viswalingam, a boy, aged about 13, on 21st December, 1953, by drowning Viswalingam in Vari Voikkal, an irrigation channel with water about 3 feet deep in Vellamperambur, to rob Viswalingam of the petty jewels he wore then, two rings, M.Os. 1 and 2, and a pair of ear-rings, M.Os. 3 and 3 (a). The learned Sessions Judge convicted the accused under section 302, Indian Penal Code and sentenced him to death, subject to the confirmation of that sentence by this Court.

In the absence of direct evidence to prove that it was the accused that had drowned Viswalingam in the channel, the prosecution relied on circumstantial evidence, and also on an extra-judicial confession the accused was alleged to have made to P.Ws.1, 3 and 8 in the village on the night of 22nd December, 1953, before the occurrence was reported by P.W.1 to the karnam P.W.9.

The learned Sessions Judge, however, declined to take into consideration this extra-judicial confession sworn to by P.Ws. 1, 3 and 8 and also embodied in Exhibit P-1 mainly on the ground, that it had not been satisfactorily proved that the confession was voluntary. No doubt it was on the information given by the accused that the dead body was later found in the channel and M.Os.1, 2, 3 and 3(a) were recovered. But the more limited question is whether, whatever the accused might have told P.Ws. 1, 3 and 8 among others, that statement is legally admissible in evidence against him. The learned Public Prosecutor contended that the learned Sessions Judge should not have applied the same standards which would have been properly applicable had the questioning been by the police; but whether, what are commonly known as “third decree methods” are alleged to have been used by the police or by others, the real question for determination is whether a confession on which the prosecution relies is proved to have been voluntary. P.Ws. 1, 3 and 8 admitted that it was after persistent questioning from about 6 p.m. in the night till about 3 a.m. during the whole of which period the accused had to go without food and sleep, that the accused finally admitted that he along with two others, who were subsequently examined as C.Ws. 1 and 2, drowned the boy, and that it was he that disposed of the jewels. Apart from the fact, that the learned Judge rightly held that the confession was not proved to have been wholly voluntary, the learned Judge also pointed out that even the precise scope of the statement said to have been made by the accused in the village that night was not proved. Whether the accused admitted that he himself participated in the murder or whether he was one of the three, one or more of whom committed the murder, could not be gathered even from the statements by P.Ws. 1, 3 and 8, nor from what was recorded in Exhibit P-1 It is not the case of the prosecution that all the three persons murdered Viswalingam or that whoever might have actually drowned the boy, all the three were constructively liable for the murder under section 34 read with section 302, Indian Penal Code. But none of these questions really arises for further discussion, because we agree with the learned Sessions Judge in holding as legally inadmissible the statement said to have been made by the accused to P.Ws. 1, 3 and 8 in the village.

Before we consider the circumstantial evidence on which the prosecution relied to prove the charge against the accused, we have to consider the question, whether it was proved beyond all reasonable doubt that the death of Viswalingam was due to homicidal violence. The case for the prosecution was that Viswalingam was drowned in the Vari Voikkal on 21st December, 1953, at about 4-30 p.m. P.W. 2 commenced the post-mortem examination of the body only at about 7 a.m. on 24th December, 1953. The body was in a highly decomposed state. Whether the data observed by P.W.2 were sufficient to venture a definite opinion as to