Mack, J.-Appellant, a young man aged 20, has been found guilty under section 302, Indian Penal Code and sentenced to death by the learned Sessions Judge of Coimbatore for the murder of one Muthuswami Goundan, who was incidentally sentenced to transportation for life in 1926. After serving his sentence, he returned to his village Andhiyur and lived with his younger brother P.W.9 The deceased had the right, it would appear, to collect tolls at the Andhiyur shandy from hawkers.

The prosecution case is that on 20th November, 1950, on shandy day in this village, the appellant came to the Police Station at about 2-30 p.m., with a blood-stained spear. The statement recorded from him by the Sub-Inspector (P.W.15) was ruled out as inadmissible in evidence quite rightly but most unfortunately in this case as, under section 25 of the Evidence Act, a confession made to a police officer cannot be proved against an accused. The Sub-Inspector immediately after recording the accused’s statement and taking him into custody went to the Andhiyur shandy and found a blood-stained patch near the rice baskets of hawkers. The evidence shows that P.Ws.4 and 5 two coolies in the employ of the deceased, who assisted in the collection of tolls from paddy stalls, carried the deceased to his house but that he died on the way. The Sub-Inspector found the corpse on the pial of the deceased’s brother, P.W.9, who in the meantime had made a separate complaint Ex. P-8 timed at 3p.m., to the village Magistrate (P.W. 13) to the effect that the appellant and his father-in-law came together to the shandy where the appellant speared the deceased. The 2nd accused was later quite rightly struck out of the case as an accused.

At the inquest held from 3-30p.m., the Sub-Inspector examined three rice hawkers P.Ws.1 to 3, who deposed that they beard a shout of stabbing and all they saw when they turned round in the direction of the shout was the appellant pulling a spear out of the deceased’s back while he was standing and again stabbing him after he fell down. A petition writer (P.W.14), who had his office room opposite to the police station said he saw the accused entering the police station with M.O.1 on which he saw blood at 2-30p.m., that day.

The motive actually disclosed in the evidence was the fact that a civil suit had been filed by the deceased against the appellant in he Gobichettipalayam District Munsiff’s Court on 27th September, 1950, for a declaration and injunction in respect of a house. The appellant contested the suit in which he had filed a written statement and counter. The injunction application was posted to 22nd November, 1950, for hearing. The learned Sessions Judge observed that the main defect in the prosecution case was the absence of any proximate motive as this litigation by itself could not have furnished a motive for the appellant to spear the deceased. In the committing Court, the appellant was undefended and merely took refuge in a wholesale denial of knowledge of anything, even as regards the civil suit filed against him. In the Sessions Court, where he was defended by a learned advocate, an astonishing line of defence was taken, involving an unwarranted attack on the integrity of the Police. The, appellant while pleading not guilty, went to the length of saying that there was no enmity between him and the deceased over the house, that three eye-witnesses had been bribed to give evidence against him and finally that some police men asked him to pick up M.O.1, which was lying near the deceased, took him to the police station and beat him. There can be no doubt whatever that it was the appellant, who speared the deceased and that he is guilty of murder as found by the learned Subordinate Judge in agreeing with the four assessors. On the legally admissible evidence the learned Sessions Judge can perhaps be scarcely blamed for sentencing the appellant, despite his youth, to death.

We have no doubt at all that the appellant, after spearing deceased

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