The main legal point established is that the intention to commit murder, even if initially misapprehended, can lead to a conviction under Section 302 of the Indian Penal Code.

King, J.

1. The appellant here was the second accused prosecuted before the learned Sessions Judge of Ramnad for the murder of a woman named Meenakshi Achi on the evening of the 26th September last. The deceased was admittedly murdered in her flower garden about 1/1/2 furlongs away from the village. Her dead body was found on the 27th September in a well in the garden. Two persons were prosecuted for the murder. The first accused who was eventually acquitted, was the gardener employed in the garden. The second accused was an acquaintance of his, who was in need of money at the time. There is no direct evidence of the offence and there is no direct evidence from the post mortem certificate or the testimony of the doctor as to the cause of death. The body when found had marks of three punctured wounds upon the head; but those wounds by themselves according to the doctor would not be sufficient to cause death.

2. The principal evidence upon which the second accused was convicted comes from his own conduct. He has given a statement to the police as a result of which he has informed them of the existence of P.W. 15, who confirms his story that the two accused sold to him (P.W. 15) part of a chain which had been worn by the deceased at the time of her death. The evidence of P.W. 15 and P.W. 16 taken together shows that the proceeds of the sale of this portion of the chain were divided between the two accused. There is also a confessional statement made by the second accused before the Taluk Magistrate of Tirupattur. He explains how he was induced by the first accused to assist the first accused in the killing of the deceased. After the first attack had been made upon the deceased he (second accused) prevented her leaving the garden and then seized her legs and held her tight while, according to the confession, the murder was completed. After she had died the first and second accused threw the body into the well. The significance of this confession which has been so signally confirmed by the discovery of P.W. 15 and P.W. 16 and the chain which was sold to the former, as proving a case of the commission of some offence against the appellant, has not been challenged in argument before us. But it is argued that the medical evidence taken in conjunction with the confession shows that there could not have been any intention on the part of the second accused to commit murder and therefore he cannot be found guilty under Section 302, Indian Penal Code. Great stress is laid upon the statement in the confession that the deceased had died and that her dead body had been thrown into the well. The doctor on the other hand gives evillence that the only marks of external injury which he saw were of injuries which were insufficient to cause death. It is accordingly argued that the second accused was under a misapprehension when he thought that the deceased was dead and that the blows which the first accused with his assistance had struck at the deceased had not therefore caused her death. Whatever therefore may have been the intention of the accused in striking those blows that intention had not been effected. The action of the appellant and the first excused in throwing the body into the well could not possibly be in pursuance of an intention to cause her death as they already believed that she was dead.

3. Reliance in support of this position is placd upon the decision in Palani Goundan v. Emperor (1919)37MLJ17 . The learned Sessions Judge however Las refused to follow that ruling and has followed instead the later ruling reported in Kaliappa Goundcn, In re (1933)65MLJ597 . It is true that in this later case there was no definite plea by the accused that at the time When he put the body of the deceased upon the railway line he thought she was dead, whereas here according to the argument the confession does contain a statement equivalent to the expression of a belief that the deceased was already dead when the body was thrown into the well. B