TMI Blog1958 (11) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... with the deceased, Nanjappa asked P. W. 2 to go and inform the appellant that he was taking the deceased to a place that he had already shown to the Goundars. Accordingly P. W. 2 met the appellant and told him that the deceased had already been taken to the spot shown to the Goundars and asked him to inform the Goundars accordingly. The evidence in the case does not show what happened immediately thereafter. 4. About 9 a. m. on 27-8-1956, P. W. 4, the Talayari of Sanganoor village saw the headless body of a man lying on the cart truck between Sanganoor and Nallampalayam villages, He reported this to P. W. 5 the village Munsif who in his turn sent the usual reports to the Magistrate and fie police. The body was subsequently identified as that of the deceased Kolandaiappan by its finger prints which tallied with those on a sale deed which the deceased had executed sometime before. 5. On 3-9-1936, P. W. 24, the Circle Inspector, Crime Branch, Coimbatore arrested P. W. 2. At 6 p. m. on 4-9-1936, the Circle Inspector arrested the appellant and questioned him. On 7-9-1956, P. W. 9, who was then the Sub Magistrate of Palladam, recorded a confessional statement, Ex. P. 2. from the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2) of Section 337 Crl. P. C. directs that every person who has accepted a pardon shall be examined as a witness both in the court of the committing Magistrate and at the subsequent trial, if any, and that as the appellant had not been examined at the subsequent trial , his conviction was bad. It was urged before him that the language of Sub-section (2) of Section 337, Cri. P. C., had been amended in 1923 and that therefore the earlier decisions under that section required re-examination. In view of the importance of the point raised Somasundaram J., has referred the entire case to a Bench. That is how the comes before us, 9. Before its amendment in 1923 Section 337(2) ran as follows: Every person accepting a tender under this section shall be examined as a witness in the case. The Amending Act of 1923 deleted the words the case occurring in the sub-section and substituted the following words: the court of the magistrate taking cognisance of the offence and in the subsequent trial, it any. We have now to consider whether the change thus introduced in any way alters the principles that underlay the earlier decisions given by this court on this Sub-section. 10. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that court, have complied with the conditions on which pardon was granted. I do not think that this view is correct........... Even if he were examined in the sessions court and gave the evidence originally expected from him when pardoned, his evidence would be of little or no value in consequence of his previous contradictory evidence before the Magistrate. In fact, if the prosecution was bounded to follow the course proposed by the Sessions Judge, the provisions of the law which aim at securing convictions by the grant of pardons would become nugatory for the approver could always save him self without materially assisting the prosecution.... When a pardon has been tendered and has been accepted, the utmost good faith must be kept on both sides. Good faith is broken if the witness does not: disclose the truth to the Magistrate, and, in my opinion, the conditional pardon may be at once withdrawn as soon as good faith has been broken. Davies, J. concurred. 12. In Kullan v. Emperor, ILR 52 Mad 173 the view expressed in the earlier case was affirmed. The court observed: In this connection, however, we desire to express our concurrence with the remarks of Benson J. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which a tender of pardon was made as soon as it is established that his disclosure is not a true and full one, and that it is not a true and full disclosure becomes apparent as soon as he is shown to have made a statement entirely inconsistent with the one upon the strength of which the pardon was granted. 15. The decision in Mahla v. Crown, ILR 1L Lah 230: (AIR 1930 Lah 95), to which we were referred during the course of the arguments throws no light on the present question. What was decided there was that the omission to examine the approver at the Sessions Court vitiated the trial of the persons who were being tried before the Sessions court The decision was: The fact, however, that an approver appears to the court to be an untrustworthy witness does not absolve the court from complying with the statutory provisions. What the position is of an approver who has failed to comply with the terms on which a pardon was granted to him was not considered there. 16. The case in Emperor v. Shahdino Dhaniparto, AIR 1940 Sind. 114 may be regarded as lending some support to the contentions of Mr. Gopalaswami, the learned advocate for the appellant. The facts in that case wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another place. In the Sessions Court he fully adhered to his original statement. Therefore, when he retracted his statement in the committing court he did so out of fear. The High court also took the view that it was in the Sessions Court that the approver had his main duly to perform and that, in the circumstances of the case, it considered that Shahdino had substantially complied with the terms of the pardon tendered to him. That being so, it will not be right to treat this case as an authority for the proposition that an approver will have earned his pardon if he adheres to his story in the Sessions Court, and that if he is denied the opportunity of doing so by his not being examined in that court, it cannot be said that he has failed to comply with the terms on which the pardon was tendered to him we do not consider that the learned Judge in the case intended to rule that it is sufficient for an approver to adhere to his story at one stage of the proceedings. 17. Let us examine the reason of the matter. Occasionally when grave offences are committed the law finds it necessary to enlist the assistance of some of the offenders in order that the rest may be brought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n tendered and accepted, the utmost good faith must be kept on both sides. 18. The amendment made in the section in 1923 does not affect the correctness of the reasoning of the earlier decisions of this court. In our opinion they still continue to be good law. 19. The preliminary objections being out of the way, it is now possible to go into the merits of the case. We have already stated that the learned Additional Sessions 'Judge has acquitted the appellant on the charge or abetment of murder under Sections 302 and 109 I. P. C. It is therefore suffificient to examine the evidence bearing on the first charge, viz., the abetment of the offence of abduction in order to murder. We would recall that the abetment is supposed to have taken place in the afternoon or evening of 26-8-1956. To show that the appellant abetted this abduction there is practically no evidence. P. W. 2 does not say that the appellant induced the deceased person to go anywhere or to do anything. According to P. W. 2 all that the appellant did at that stage was to take a message from P. W. 2 to the Gounders to the effect that the deceased was at the spot that had been agreed on. To take a message from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in abduction and which elements may attract punishment under other sections of the Code abduction per se of an adult person is not punishable under the Code. Section 364, I. P. C., deals with cases of kidnapping or abduction in order that the person may be murdered or may be so disposed of as to be put in danger of being murdered. Section 365, I. P.C.deals with kidnapping or abduction with intent to cause that person to be secretly and wrongfully continued. Section 366, I. P. C., deals with the kidnapping or abduction of a woman, in order that one or other of the various offences enumerated in that section may be committed against her. Section 367 deals with the kidnapping or abduction of a person that he may be subjected to grievous hurt, slavery, etc. Section 369, I. P. C. deals with the kidnapping or abduction of children under ten years of age. 22. The position, therefore, conies to this: the evidence does not support the findings of the learned Additional Sessions Judge; and his findings cannot support the conviction. 23. In the result, the appeal is allowed and the appellant is acquitted and ordered to be set at liberty forthwith unless he be otherwise law ful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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