TMI Blog1954 (3) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Section 302 and Section 109 of the Indian Penal Code and sentenced him to death. The other two accused were convicted under Section 302/34 of the Indian Penal Code and sentenced to death. No conviction was recorded in respect of the charge under Section 201 of the Indian Penal Code. 3. The appellant Peiris is a native of Ceylon who used to reside in Ceylon House, Bombay. He posed as a big diamond merchant and a prosperous business man who had numerous contacts with Maharajas and other big people as his clients. Between 1922 and 1942 he appears to have had at least ten convictions to his credit for theft, house-breaking and other offences. In 1946 he met a woman called Lucy Patrao who was then living in Bombay and married her. Lucy is the sister of Albert Patrao who figures as an approver (P. W. 60) in the case. David Souza is the maternal uncle of Lucy and Albert. In 1947 or so Peiris set up a house in Bangalore where he met George who was then working as salesman in the Radio shop of one Suresh Trivedi (P. W. 32). George worked with Trivedi for a year and half but left him in the latter half of 1947. Early in 1949 Peiris moved to Mangalore where he took a house in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 26, Augustine suggested that the murder should be committed in Kulur, a place five miles away from Mangalore. Augustine proposed that Albert should speak to his uncle David and bring him into the conspiracy. On December 2, Peiris sailed from Mangalore to Bombay. Not having heard any-think about what had happened in the meantime he sent a letter to H. K. Thingalaya (P. W. 13) asking tan for news about his house-hold. P. W. 13 after visiting his house in Bijey and meeting George sent a telegram (P. 21) on December 11 saying that all was well. On December 12 Albert went to David and suggested to him that he should assist in the murder of George. He told him that Augustine had promised to speak to Peiris to pay him Rs. 2,000/-. David being only a daily labourer at first protested but later agreed. The party having perfected their plan took George on December 19 from the house in Bijey to David's house in Kuthethur where they spent the night. On December 20, George was made to drink heavily so much so that he became completely helpless and had to be helped to get up. They took him to a hillock behind David's house which was about a furlong, away and made him sit down ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfession. The Magistrate gave him time up to the 12th August to reflect over the matter and sent him to court custody directing that no Police Officer should meet him. His confession was recorded on three days, 14th, 18th and 19th August, after all the formalities had been duly observed. On 25th he was sent to Mangalore from Bombay. On the 28th he was granted pardon (P. 18) by the District Magistrate, South Kanara. His statement was then recorded as an approver (P. 85). The inquiry before the Committing Magistrate had already been concluded when Albert was examined as a supplementary witness under Section 219 of the Criminal Procedure Code in the presence of the accused. The accused were further examined under Section 342 of the Code of Criminal Procedure. In the court of Sessions the approver resiled from the statement he had made before the Committing Magistrate and the learned Sessions Judge thereupon treated his evidence given before the Committing Magistrate under Section 288 of the Code of Criminal Procedure. 6. The case against the appellant rests on the evidence of the approver which is corroborated in material particulars by other prosecution evidence in the case. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apart from this we are of opinion that there is no merit in this objection. We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness. The first case relied on was a case to which the provisions of Section 337 of the Code of Criminal Procedure did not apply. It is also distinguishable on the ground that the accused there was mentioned in the charge-sheet sent by the Police and only a promise had been made to him that he would not be prosecuted and that he should be discharged from his bail and examined as a witness. The Police did not remove him from the category of the accused and in fact they could not do so as he could be discharged only by the order of the Magistrate. In the present case the pardon was tendered by the Magistrate and there is nothing whatever to show that Albert was treated as an accused after the tender of the pardon. In the second case the offence concerned was not exclusively triable by the court of Sessions and the pardon was not granted under Section 337 of the Code of Criminal Procedure. There the evidence was held inadmissible on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial......................... 11. The proviso contains an additional provision which empowers the District Magistrate to tender pardon where the offences are under inquiry or trial. The present case is covered by the proviso to Section 337 and not by Section 338 of the Criminal Procedure Code. We hold, therefore, that the tender of pardon by the District Magistrate on August 28, 1952, was valid. It is significant that in the courts below no objection was raised to the validity of the pardon tendered by the District Magistrate. 12. A faint attempt was made on behalf of the appellant to challenge the conviction on the merits by contending that the confession was not true or voluntary and that there was no sufficient corroboration by other evidence in the case. This contention involves an investigation into pure questions of fact which we decline to entertain, as we do not think that a finding of fact depending upon the merits or appreciation of the evidence is open to reconsideration in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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