John Beaumont, C.J.
1. These are three appeals by the three accused against their convictions by the Additional Sessions Judge of Dharwar of the offence of murder, and there is an application to confirm the death sentences which the learned Judge passed upon all of them.
2. The facts established by the prosecution are these. The murdered woman was one Mallava, who was aged about sixty-five. She and her daughter-in-law Gangava and the latter's son used to live in the Jamkhandi-math in the village of Hulgur. But Gangava had some time back opened a hotel about a mile away from the math, and she and her son thereafter lived in the hotel. Mallava used to go there in the day time to take her meals, but she went back to sleep at night in the math, and Gangava's son used to go to the math every day and spend part of his time with Mallava. On the night of March 25 last Mallava went back from the hotel to the math, and the next morning, when Gangava's son went to the math, he found that Mallava had been murdered. She had been severely beaten over the head, and there is, I think, no doubt that the weapon used was a crowbar, which used to be kept in the math, and which was found near the body stained with human blood. The object of the murder was undoubtedly robbery, because boxes had been broken open, and a large number of ornaments and other articles had been taken, though certain ornaments on the body of the deceased had not been removed.
3. The first evidence in chronological order is that of Channava, (exhibit No. 5), who lived in a house near to the math. She says that on, the day before the date on which the murder was discovered she went in to pound chillies in the math; that Mallava was there and that accused No. 1 came in whilst the witness was there, sat talking with Mallava, and was still there when the witness left about 8 p.m. It is not suggested that accused No. 1 committed the murder on the occasion of that visit, but it is certainly possible that he went there to make sure that Mallava was alone.
4. Then the next witness is Ningappa, (exhibit 6), a servant of accused No. 1, who on the night in question was sleeping in accused No. 1's shop, which is three houses removed from Jamkhandi-math. He says that on that night accused No. 1 went out and returned about midnight, and the witness; woke up at the sound of the door being opened; he asked who it was, and accused No. 1 said that it was Basangouda. He says that accused No. 1 opened the lock of his box and put a bundle into it. He identifies the box as article 110, and it is proved by the panch, (exhibit No. 20), and the panchnama, (exhibit No. 22), that this box, article 110, was subsequently produced from the house of accused No. 2, which shows a connection between accused No. 1 and accused No. 2.
5. Then the next witness is Yallappa (exhibit No. 11). He says that the day before he heard of the murder of Mallava he had been to a cinema performance and that he left the theatre at midnight. He says:
I was entering my house when I saw the three accused coming out of the door of the Jamkhandi-math. On their coming near me I questioned them where they had gone and they told me not to interfere in such matters. Then they proceeded to the shop of accused No. 1. Accused Nos. 1 and 2 carried a bundle each and accused No. 3 had nothing.
Then he adds:
The three accused used to meet in accused No, 1's shop always.
6. It is true that that witness did not come forward until the arrival of the Police Sub-Inspector and the arrest of the accused on April 9; but one may assume, I think, that the witness was threatened that he should not speak of what he had seen; and, as the learned Judge points out, from the fact that he was examined by the Police Sub-Inspector on the day on which accused No. 1 was arrested, it is probable that his name was mentioned by accused No. 1 as a possible witness. No reason is suggested why this witness should give false evidence, but his evidence is the only direct evidence connecting the accused with the offence on the night in question.
7. The other evidence consists of the fact that each of the accused produced a substantial part of the stolen property, which was identified by Gangava. Accused No. 1 produced the property from his field, accused No. 2 from his backyard, and accused No. 3 from the roof of his house. There is no reason whatever for rejecting the evidence of the panch and the panchnamas as to the production of the stolen property. It is also proved against accused No. 1 that he sold certain of the stolen articles under a false name on two occasions.
8. I should say that the accused in their statements simply deny everything. They deny the production of any property, or that they had any connection with the offence. There can, I think, be no doubt whatever that the facts proved, and particularly the possession by the accused of all this property, which was the result of the robbery, justify an inference that they took part in the robbery. But the further question arises whether the evidence justifies an inference that they committed the murder of Mallava. The learned Judge, in discussing the circumstantial evidence, followed a decision of the High Court of Madras in Narayma v. King-Emperor (1932) I.L.R. 56 Mad. 231. I have had occasion before to consider that case, and, though I do not for a moment suggest that the decision was a wrong one, I do not find myself in agreement with some of the dicta of the learned Judges. The principal judgment was delivered by Mr. Justice Reilly, but the learned Chief Justice, Sir Owen Beasley, concurred in a short judgment. The learned Judges differed from certain observations made in a previous case before the High Court of Madras, Sagaimuthu Padayachi v. King-Emperor I.L.R. (1925) Mad. 274. The question with which the learned Judges had to deal in Narayana's case was whether an inference that the accused committed murder could be drawn from the circumstances of the case, including his production of property stolen from the murdered person. They do not accept the statement of Mr. Justice Wallace in the earlier Madras case to the effect that 'the Court has to be satisfied not merely that the thief could not have come into possession of the property unless murder had been committed, but also that he could not have come into possession of the property unless he himself had taken part in the murder or was privy to it.' Mr. Justice Reilly says (p. 237):
When it is the duty of a Judges or a jury to draw from evidence a reasonable inference, it is not their duty to find that there was no conceivable possibility other than the conclusion which they reach.
Later in his judgment he says (p. 241):
If the accused offers no explanation, it is not for the Judge or jury to invent one. One of the facts before them, which it is their duty to take into account, is the fact that he has offered no explanation.
9. Sir Owen Beasley says with reference to Sogaimuthu Padayachi v. King-Emperor that the case is constantly quoted as an authority for the principle that criminal Courts in the absence of any explanation by the accused can only draw an inference that the accused committed the murder where no other inference is possible. I do not think the learned Chief Justice in that passage was merely emphasizing the word 'possible' as distinguished from the word 'reasonable'. If that were the only point of his observation, I should agree that the Court is not bound to have regard to possible or conceivable, but extremely improbable, explanations of the evidence; but in my view both the learned Judges in Narayana's case state the law in relation to circumstantial evidence wrongly. In my opinion, the rule is that circumstantial evidence must be consistent, and consistent only with the guilt of the accused, and that if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit. No doubt one of the circumstances, which has to be taken into account, is the fact that the accused has offered no explanation, or has offered a particulaf explanation; but it must be borne in mind that in this country the accused cannot go into the witness-box, and is not bound to give any explanation at all. An accused person, who knows the law, is quite entitled to say: 'The evidence is just as consistent with the guilt of somebody else as with my guilt, and, that being so, there is a doubt, and you cannot convict me, and I am not going to open my mouth.' The fact that he does not open his mouth cannot be used against him. One must remember also that very frequently the accused is an illiterate person, and makes a statement under Section 342, Criminal Procedure Code, which is obviously untrue. Very frequently he is not prepared to admit anything, whereas, if he was wise, he would admit facts which are definitely proved against him, and offer an explanation about them. But very often he will not admit anything. The fact that an accused is not willing to admit that he took part in a robbery which is proved against him ought not to prejudice the question whether he committed murder at the same time. I particularly dissent from the view of Mr. Justice Reilly that it is not the duty of the Court to invent possible explanations.
10. I remember many years ago discussing with an eminent King's Counsel in London, who afterwards became a Judge on the Common Law Side of the High Court and was a great criminal Judge, the effect of the introduction of the Criminal Law (Amendment) Act of 1898, under which accused persons were for the first time allowed to give evidence in England, and he told me that one effect of the Act was to destroy the whole romance of defending anaccused. Formerly counsel could exercise his ingenuity in inventing possible theories which fitted in with the evidence, and were consistent with the innocence of the accused; but after the accused was allowed to go into the box, it was no good suggesting possible theories, because the facts could be proved by evidence. I only mention that story to illustrate my own view of what the duty of counsel and the Court is in India at the present time. It is clearly the duty of counsel in defending an accused to point out that the evidence is quite consistent with an explanation which fits in with the accused's innocence. In many cases the accused are unable to employ counsel, and in other cases counsel are asked to defend by the Court, and such counsel may be inexperienced, and I think that the Judge is bound to ask himself whether there is any rational explanation of the evidence which is consistent with the innocence of the accused, and if there is, in my opinion, he is not justified in convicting. A reasonable explanation of the evidence should not be rejected because not offered by the accused.
11. Now, the facts here, first of all, are that the three accused produced property which had been stolen on the occasion of this robbery and murder. That is clearly established. They do not offer any explanation of the possession of the property, but merely say that they did not produce it. As I have said, that is quite enough to justify an inference that they were guilty of robbery. But is it enough to justify an inference that they were guilty of murder? The murder was committed with this crowbar. That, I think, is clear, and as there was only one instrument used, it is probable that only one of the assailants gave the actual blow, and, of course, we do not know which assailant it was. Therefore, we can only convict the accused, if we find that there was common intention to commit murder within Section 34 of the Indian Penal Code. In considering that question it is of vital importance to notice that all the accused come from the same village as the deceased woman. Accused No. 1 was obviously known to her, because he was in her house on the evening on which she was murdered and talking to her, and there can be no doubt, I think, that she knew accused Nos. 2 and 3, who were both from the same village. Therefore, if these three people committed the robbery, they must, I think, have intended to murder their victim; otherwise she would have given them away to the police. I do not see what rational intention one can attribute to the robber or robbers, except that they intended to murder the woman, to whom they were known. If they had come from a different village, or if there was any evidence that they had concealed their faces behind masks and that the victim could not recognize them, then one might perhaps say that the common intention was to rob and one of the robbers may have gone too far in committing murder. But in a case of this sort, the murder of a local inhabitant by three men of the village, I think the only possible intention which one can attribute to them is that they intended to murder her in order to prevent her giving evidence against them. I cannot see any rational explanation of the evidence which is consistent with the innocence of the accused. Of course, it is conceivable that somebody else committed the murder and robbery, and that that person was subsequently robbed by the accused, or handed over the property to the accused, but that does not seem to me a rational explanation. If that were the explanation, it is almost inconceivable that the accused would not have given it and mentioned who it was who gave them the property. There is not a particle of evidence that there was any suspicious character in the neighbourhood of the math on the night of the offence. Therefore, I think, the theory that the accused might have got the stolen property from some third party is an instance of an explanation which is conceivable, but not rational, nor one which any Court can be asked to accept.
12. It seems to me that on the evidence the learned Judge and the assessors were right in coming to the conclusion that the only rational explanation, which fitted in with the whole of the evidence, is that the accused committed this robbery, and that pursuant to their common intention to rob the deceased and avoid detection they had the further intention of murdering her, and that they carried that intention out.
13. In my opinion, therefore, the appeals must be dismissed and the death sentences confirmed.
14. I agree.
15. It: is perhaps not altogether safe to rely on the uncorroborated evidence of Yallappa (exhibit No. 11) that on the night of the murder he saw all the three accused coming out of the door of the math at about midnight. He did not mention this to any one in the village for about a fortnight though he is one of the Walikars in the village, and he would ordinarily be expected to report a matter like this, when he saw two accused persons coming out with bundles in their hands, to the police patil. Besides, his statement that all the three accused proceeded towards the shop of accused No. 1 is not corroborated by the evidence of accused No. 1's servant Ningappa (exhibit No. 6). The evidence of Channavva (exhibit No. 5), again, that she saw accused No. 1 talking to the deceased woman till about 8 p.m. on the night of the murder does not materially help the prosecution as, according to the prosecution, several hours elapsed between the murder and the time when Channavva left the math. We are thus left with the evidence regarding the production of a large number of articles by accused Nos. 1, 2 and 3, all of which have been identified by Gangava as her own property. On this point there has been no cross-examination. Accused Nos. 1, 2 and 3 merely said that they did not produce any of those articles. The evidence is clear, there can be no doubt, that all those articles were produced by the accused. The cross-examination of the panchas who were present at the production of those articles does not show that the accused intended to suggest that the discovery was a mere show, the place having already been known to the police. We thus come to the conclusion that the accused were found with property stolen from the house of the deceased.
16. The next question that arises is, whether it is possible from this conclusion to arrive at the inference that it was the accused and nobody else who had committed the murder of the deceased. I agree that the decision in Narayana v. King-Emperor I.L.R. (1932) Mad. 231 goes too far, and that it is the Court's duty to speculate, when the accused's statement does not explain the evidence against him, as to the possible hypotheses that may be made out in favour of the accused. The correct principle appears to have been enunciated by Wallace J. in an earlier Madras case, Sogaimuthu Padayachi v. King-Emperor I.L.R. (1925) Mad. 274. He said (p. 291):
In such a case I am confident that neither law nor justice justifies the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen property. The Court has to be satisfied not merely that the thief could not have come into possession of the property unless murder has been committed, but also that he could not have come into possession of the property unless he himself has taken, part in the murder or was privy to it.
17. It seems to me that it is possible to think of three or four theories in the accused's favour. In the first place, it may perhaps be said that someone else merely committed the murder and went away, having had a grudge against the deceased, and that the accused came later on the scene and stole the property. There is, however, nothing in the evidence to show that there was enmity between any one in the village or outside and the deceased. The police at first suspected Fakirayya, the son-in-law of Gangawa, as a possible culprit. But Gangawa herself says that Fakirayya, who had been living with her, had left some three weeks before the murder in anger as she had asked him to give some medicine to his daughter who had been ill but he had declined to do so, and that Fakirayya was also thinking of marrying a second wife, his wife (i.e. the daughter of Gangawa) having died. This does not suggest that Fakirayya had any particular reason to be angry with or bore any grudge towards the deceased. This theory would require that the accused came to know of the murder of the deceased woman on the same night as she was murdered. Accused No. 1's servant Ningappa says that accused No. 1 returned to his shop on the same night with a bag; and from the evidence it can be presumed that the bag contained some of the stolen articles. I therefore think that this theory is not tenable.
18. Secondly, it is perhaps possible to suggest that someone else murdered the deceased and stole the property and then entrusted the said property with the three accused persons. There is evidence that there was a fair on in the village and a large number of outsiders must have been visiting the village. But if it was an outsider who had committed the offence, then one would expect the stolen property to be removed outside the village rather than be entrusted to somebody in the village. In any case, if this was what had actually happened, one would expect the accused to say so in their defence; the offence of keeping stolen property is not such a grave offence as that of murder. This theory again, therefore, does not seem probable.
19. Thirdly, it may be suggested that somebody had murdered the deceased and robbed her of the property, and he in turn was robbed by the accused. This theory would require that the second robbery took place on the same night as the first robbery, because, as I have pointed out above, Ningappa states that accused No. 1 was found to have returned to his shop on the same night with a bag. This appears to me to be a too far-fetched theory to be at all probable. It requires us to suppose that though the name of the real offender never came to light at all, the three accused persons came to know of the commission of the offence and decided within a few hours of the same to rob him of the stolen property and succeeded in their object the same night.
20. Lastly, it has been argued by the learned advocate for the appellants that it is not impossible that one of the three accused committed the murder and that the property of the deceased was later on distributed among the three accused, so that it is impossible to say which of the accused it was who committed the murder. It has also been suggested that the original intentions of the accused was not to commit any murder at all but that as the deceased woke up one of the accused killed the deceased on the spur of the moment,, so that, again, it is not possible to say which of the accused persons killed her. These theories, again, appear to me to be: entirely untenable.
21. If it was the intention of the accused merely to rob the deceased, I think it must be held that they came to the scene of the offence with the deliberate object of killing the deceased also. They must in that case halve intended to break open the trunk and the box which contained the valuable properties of the deceased, and they could not expect that those could be broken open without waking up the deceased; they must have intended to remove the only evidence of their crime by doing away with the deceased. Nor does it seem possible that it was only one of the accused who entered the house and committed the offence and later on distributed the spoils to other persons. If he took the help of the other accused persons in concealing or disposing of the property, it is far more reasonable to think that the three accused were associated together in the offence from the beginning. It thus seems to me impossible to escape the conclusion that all the three accused must have been concerned with the offence from the beginning, i.e. from the inception of the plan to commit the theft, and that the plan must have been to commit the theft by killing the deceased woman. The evidence, in my opinion, is not consistent with the guilt of somebody else or only with the guilt of one or some of the accused. I therefore think that all the three accused have been rightly convicted of the murder of the deceased. It was a cold-blooded and deliberate murder, and there can be no doubt that the proper sentence in such a case is the sentence of death.