John Beaumont, Kt., C.J.
1. This is an appeal by accused No. 1 against his conviction of the offence of murder by the Sessions Judge of Kaira. The other accused was acquitted.
2. There is no doubt that a woman named Bai Vakhat, the wife of the complainant, was murdered in a field in the afternoon of October 1, 1942, The only question is whether the appellant was guilty of the murder, as the learned Sessions Judge held. The assessors were of opinion that the case was not proved. There were two eye-witnesses to the offence,-Balu (exhibit 9) and Jamal (exhibit 10)-, and the learned Judge and all the assessors have disbelieved those eye-witnesses. Judging merely from the depositions, I feel myself some doubt whether the learned Judge and assessors were right in disbelieving that evidence, particularly the evidence of Balu, who says that he narrated what he saw to Rama the same night and to the complainant the next day, and both the witnesses corroborate his statement. Balu and Jamal, according to their statements, witnessed the offence from different sides of the field, and, therefore, they might or might not have seen each other, and according to their evidence they did not see each other. I should have expected that, if the evidence was concocted, the witnesses would have been careful to say that each noticed the other doing something which the other said he was doing. However, there it is. The learned Judge and the assessors who saw these witnesses in the box disbelieved them, and it would not be right for this Court to overrule their opinion, when we have not had the advantage of seeing these witnesses. It is quite possible that if we had seen the witnesses, we should have agreed that they were not telling the truth. But if one disbelieves the evidence of these eye-witnesses, it necessarily follows that an attempt has been made to manufacture evidence against the accused, and that necessitates the Court being particularly careful in relation to the rest of the evidence.
3. The learned Sessions Judge has convicted accused No. 1 on the strength of the evidence of footmarks and evidence of the production of ornaments said to have been on the murdered woman. With regard to the footmarks the evidence is unreliable and inadequate. According to the first panchnama made on October 2, no footmarks were noticed. That is exhibit 19. But the Sub-Inspector says that somebody, whose name he was not prepared to disclose, pointed out footmarks to him on some subsequent occasion, and as a result he attached a pair of shoes from the accused's house, and he says that the footmarks tallied with those shoes. As we do not know the circumstances in which the footmarks were discovered, the evidence is obviously unreliable, because it is possible that the undisclosed informant himself collected the accused's shoes and made the impressions after the murder in order to manufacture evidence. And the evidence is inadequate, because all the Police Sub-Inspector and the panch say is that the footmarks tallied with the accused's shoes. That may mean no more than that these marks were made by shoes of a size corresponding to the size of the accused's shoes. That is not enough. There may be a large number of shoes in the village of the size of the accused's shoes. The evidence must go further and show that the marks had some peculiarity which was found in the shoes of the accused, and would not be found in most other shoes. In my view, one cannot attach any importance whatever to the evidence of footmarks.
4. The evidence with regard to the production of ornaments is more serious. It is, I think, proved by the evidence of the complainant and the deceased's mother, and particularly the latter, that the deceased woman had got certain ornaments on her person on the day on which she met her death. The mother went out with the deceased, and says what ornaments the deceased had got. She would naturally know the ornaments of her daughter. She says that the deceased was wearing those ornaments, and she identified some of the ornaments worn by the deceased from the ornaments which were produced by accused No. 1, They were produced in these circumstances. Accused No. 1 was first detained by the police on October 3, but for some strange reason he was allowed to go at night, although the Police Sub-Inspector had that day taken the statement of Balu, the alleged eye-witness. I find it rather difficult to see what justification the Police Sub-Inspector had for allowing the man to go when he had the evidence of an eye-witness saying that this man had committed the murder. The Police Sub-Inspector was not in a position to gauge the value of the eye-witness's evidence. However, the accused was allowed to go, and he was not found on the 4th and the 5th, but was arrested in the evening of the 5th, and on the 6th he took the Police Sub-Inspector and the panch to his field, and produced a dharia and a bundle concealed in a hedge by his field. The bundle contained ornaments which are identified as those worn by the deceased on the day of her death and the dharia was proved to have been stained with human blood. The learned Judge, on the strength of that evidence, and the evidence of footmarks, convicted the accused of murder. He relied on a decision of the Madras High Court to justify a presumption of murder from the fact that the accused was in possession of ornaments which had belonged to the murdered person. But if the learned Judge had pursued his researches further, he would have found that this Court has differed from the law laid down by the Madras High Court in that case Emperor v. Ganu Chandra (1931) 34 Bom. L.R. 303, and Emperor v. Salve (1933) 36 Bom. L.R. 384-Eds.
5. In the present case in the absence of eye-witnesses we have no evidence whatever to connect the accused with the murder. It is obvious that somebody else might have committed the murder, and the accused might have acquired the ornaments from that person; or he might have robbed the deceased, and somebody have subsequently murdered her. The mere fact that he produced, shortly after the murder, ornaments which were on the murdered woman is not enough, in my opinion, to justify an inference that the accused must have committed the murder.
6. I would point out that in panchnama, exhibit 25, as to the production of these ornaments by the accused, which was no doubt prepared by the Police Sub-Inspector, the accused, who was noted as being in police custody, is said to have stated in the presence of the panch that he had committed the murder of Bai Vakhat and had removed her ornaments. this Court has pointed out over and over again that a statement that the accused has committed a murder does not fall within Section 27 of the Indian Evidence Act, because it is not a statement required to lead up to the production of the property. It is quite enough to say that he would show the property which belonged to the deceased. When I find a statement of that sort put into a document prepared by the police, I am disposed to draw every inference against the police officer. Obviously the Police Sub-Inspector wanted to impress the Judge with something which he knew he could not bring in as evidence. However, I am prepared to accept the evidence that the accused did produce the ornaments, and that they were the ornaments on the body of the deceased, shortly after the time of the murder.
7. The learned Government Pleader has invited us to convict the accused under Section 411 of the Indian Penal Code for receiving property which he knew to be stolen. The accused has merely denied that he produced the property. He gave no explanation of its possession. I have no doubt that on the evidence the proper inference is that he did know that this property had been stolen, whether or not he knew that the owner had been murdered. It is for him to prove how he came into possession of this property; otherwise the presumption under Section 114, ill. (a), Indian Evidence Act, would apply. Mr. Shah, however, for the accused says that we cannot convict the accused under Section 411, because the only charge is under Section 302 of the Indian Penal Code, and he has referred us to a decision of the Lahore High Court in Wallu v. The Crown (1923) I.L.R. 4 Lah, 373. In that case the accused had been charged only with murder. He was convicted by the trial Court, and the conviction was set aside by the High Court, It was held that the Court could not alter the conviction to one under one of the sections of the Indian Penal Code dealing with offences against property, and the Court dealt with the matter in these words (p. 375):-
The sole charge framed against the appellant was one under Section 302 of the Indian Penal Code, and it would not, in our opinion, be open to us to alter the conviction under Section 302 to a conviction under one of the sections dealing with offences against property. The appellant might perhaps have been charged under Section 236, Code of Criminal Procedure, with the offence of robbery as well as with the offence of murder, but he was not so charged, and the essentials of the two offences are so widely different that we do not think that Section 237(1) and still less Section 238(2), could be applied
I must confess that I do not follow that reasoning. It is extremely common to find that murders are committed for the sole purpose of perpetrating robbery, and I fail to see why the essentials of the two offences are different. The facts necessary to establish them are frequently common. It is usual enough, at any rate in this Presidency, for a person to be convicted both of murder and robbery, and separate sentences to be given for the two offences. No doubt, in this case the accused is not shown to have committed the robbery or that the robbery took place at the time of the murder though it probably did. He is only shown five days after the murder to have been in possession of the property worn by the murdered woman, and the question is whether we can in those circumstances convict him under Section 411 of the Indian Penal Code.
8. Now, Section 239(e), Criminal Procedure Code, provides that the following persons may be charged and tried together, namely, persons accused of an offence which includes theft, extortion, or criminal misappropriation and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons. So that it seems clear that the accused might have been charged with murder and robbery and, as an alternative to robbery, with receiving the proceeds of the robbery. The question then is whether, the accused not having been so charged, can nevertheless be convicted of one of the offences with which he might have been charged. Section 236 provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. The series of acts in this case might have justified if proved, a conviction on the charge of murder and robbery, and alternatively receiving property. Then Section 237 provides that if in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he. was not charged with it. It seems to me that that section applies. The accused might have been charged under Section 411 of the Indian Penal Code under Section 236 read with Section 239(e) of the Criminal Procedure Code, and Section 237 of the Procedure Code provides that if the evidence shows that he was guilty of the offence under Section 411 of the Indian Penal Code with which he might have been charged, it is open to the Court to convict him of that offence. In my opinion, therefore, we are entitled to convict the accused on the evidence on record of an offence under Section 411 of the Indian Penal Code. The learned Sessions Judge might himself have recorded such conviction.
9. Therefore we set aside the conviction of murder under Section 302 of the Indian Penal Code, and convict the accused under Section 411 of the Indian Penal Code, and sentence him to three years' rigorous imprisonment. The sentence to run from the date of the conviction in the lower Court.
10. I agree.