Venkata Ramaiya, J.
1. On the evening of 8-11-1952 one Venkataramanappa alias Appaiah aged about 43 years was murdered in front of his own house in Tirumalahally, a village situated at a distance of about 6 miles from Mulbagal and about 60 miles from Bangalore. Information of the murder reached the police Out Post at Tayalur shortly after and conveyed to the Sub Inspector at Mulbagal the same night. Investigation started on the following day and a charge sheet was placed on 25-11-1952 In the Magistrate's Court at Kolar against 9 men alleging commission of the offence of murder by some with the abetment of others amongst them. Of the 9 persons thus accused, the last has been absconding, the 3rd was discharged and the rest were committed for trial.
The learned Sessions Judge acquitted Accused 2, 4 and 5, found Accused 1 guilty of committing the murder and sentenced him to death. Accused 6, 7 and 8 are convicted under Section 302 read with Section 109 I. P. C. and sentenced to transportation for life. Against these convictions and sentences these four appeals are filed by Accused 1, 6, 7 and 8 respectively and for confirmation of the sentence of death there is a reference under Section 374 Criminal P. C. The appeals and the reference will be disposed of by this judgment.
2. It is undisputed that Appaiah. returned at about 6 P. M. on 8-11-1952 to his house after a visit to a neighbouring village, went out to bring coffee powder as his wife said that there was no powder to prepare the coffee he asked for and within a short while after this, severe injuries on his chest and abdomen were Inflicted causing instantaneous death. The only person who has given evidence as regards the persons who caused those injuries is P. W. 30, a son of the deceased Appaiah. Accused 6, 7 and 8 are not alleged to be the assailants but are said to have instigated or induced Accused 1 to murder Appaiah, For this, the evidence of two witnesses P. Ws. 27 and 28 is chiefly relied upon.
3. The motive imputed to A-6, A-7 and A-8 for plotting the death of Appaiah is that he and Accused 8 headed rival factions in the village, that owing to hostility of feeling between theparties Accused 8 was highly incensed when Appaiah who failed to secure even a single vote at the election of members to the Village Panchayati became the Chairman and therefore, in collaboration with Accused 6 and 7 who are both of his party, engaged Accused 1 for getting rid of him. Though the accused have denied the existence of parties in the village, the statement of P. W. 8 the Amildar that there were two parties, one led by Appaiah. the other by Accused 7 and 8 and that the two were at loggerheads at the time of the Panchayat Elections may be accepted as unbiased and true.
The records relating to the Elections were called for and exhibited to show that A-6 and A-7 did not stand as candidates at all for Election, that while A-8 got the highest votes, Appaiah got none and that he was not even nominated as a member of the Panchayat. The names of the elected and nominated members are mentioned in Ex. D-22 but no one is named as Chairman in the column provided for it. In view of the absence of Appaiah's name in Ex. D-22 and of any order or resolution about the Chairmanship, it is difficult to believe that Appaiah was or could be the Chairman as stated by some witnesses though he was miserably defeated in the election and not even nominated as a member. The Amildar does not speak to it and no rule under which this is possible has been pointed out.
4. The Interval between the election and the murder is so long as two years during which Accused 8 would not have failed to disclose his resentment by protest or otherwise if Appaiah acted as Chairman and if A-8 took it seriously. There is nothing to suggest that Accused 7 or Accused 8 was enraged against Appaiah on this account or that his being the Chairman prompted or aggravated hatred towards him. It is not likely to have been dormant for nearly two years and suddenly without any further provocation flared up so as to goad Accused 6, 7 and 8 to employ hirelings for killing him. Considering the evidence as a whole the motive alleged for the abetment of the offence appears to be weak and far-fetched.
5. As regards the evidence relating to the charge Sri Jayaram Iyer learned counsel for Accused 7 and 8 argued that apart from its being untrustworthy, it has no bearing on the charge framed against Accused 6, 7 and 8 since the date. of the abetment is stated in the charge to be that of offence or about that time, while evidence is let in to make out that the instigation was 10 days earlier. This divergence concerning the time is commented upon as a vital defect sufficient to entitle the Accused to an acquittal irrespective of the evidence. There would not have been room for the objection if it was stated in the charge that the Accused abetted the commission of the offence between any two dates within which the one referred to by the witnesses falls. The charge in -- 'Balmokand v. Emperor AIR 1915 Lah 16 (A), was of that kind.
The abetment in the present case is sought to be proved not by inference from acts or circumstances spread over days but by the conversation of Accused 1 with Accused 7 and 8 on a particular day at a particular place and this conversation implies that the instigation was indefinitely earlier but not within a fortnight as ft is said to have started with reminding Accused 1 ot the payment of consideration for the murder of Appaiah about a fortnight back and pointing out the dilatoriness on the part of Accused 1 to fulfilthe task. Excepting the conversation itself there is nothing on record to suggest that Accused 6, 7 or 8 contacted Accused 1 or arranged with him either before or after it, for the murder. If, as Indicated in the conversation, the scheme for murder originated previously the abetment must be deemed to have been about 20 days prior to the commission of the offence.
6. Section 222, Criminal P. C. states ;
'The charge shall contain such particulars as to the time and place o the alleged offence and the person (if any) against whom and the thing (if any in respect of which) it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.'
The charge framed against Accused 6, 7 and 3 alleges that on or about 8-11-952 at Thirumalahally they abetted the commission of the offence of murder of Appaiah, by A-1, A-2, A-4, A-5, etc. There is no evidence of abetment either oil 8th November or at Thirumalahally. The words 'on or about the 8th November at Thirumalahally' in the charge cannot be construed as being comprehensive enough to apply to acts outside the village about 20 days earlier and sufficient to give notice of it to Accused, in View of this there is force in the contention that if the time of abetment had been specified hi the charge in keeping with the evidence the Accused may well have established a plea of alibi and they are prejudiced by the evidence which is clearly at variance with the charge so far as the date is concerned, being acted upon. In --Panchu Gazi v. Ejahar Ali Sarkar' AIR 1914 Lah 535 (B), a conviction for assault was quashed by Tekchand J. on the ground amongst others that the error in the charge as regards the date of assault was a material irregularity.
7. The learned Sessions Judge has apparently overlooked the discrepancy and the effect of this. He has also failed to notice that the evidence, such as it is, is thin in varying degrees to prove abetment by Accused 6, 7 and 8.
8. Accused 6 and the other two are of different castes and there is evidence of a protracted litigation between him and Accused 8 still pending in this Court. It is also admitted that his brother was murdered by a brother of Accused 1. The improbability of Accused G being in intimate association with Accused 8 or Accused 1 on account of these is strengthened by his having acted as an interested friend of Appaiah in persuading his wife to join him. P. W. 19 has testified to the compromise he brought about. P. Ws. 27 and 28 who profess to have overheard the talk do not say that Accused 6 participated in the talk and from the conversation as rendered by them even the presence of Accused G when the murder by Accused 1 was hit upon and fixed previously cannot be inferred.
9. P. Ws. 27 and 28 are, what may be called 'chance witnesses', who as passersby out of curiosity or otherwise, casually listened to the exchange of talk going on between Accused 1 on the one hand and Accused 7 and 8 on the other, while these were seated on a mound in a garden known as Aziz garden. They could not have heard the talk but for a conjunction or series of accidents such as selection of the particular route which lay near the Aziz garden in preference to shorter or other routes for returning to their village arrival at the place at the crucial moment when the conversation relating to murder commenced, availability of a convenient position for them to hear without being seen, their remembering theexact words employed for the question and answers but nothing else spoken at the time. Privacy and secrecy are more characteristic of a conspiracy than a loud discussion in an elevated place open to public view in the garden of a stranger. These are considerations for assessing the evidence of these witnesses with special care and caution.
P.W. 27 admits that in his deposition as recorded by the Magistrate, there is no reference to Accused pointed out to the Inspector and that he is indebted. It is suggested in the cross-examination that his evidence regarding genuineness of a receipt produced by a judgment-debtor in Chittoor Court was disbelieved, that petitions are sent by him to Government about the present case and that Accused 7 had preferred a complaint against him for cutting sandal tree. P. W. 28 denies that he was fined by the Amildar on a complaint by A-7. But Ex. D-1 shows that for the wrongful disposal of trees belonging to Government as his own, he was fined Rs. 50/-and ordered to pay Rs. 120/- as value of the trees. When there is no express reference to Appaiah by Accused 7 in the conversation as reproduced by this witness, no reference to Accused 8 in the deposition of p. w. 27 in the committal Court and accused 6 according to both was a mere listener and a spectator, the conversation which is mainly relied upon as of proof of conspiracy can be of little value, apart from the charge being defective. The fact that these Accused travelled in the same bus sometimes as stated by p. Ws. 12 and 17 or that they drank coffee together in a hotel as stated by P. Ws. 10 and 11 can only signify at best companionship and not conspiracy. P. Ws. 9 and 19 say that Accused 1 and 5 have got lands and houses, and apparently A-1 was in want or need to be tempted to serve as hireling.
10. Another factor to be noticed in regard to the theory of abetment is that according to the evidence of P. Ws, 19 and 25, Accused 1 and his brother are said to have often manifested their hostility to Appaiah by threatening to strike him with chopper and dagger in their hands. P. W. 8 the Amildar says Appaiah complained to him about Accused 5 for this. P. Ws. 29 and 33 also say that Accused 1 and 5 were inimical to Appaiah. If Accused 1 was a sworn enemy of Appaiah and made no secret of his determination to kill him, he did not need instigation of any one to perpetrate the crime. Payment of money to him was unnecessary and an avoidable payment is not likely to have been made by Accused 7 and 8 as inducement for the commission of the offence. In any case there is uncertainty of the murder being due to Accused 1's own determination or instigation of Others. A-2, A-4, and A-5 who along with Accused 1 were charged with commission of the offence have been acquitted. Though the charge imputed abetment of the commission of the offence by all these no evidence whatever is adduced with respect to Accused other than A-1. On the whole, I think the materials on record are inadequate to justify the conviction of A-6, A-7 and A-8 for an offence under Section 302 read with Section 109. I. P. C.
11. The conclusion arrived at about A-3, A-7 and A-8 affects to a certain extent the case against A-1 who is held to be the principal offender as it takes away the alleged cause for the attributed acts. Though enmity against Appaiah is said to be common to A-1 and A-5, though P. W. 30 the eye witness has stated that A-2, A-4 and A-5 struck Appaiah and P. W. 31 says that he saw both A-1 and A-2 run away soon after the fatal assault, the learned Judge has felt itunsafe to rely upon these for convicting Accused 2, 4 and 5. The main reason for a difference being made in the case of Accused 1 appears to be his being mentioned in Ex. P-7 as the only assailant and production of M.O. 7 the bloodstained dagger by him from a hut.
Beyond stating that Accused 1 was expressing and displaying his murderous intent none of the witnesses has ascribed any motive for A-1 being wroth against Appaiah. The 'threats, if true must have been slighted, treated as empty, as no complaint is shown to have been made against A-1 and the only complaint was to the Amildar and that against A-5 and not A-1. The contest in the election was between the deceased and A-3 amongst the Accused. A-1 did not figure in it nor does it seem that he espoused the cause of any of the rivals. Lack of even a plausible ground on which he may be deemed to have been driven to indulge in a cruel attack, unmindful of consequences is an important factor to be borne in mind while dealing with the case against Accused 1 as motiveless murders are rare.
12. It is no doubt stated in Exhibit P-7 that A-1 was the assasin and this would have been a strong factor against him if it was free from suspicion. The Patel P. W. 29 by whom Ex. P-7 was signed and sent, says that ho does not know its contents. It was written by his brother P. W. 34 who is a dismissed patel and is succeeded by Accused Section The learned Judge has characterised him as a very unreliable person and this is borne out by his having mentioned only the name of Accused 1 in Ex. P-7 though 'P. W. 30 told P. W. 29 in (his) presence that A-1 and others had killed his father; while he says that signature of P. W. 30 was not taken to the report P. W. 30's statement in the committing court was 'after hearing me (him) P. W. 29 (Patel) told Apps Gowda (P. W. 34) who wrote the report and they took my (his) signature to it'. The evidence of P. W. 26 the constable at Tayalur Out-Post who received Exhibit P-7 makes it worse as he says that on receipt of Ex. P-7 he noted in his day book that 'some one' had murdered Appaiah on the public road and his statement before the Magistrate is that P. W. 34 wrote Ex. P-7 before the Police Station, P. W. 29 signed it in the presence of P. Ws. 31 and 33. The latter statement is contrary to that of the Patel and the said witnesses and the entry is inconsistent with the recitals in Ex. P-7.
There is thus a grave doubt whether Ex. P-7 is really the first report of the occurrence, whether it was written at the village chavadi on the basis of the information given by P. W. 30 or prepared later near the police station in consultation with the witnesses. The discrepancy between the entry in the book that 'some one' and the statement in Ex. P-7 that A-1 was the murderer was left unexplained in re-examination of P. W. 26 and the book has not been produced. It is now represented that there is no such book and no entry whatever but this was not elicited from the witness or the Inspector who was examined later. In view of this and Rule 123 of the Police Manual, Volume I. which states:
'Every literate constable .... .... .... ..shallmaintain a not book in Form No. 22 wherein he shall record the work done by him, the facts observed, information obtained etc.',
the statement of the witness cannot he false or ignored. Added to this there is admission of P. W. 35 the Police Inspector that P. W. 29 the Patel had given a petition saying that the original complaint given by him was torn by the Inspector and another got written.
The complaint referred to is Ex. D-13 dated 13-11-1952 addressed to the Deputy Commissioner wherein P. W. 29 mentioned two persons as eyewitnesses to the murder and alleged that the Inspector and his subordinates came to the spot, hurled abuses on him. tore away the report sent by him, got some report written by compulsion and coerced him to sign it, which is 'contrary to facts'. Exhibit P-34 dated 5-11-52 is another report by P. W. 29 addressed to the Daffedar, Tayalur circle: wherein information given by two persons about the names of murderers are set forth. P. W. 25 the Inspector denies having received any report such as Ex. P. 34. The impression left by all these is that there was shuffling and manipulation in the representation of the incident. Exhibit P-7 cannot therefore claim the 'importance and weight due to a First Information Report.
13. As regards witnesses to the occurrence, two were cited in the charge sheet but only one is examined and he is a son of the deceased, 10 or 12 years of age. His version of the incident is that A-1 and A-5 each held one arm of his father, A-1 pierced his chest with a dagger, A-2 hit his head with a chopper, that on a cry being raised A-2, A-4 and A-5 ran away, A-1 then felled the father and pierced the stomach with a dagger and ran away, he told his mother P. W. 32, then P. W. 33 and P. W. 29 the Patel that A-1, A-2, A-4 and A-5 killed the father. The statement with respect to A-2, A-4 and A-5 is contradicted by P. W. 29 who says that only A-1 was mentioned as murderer. The boy pleads confusion for making inconsistent statements about signing the report. The attack is said to have taken place subsequent to the father saying that he would go to shop of P. W. 19 for coffee powder and after his return but there is no proof of his having gone there. The Bhajanemane Mane is situated near the house of the deceased and out of the 10 or 12 persons present there, only P. W. 19 came out hearing the cry and he too does not say that A-1 was seen.
The evidence of P. W. 31 who is of a different village is that he saw Appaiah being surrounded by 4 or 5 persons including A-1 and A-2 with dagger and chopper, that A-1 and A-2 ran after Appaiah was struck down and that he did not mention what he saw to any one but the police. His evidence can only be taken as being suggestive and not positive as regards actual assailants. His running away without calling for aid and omission to mention the incident to any one is however strange. P. W. 33 who speaks to A-1 and A-2 running away with M.O. 7 and M.O. 9 respectively in their hands; is not a disinterested person as he admits that A-1, A-2 and A-5 were witnesses for the prosecution In a case in which he was accused of murder. He seems to have taken active Interest in this case. That A-1 was seated and A-2 was standing by his side near the house of Appaiah. as spoken to by P. W. 19, before the occurrence, is not a material circumstance against A-1 as his own house is close by. Unless it is possible to rely on the testimony of P. W. 30 the evidence of all those will not be sufficient for the conviction of A-1.
14. The learned Assistant Advocate-General contended that production of M. O. 7 by A-1 supports the evidence of P. W. 30, M.O. 7 is of collide a deadly weapon stained with mammalian blood, secured in a hut outside the village surrounded by fields at a distance of 3/4 mile (VideP. W. 17). According to P-29 the mahazar it is roofed with cocoanut leaves and date leaves and dimension is such as to admit only one person inside. P. W. 18 an attestor of Ex. P-28 which embodies the information given by A-1 says that the hut has no door, shutter and no walls around. P. W. 19 the attestor of Ex. P-29 says that A-1 and A-5 live jointly in a house in the village. Since M.O. 7 is an instrument of the kind possessed ordinarily by persons in the village, situation and condition of the hut were such as to afford easy access and entry, to any one. A-1 and his brother A-5, were living together and both were accused of the murder, the production of M.O. 7 by A-1 is not by itself sufficient to incriminate him though it may raise suspicion. It only implies that he was aware of M.O. 7 being kept or left in hut.
As observed in --'P. Kottaya v. Emperor' AIR 1947 P. C. 67 at p. 71 (C).
'Except in cases in which the possession or concealment of an object, constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof and the other links must be forged in the manner allowed by law.'
As means or connecting A-1 with the offence its value depends on the other evidence and chiefly Ex. P-7 and that of P. W. 30. In the course of the investigation itself Ex. P-7 was denounced by the very person who sent it as a substitution for a report made earlier, of which nothing is known.
15. Besides, elements of inconsistency in what P. W. 39 has stated on different occasions about the persons responsible for the death and the report of it, omission to examine the person numbered 10 in the charge sheet was urged as an infirmity in the prosecution case to discount P. W. 30's evidence. The charge sheet credits him. with being an eye-witness present at the occurrence. If his evidence was made available to corroborate P. W. 30, it would certainly have been of help for the decision. Unfortunately the examination of that person was given up during the committal proceedings on the ground that he had turned hostile. It is contended that the examination was nevertheless necessary and the observation of the Judicial Committee in' --'Stephen Seneviratne v. The king' AIR 1936 P.C. 289 at p 300 (D), that
'witnesses essential to the unfolding of the narrative on which the prosecution is based, must of course be called by the prosecution whether, in the result, the effect of their testimony is for or against the case for the prosecution'
was relied upon. The observation cannot be read as laying down an inflexible rule to be invariably followed in every case, whatever the consequence or letting in the evidence and the reason for not adducing it may be.
The prosecution cannot be expected much less enjoined to produce evidence which tends to demolish its own case but has to present it in fairness in its true colour without twisting or straining it for securing a conviction but put it for consideration by the court. If all available evidence helpful to the prosecution as well as destructive of the case put forward, is placed before the court, needless confusion will be caused and unnecessary labour will be imposed on the Court. That such a course was not intended to be adopted is clear from what is stated earlier in the same case thus :
'Their Lordships do not desire to lay down any rules to fetter discretions on a matter such as this which is so dependent on the particular circumstances of each case........they cannot,speaking generally approve of an idea that a prosecution must call witnesses irrespective of number and reliability or that a prosecution ought to discharge the functions both of prosecution and defence.'
On the assumption that the omission on the part of the prosecution to examine witness No. 10 in the charge sheet is justified it has the effect of leaving the evidence of P. W. 30 alone as that of an eye-witness, without the strength of corroboration by another and showing that a person expected to have knowledge of the incident is unwilling to support the case against A-1 as no reason whatever is given for his having turned hostile. Although it is permissible to base a conviction on the testimony of a solitary witness and there are instances of such convictions even for capital offences, such instances are rare and found to be of exceptional circumstances. This case cannot be considered to be one of that type as the spot of murder is surrounded by houses in the village and close to the Bhajanemane where people congregate and the time was evening when people usually return home. It is difficult to assume that none but P. W. 30 could have witnessed the commission of the crime or that better material could not have been placed before the Court. Though the murder was brutal and dastardly and committed in an outrageous manner in the open street which should attract persons to quickly come for aid and catch the culprit, they escaped untouched leaving the man dead.
What followed the gruesome event, has instead of unravelling the forces which led to it and the persons responsible directly or indirectly for the commission, has clouded the affair with suspicion and speculation beginning with the F. I. R. The investigation was impugned soon after it began, as not proper. The Inspector P. W. 35 did not apply for the records relating to panchayat Election being sent, for verifying whether Appaiah was Chairman at all. Nor did he find out and examine the Revenue Inspector who conducted the elections. The explanation that he could not make out where the Revenue Inspector is, ts puerile as there is no proof of his asking for the information and not getting it from the office of the Revenue department. Although P. W. 27 apprised him of the conversation in the Aziz garden two days after the crime, he did not visit the spot and ascertain from P. Ws. 27 and 28 the place of conspiracy and of the heating.
Although information relating to the conspiracy appears to have been gathered before the 15th November, no reference to the conspiracy is made in the application for remand of that date, and there is mention of it for the first time in the application of 18-12-52. The statement in the course of the Inspector's deposition 'I learnt that A-5's brother had married A-5's sister' cannot be true as A-5 and A-6 are of different castes. The manner in which statements of the witness were recorded by noting the substance instead of verbatim was criticised but I do not think recording the substance of the statements can be said to be a non-compliance with the new subsection to Section 161, Criminal P. C., which slates:
'The Police Officer may reduce into writing anystatement made to him in the course of anexamination under this section and if he does so he shall make a separate record of the statement of each of such person whose statement he records,'
'-- 'Bejoy Chand v. The State : AIR1950Cal363 (E), cited on behalf of the Accused docs not support the contention that the statement should us recorded in full.
Harries C. J., no doubt states at p. 364 :
'In other words if a police officer examines a number of witnesses he cannot record condensed version of the examination of all of them or a precis of what the witnesses are supposed to have said. He must record what each witness says. He cannot for example record that witnesses A, B and C said so and so'.
The case was one in which statements before the police were sought to be made use of, for the purpose of contradiction during the trial and therefore the exact words before the police and not the statements in a 'boiled form' were deemed necessary. This is made clear by stating later
'Before concluding I should like to point out that if it is possible to deduce from the gist recorded what witnesses said then, what each witness said must be put to the witness, if it is intended to contradict the witness by use of such statement.'
'In re, Subba Reddi', AIR 1948 Mad 23 (F), cited by the learned Assistant Advocate General directly deals with the content ion now raised and lays down that the Investigation Officer need not record verbatim what the various witnesses tell him and that the new sub-section hits at the practice of writing against the names of certain witnesses after the first that they corroborated the statements of the earlier witness. The section leaves it to the option of the police officer to record or not. statements of those he examines, and when he does record statements of a number of persons, each statement must be capable of being road by itself without necessarily looking into the other. To facilitate the statement being used for purpose of contradiction, it is advisable to note as far as possible, the exact words in which the statements are made and also to err, if at all, on the side of superfluity rather than brevity as that will avoid controversies about omissions.
16. Apart from this the investigation does not seem to have inspired confidence amongst the villagers and the course as well as the result of the proceedings lend support to it. This is a matter for enquiry and appropriate action by the authorities.
17. Having regard to the factions in the village and personal jealousies against opponents, the possibility of manipulation and developments in the case cannot be excluded. There is much which is not natural and not normal be grossed over to justify the conviction. It is highly unfortunate that the evidence in such a serious case as this, should be riddled with flaws and inconsistencies. Whatever may be the reasons for these, the Accused are entitled to have the advantage of the proof not being clear and convincing to bring home the guilt.
18. On this consideration, I am of opinion that the case is not established beyond doubt against the Appellants including Accused 1. The convictions and sentences are therefore se. aside and A-1, A-6, A-7 and A-8 are all acquitted The Accused are directed to be set at liberty forthwith.
19. Convictions set aside.