Jaganmohan Reddy, J.
1. In this case, the Sessions Judge of Bidar convicted the accused Ananthareddy, Malgonda and Mathuri Narsayya, son of Narsayya Dhed, under Sections 302 and 148, Indian Penal Code, and sentenced each of them to death and two years rigorous imprisonment respectively and convicted seven accused, viz., Fakirappa, Ramanna (Ramayya), Shankerappa, Sangayya (Sangappa), Lingayya, Gundappa and Bhaganna (Bhagayya) under Sections 302 and 148, Indian Penal Code, sentencing them to. transportation for life and two years rigorous imprisonment respectively. He ac-quitted three accused viz., Ramanna, Erayya (Eraooa) and Lalayya of the aforesaid charges. In the case of the first three accused, who have been sentenced to death records have been sent for confirmation and all the ten accused who have been convicted have also filed appeals.
2. The story of the prosecution is that the accused along with some others who belonged to the party of Ananthareddy (Accused No. 1) due to enmity with Lakshmareddy, the deceased with whom the said Ananthareddy had some land disputes, murdered the deceased? after inflicting wounds with axes near the pial of Rasool Saheb's house at about 6 a.m. on the 8th Dai, 1359 F., while the said Lakshmareddy was going to his field. This incident was witnessed by four persons, viz., Malkappa (Malkanna) P. W.4, Papayya (Pagagonda) P. W. 6, Keshanna (Keshgonda) P. W, 7 and Reyappa P. W. 8, who it is alleged reported the incident to Gundareddy, P. W. 2, the brother of the deceased Lakshmareddy, who in his turn reported the incident at about 7 a.m. to the Police Patel of the village, Lakshmareddy, P. W. 1. The said Lakshmareddy, P. W. 1, made a report to Sub-Inspector in charge of the Station House, Madnoor, who issued the F.I.R., Ex. 1, with which is attached the original report. On receipt of the said report, at 11 a.m. the Sub Inspector of Police Md. Abdul Ghafar, P. W. 9 went to the spot made a Panchanama of the dead body, Ex. 16, and sent the body for post-mortem examination to the Civil Surgeon of Bidar who issued the post-mortem report Ex. 17. 13 out of the 16 accused who were alleged to have taken part in the commission of the crime were arrested on the same day and as a result of the information furnished by them axes were re-s covered through Panchanamas Exs. 3 to 13. After the investigation was completed a chargen sheet was filed before the Magistrate, Bidar, for offences under Sections 243 and 124 of the Hyderabad Penal Code (corresponding to Sections 302 and 148, Indian Penal Code) on the 14th Bahman, 1359 F.
3. After the preliminary enquiry under the Hyderabad Criminal P.C. the case was committed to the Addl. Sessions Judge, Bidar on 23.2.50. After that the trial was commenced first by Nawab Ahmed Khan, who recorded the evidence of 8 witnesses from 3.2.50 and then after his transfer Gaziuddin Ahmed the succeeding Addl. Sessions Judge recorded the evidence of 7 witnesses afresh but was transferred before the conclusion of the case. In view of the application of the Indian Criminal P.C. from 1.4.51 the Sessions Judge who convicted the accused, conducted the trial under the Indian Criminal P.C. from 6.7.51 with the aid of the assessors. The previous statements of some of the witnesses recorded by the Sessions Judge who could not complete the trial before his transfer, became available to the defence for being utilised in the manner provided for in Section 145 of the Indian Evidence Act for the purposes of discrediting some of the material prosecution witnesses the effect of which will be noticed at the appropriate time hereafter in discussing the evidence.
4. The following incriminating evidence against the accused has been urged by the prosecution, namely:
(1) That there have been eye-witnesses who have seen the accused attack and injure the deceased with axes which resulted in his death.
(2) The incident was reported to the brother Gundreddy by these eye-witnesses and Gundreddy and the said eye-witnesses reported to the Police Patel, P. W. 1.
(3) The Police patel immediately made a report mentioning the names of the 13 accused upon which the F.I.R. Ex. 1 was issued which included these names.
(4) The accused were arrested the same day as a result of this investigation and the material objects, viz., the axes with which the accused are alleged to have perpetrated the crime were recovered at their instance from their respective houses.
5. The Police Patcl's (P. W. 1) evidence in brief is that about 7 a.m. Gundreddi, P. W. 2 came and informed him that his brother Lakshmareddy was killed by the 13 accused whose names he mentioned and that he was Informed of this incident by the eye-witnesses Revappa, Malkanna, Papagonda and Keshgonda and that immediately he issued the report attached to Ex. 1. According to the endorsement on the report and the evidence of P. W.9 the investigating Officer, it is clear that it reached the station house at Madnoor which is only two miles from Elgoi at about 11 a.m. and immediately after the receipt according to P. W. 9 he reached the spot at 12-30 p.m. According to P. Ws. 2 and 8, however, P. W. 9 reached the spot one hour or two hours after the incident which would be about 8 or 9 a.m. The determination of the approximate time at which the Sub-Inspector reached the spot becomes Important for the consideration of the question whether the report was sent before or after the arrival of the Sub-Inspector on the scene. It is contended on behalf of the appellants and suggestions have been made in the. cross-examination both of P. W. 1 and P. W. 2 that the report was sent by P. W. 1 at the instance of P. W. 9 after the investigation had been made and the names of the accused were subsequently ascertained. In order to determine this question it will have to be seen whether the testimony of P. Ws. 1, 2 and 9 can be believed. (His Lordship then referred to the evidence of P. Ws. 1, 2 and 9 and concluded that it cannot be believed).
6. If the statement in the First Information Report could be believed, it is a very strong piece of incriminating evidence against the accused, but in the view I have taken, it appears to me that the evidence of the eye-witnesses is robbed of considerable force.
7. When considering the evidence of the eye-witnesses, it is also necessary to see whether they are independent witnesses or have any interest in Gundreddi, P. W. 2 or the deceased Lakshmareddy. (The judgment then refers to testimony of other P. Ws. and concludes that it is unsafe to rely on it).
8. The State Prosecutor has urged that the previous statements of the witnesses should be read as a whole. This argument in my view is wholly untenable in law. A cursory reading of Section 162, Criminal P.C. or Section 145, Evidence Act, would show that previous statements are inadmissible in evidence except to the extent mentioned therein. If any of the previous statements had to be utilized as a whole, they could only be done under Section 288, Criminal P.C. and if this was not possible, the Public Prosecutor, ought to have utilised the right of re-examination to obtain any explanation of the witnesses regarding the previous statement so confronted, a right which has not been exercised at all.
9. After going through the evidence of these eye-witnesses, the casual nature in which these witnesses relate the incident,-very unconcerned and unmoved-in spite of its seriousness, creates an irresistible impression that the statements are artificial and made up for the occasion, a typical example of which is the statement of P. W. 8 when he says that when Papayya, P. W. 6, was going, witness asked him and Papayya told him that Lakshmareddy was killed. If this is so, he could not have been in his house when the accused dragged the deceased past it. On a consideration of the evidence of 1hese witnesses as a whole, I am of the view that it will be unsafe to rely en their testimony.
10. The next incriminating circumstances against the accused is the recovery of the axes and clothes of the deceased alleged to be at their instance so as to make it admissible under Section 27, Evidence Act. Exhibits 3 to 13 are the Panchanamas of the recovery which shows that from the accused Gundappa, Baganna, Ramanna, Shankerappa, Sangappa, Ananthareddy, Lalayya, Narsayya, Lingayya, Fakirappa and Malgonda, axes were recovered and from accused Ramappa, a rug (Kambal), dhoti and shamla of the deceased were recovered. None of these articles are alleged to contain any blood-stains, nor were they sent to the Chemical Examiner. The prosecution case is that the deceased after being killed was dragged and thrown into the well and his dhoti and shamla and rug (Kambal) were left behind which the accused took with them. There is, however, no positive evidence with respect to this fact. When the dead body was recovered the deceased had on him only a shirt and a half sleeve vest which were found to contain human blood vide Ex. 16(3) report of the Chemical Examiner. If the dhoti and shamla recovered from the accused belonged to the deceased, the deceased having been struck violently and there being profuse bleeding, as is evident from the earth on the spot sent to the Chemical Examiner which contained human blood, one would have expected these articles to have been immersed in blood, but no such thing is evident either from the Panchanamas or the testimony of tile Panch witness Maruthi, P. W. 5, the only Panch who has been examined. P. W. 5's testimony that on the Police Sub Inspector's enquiry accused Ramanna brought the dhoti and other things makes the recovery itself inadmissible. For purposes of Section 27, Evidence Act. what is required is that the recovery should be made as a consequence of information furnished by the accused in order to make so much of that statement leading to the discovery admissible. The. witness is also unable to say which axe was recovered from which accused. On the other hand, his statement that there are no bloodstains on any of those axes makes the recovery useless. The evidence pertaining to this aspect of the case led by the prosecution, in my view, has the effect of overburdening the record.
11. Before concluding I wish also to observe that in the depositions of P. Ws. 8 and 9, evidence of the statements made by witnesses to the police during the investigation which is clearly inadmissible under Section 162, Criminal P.C. has been let in. Recording courts must be careful to see that no inadmissible evidence is allowed to be adduced or recorded so as to raise an inference or give rise to the suggestion that the trial Judge was influenced by such inadmissible evidence.
12. I have not deemed it necessary to consider the defence evidence in the view I have taken of the prosecution evidence.
13. From the entire review of the evidence on record, the credibility of the witnesses, and a consideration of the probabilities, I have no hesitation in coming to the conclusion that the prosecution has not discharged the heavy onus resting upon it to bring home the guilt to the accused. In this view of the matter, the convictions and death sentences awarded to the three accused Ananthareddy, Malgonda and Narsayya cannot be confirmed and the appeals of all the 10 accused are allowed by setting aside their convictions and sentences and ordering their release forthwith, if' not required to be detained under law. The axes recovered be returned to the accused and the clothes be destroyed.
14. This judgment will govern the other connected appeals.