Madhusudan Rao, J.
1. The sole accused in Sessions Case No. 68 of 1978 on the file of the Visakhapatnam Sessions Division is the appellant. He was convicted under Sections 302 and 379 of the Penal Code and was sentenced to suffer imprisonment for life and rigorous imprisonment for one year respectively. The sentences were directed to run concurrently.
2. The case of the prosecution is : Yalla Sanyasamma, the deceased in this case, was a much married woman of loose character. After discarding her second husband, she had disputes with her third husband and went away to her mother's house at Madanapuram, where her sister, P.W. 1, was also living separately. Her husband, Suri Demudu, was visiting her now and then at Madanapuram despite the disputes between them. Imandi Sathiraju, the accused, has his mother at Madanapuram. His sister, Simhachalam (P.W. 10) lives at Vinayakapalli, about six miles from Madanapuram. The accused discarded his wife and left Madanapuram without his whereabouts being known. In about May, 1978 the accused came to his sister's house in Vinayakapalli. Staying with his sister, he was visiting his mother's house at Madanapuram frequently. He had prior illicit intimacy with deceased. He renewed his contacts with her during his visits to Madanapuram. The marriage of the accused was settled by P.W. 10 with one Kondamma, the daughter of P.W. 11. To see that the illicit contact between her brother and the deceased would come to an end. P.W. 11 requested the accused through the accused's sister, P.W. 10 to celebrate the betrothal ceremony by giving 6 annas worth of gold to P.W. 11's daughter and the accused agreed to the suggestion. The betrothal ceremony was to take place in the night of 19th August, 1978.
3. On 19-8-1978 at about 11-00 a.m. the deceased told her sister, P.W. 1, that she was going to Vizianagaram for medical treatment. She was then wearing the gold ornaments, M.Os. 1 to 4, on her person. She went to the bus stop at Madanapuram and when she was waiting for the bus, the accused came there. On the arrival of a bus from S. Kota, the accused, the deceased and P.W. 3 got into the but, which started from near the coffee hotel of P.W. 2. The deceased and the accused got down the bus at the Thamarapalli junction along with P.W. 3 and some other passengers. After getting down the bus the deceased and the accused went towards Dharamavaram. By about 1-00 p.m., P.W. 4, a relation of the deceased saw the accused and the deceased at Bonangi junction. He did not question the deceased as to why she was going with the accused or where they were together going as he knew of the illicit intimacy between the accused and the deceased. P.W. 5 saw the accused and the deceased in Dharmavaram village at about 6 p.m. He was originally a resident of Madanapuram. He enquired the accused as to where they were going and the accused told him that they were going to Madanapuram. By about lamp lighting time, P.W. 6, a resident of Bonangi saw, while he was in his field, the accused and the deceased going towards Maradam village. He heard the deceased telling the accused that they could proceed along the usual way and the accused telling that they could go along a short cut route through Juttada Krishna's field. P.W. 6 noticed that the accused and the deceased went along the short cut route passing through Juttada Krishna's field. P.W. 7 another resident of Bonangi also saw the accused and the deceased going towards Moota Kaluva, which is between Bonangi and Madanapuram. P.W. 8 saw the accused and the deceased at Juttada Krishna's Kallam at about 7-00 p.m., while he was proceeding to Bonangi to see a picture. He enquired the accused as to why he was going along the short cut route and the accused told him that they resorted to a short cut route as the bus drivers were on strike. P.W. 9, a resident of Madanapuram, saw the accused near Moota Kaluva, while he was going to Banangi village. He noticed that the accused was then wearing drawers and baniyan with his shirt and pant hanging on his shoulder. When P.W. 9 accosted him the accused went away without giving any reply.
4. As the accused did not came home by the time the betrothal was fixed, P.W. 10 gave her ear studs and nose rings to the would be bride, Kondamma. The accused came to P.W. 10's house only by about 10-00 P.W. When enquired about the delay, the accused told P.W. 10 that he had to contact his friends for money to purchase gold. So saying the accused gave the nose besari (M.O. 1) to P.W. 10. Thereafter, the accused took his meals in P.W. 11's house and left Vinayakapalli the next morning.
5. On 28-9-1978 at about 7-00 a.m., the accused pledged three nose rings (M.) 3(a) with P.W. 12 for an amount of Rs. 50 stating that he needed the money for his marriage. At about 8-00 a.m., on the same day he went to P.W. 13 and requested him to lend some money for his marriage. But P.W. 13 expressed his inability. On the insistence of the accused, P.W. 13 lent an amount of Rs. 150 on the security of the ear studs (M.O. 2) and the nose ring (M.O. 4) pledged by the accused with him. The accused sold three ear rings to P.W. 14 at Vizianagaram. Collecting all this money he went to P.W. 10's house by the night and got his marriage performed. After the marriage, the accused went to his mother's house at Madanapuram with his wife and sister and gave a feast for which he bore all the expenses.
6. On 24-8-1978 in the morning the Talayari of Bonangi (P.W. 15) heard people in the street saying that a dead body was lying near Moota Kaluva. He conveyed the news to the Village Munsif (P.W. 17). The village Munsif, the Talayari and the another Talayari went to Moota Kaluva and saw a dead body near Moota Kaluva in the field of Imandi Appanna. P.W. 17 prepared a report under Ex. P-1 and sent the same to the police station, S. Kota.
7. On receipt of the report, the Sub-Inspector (P.W. 21) registered a case and proceeded to the scene of of occurrence. As the dead body was that of unidentified female, P.W. 21 deputed constables to Bonangi and Madanapuram and other villages to widely publish the news of dead body being found. Several villagers came. P.W. 1 and her father identified the dead body as that of the deceased. P.W. 21, thereupon, held an inquest over the dead body of the deceased and later sent the dead body for post-mortem examination through the constable (P.W. 20).
8. Dr. K. Rajayalakshmi (P.W. 23) conducted autopsy over the dead body on 25-8-1978 and opined that the deceased died of asphyxia due to drowning about 5 or 6 days prior to the post-mortem examination. The S.I. of Police, Kottavalasa, who was an in charge Inspector of Police, arrested the accused on 28-8-1978 and when interrogated, the accused made a statement leading to the discovery of M.Os. 1 to 4 from P.Ws. 10, 12, 13 and 14. P.W. 22 got a test identification held for M.Os. 1 to 4 by P.W. 1 and her mother. After completion of the investigation a charge-sheet was filed against the accused by P.W. 22.
9. The plea of the accused is one of complete denial.
10. In support of its case the prosecution has examined 24 witnesses of whom P.W. 1 is a sister of the deceased. P.W. 2 has a coffee hotel at the bus stop of Madanapuram. P.Ws. 3, 4, 5 and 9 are residents of Madanapuram. P.Ws. 6 and 7 are residents of Bonangi. P.W. 8 is a resident of Vemulapalli. P.W. 10 is the sister of the accused residing at Vinayakapalli. P.W. 11 is the accused's father-in-law. P.Ws. 12 and 13 are residents of Vinayakapalli. P.W. 14 is a jewellery shop owner at Vizianagaram. P.W. 15 is the village Talayari. P.W. 16 is the Luskar in the Irrigation and Power Department. P.W. 17 is the village Munsif, who sent a report about the finding of a dead body in Moota Kaluva. P.W. 18 is the Village Munsif of Madanapuram, while P.W. 19 is a photographer. P.W. 20 is the constable, who carried the dead body for post-mortem examination. P.Ws. 21, 22 and 24 are the Police Officers, who conducted investigation into the case and P.W. 23 is the doctor who conducted autopsy over the dead body of the deceased.
11. The accused did not examine any witnesses on his behalf.
12. On a consideration of the evidence the learned Sessions Judge accepted the evidence of all the circumstances adduced by the prosecution and held that the circumstances established by the prosecution proved that the accused is guilty of murder and theft and accordingly convicted and sentenced him as stated above.
13. Sri C. Padmanabha Reddy, the learned counsel for the appellant contends that the evidence of circumstances is not true and that at any rate the circumstances proved do not warrant a conclusion of the accused having either committed the murder of the deceased or any theft of the jewels of the deceased. The learned Additional Public Prosecutor, on the other hand, contends that the various circumstances proved by the prosecution lead to the sole and certain conclusion of the accused's guilt under both the charges.
14. This is a case where there is no direct evidence and the entire case rests only on circumstantial evidence. In such cases it is now well settled that the Court has to first see whether the evidence of the circumstances it true and then see whether the circumstances, which are found to be true lead to the sole and certain inference of the accused being guilty and whether they are inconsistent with the innocence of the accused. In examining the evidentiary effect of the circumstances the Court has to guard itself against the tendency to substitute suspicion or supply links, which are missing to constitute the necessary chain of guilt. As pointed out by their Lordships of the Supreme Court in Hanumant v. State of M.P., : 1953CriLJ129 in such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson to the Jury in Reg. v. Hodge, (1838) 2 Lewin 227) where he said : 'The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete'. We would like to examine the evidence bearing these principles in mind.
15. The circumstances, which the prosecution relied on in the instant case are :
(1) The accused and the deceased boarded the bus at Madanapuram bus stop at about 11-00 a.m., on 19-8-1978 and got down at Thamarapalli junction and proceeded towards Dharmavaram. This circumstance is spoken to by P.Ws. 2 and 3. The learned trial Judge accepted the evidence of P.Ws. 2 and 3 and we do not also find any valid reason to discredit or doubt the testimony of either P.W. 2 or P.W. 3. Both these witnesses are disinterested. Neither of them has any ill-will or malice towards the accused.
16. The second circumstance is : The accused and the deceased were seen together by P.W. 4 at about 1-00 p.m., near Bonangi junction. Though P.W. 4 is related to the deceased, it does not appear that her evidence is false or untrue when as spoken to by P.Ws. 2 and 3 the accused and the deceased boarded the bus at Madanapuram bus stop and got down the bus at Thamarapalli junction, it is not improper or unlikely that they were seen together at 1 p.m. near the Bonangi junction. The evidence of P.W. 4 though uncorroborated and though P.W. 4 is interested in the deceased is quite probable and in accordance with the inference which arise from the fact proved by the disinterested evidence of P.Ws. 2 and 3. No doubt as contended by the learned counsel for the appellant P.W. 4 did not even accost the deceased though the deceased is his relation. But the explanation given by P.W. 4 is quite reasonable and we are not inclined to doubt the testimony of P.W. 4 either because any other witness did not speak to the same fact or because she did not accost the deceased nor because she is a relation of the deceased.
17. The third circumstance is that the deceased and the accused were seen together at Dharmavaram by about 6 p.m. P.W. 5 speaks to the circumstance.
18. The 4th circumstance is that the accused and the deceased were seen together while proceeding along a shortcut route. This circumstance is spoken to by P.W. 6 while P.W. 5 stated that he saw the accused and the deceased together at about 6 p.m., at Dharmavaram junction. P.W. 6 stated that he saw them going towards Madanapuram at about lamp lighting time when they were just near the short-cut route. The evidence given by the two witnesses is quite probable and consistent with the evidence of P.Ws. 2, 3 and 4 and so we are not inclined to doubt the evidence of these two witnesses also.
19. The fifth circumstance is that P.W. 7 saw the accused that the deceased going towards Moota Kaluva. P.W. 7 has his thrashing floor at a distance of 100 yards from Moota Kaluva. It is no improbable that P.W. 7 was present at his thrashing floor and saw the accused and the deceased while they were going towards Moota Kaluva. P.W. 7 explains the reasons for his not accosting the accused that deceased and his explanation is quite reasonable. As pointed out by the trial Judge, he is an independent ryot having no axe to grind against the accused.
20. The 6th circumstance is spoken to by P.W. 8. He deposed that he saw the accused and the deceased at about 7-00 p.m. near Juttada Krishna's kallam while he was going to see a picture at Bonangi. There is nothing improbable in the version of P.W. 8. We are, therefore, inclined to believe the evidence of P.W. 8 also.
21. The 7th circumstance is that the accused was seen alone near about the scene of occurrence by P.W. 9, who is a resident of Madanapuram. He deposed that while he was going to Bonangi to see a picture he saw the accused all alone near Moota Kaluva and that the accused was then wearing merely drawers and a baniyan and that the accused then was also having his pant and shirt over his shoulder. In his statement under Section 161, Cr.P.C., the witness did not mention all these details particularly about the pant and shirt being carried on the shoulder. The learned trial Judge accepted the evidence of this witness. But we feel hesitant to accept it, in the absence of some kind of corroboration with regard to the inculpatory facts which he is speaking for the first time during the trial, namely, the accused being dressed only in a half drawer and baniyan having his pant and shirt hanging on his shoulder and not giving any reply to him when he accosted him.
22. The next circumstance is that the accused did not attend the betrothal ceremony at the hour fixed. P.W. 10's evidence itself contains the explanation given by the accused. If the other circumstances are inculpatory, this circumstance may have a tinge of incrimination. If the other circumstances are of no value, this circumstance cannot by itself be of any value to the prosecution.
23. The last circumstance on which the prosecution relied is the recovery of M.Os. 1 to 4 at the instance of the accused. The evidence of the Inspector (P.W. 22) and the village Munsif (P.W. 18) shows that, on being arrested by P.W. 22 on 28-8-1978 and interrogated, the accused made a statement leading to the discovery of the gold jewels (M.Os. 1 to 4). The evidence of P.W. 10, who is none else than the sister of the accused shows that the accused gave the nose besari (M.O. 1) to her. P.W. 12 is a neighbour P.W. 10. His evidence shows that the accused pledged three nose rings (M.O. 3(a)) with him for Rs. 50. P.W. 13 is another resident of Vinayakapalli where P.Ws. 10 and 11 reside. He deposed that the accused pledged with him the are studs (M.O. 2) and nose ring (M.O. 4) for Rs. 150. P.W. 14 is a jewel merchant at Vizianagaram. He deposed that three ear rings (M.O. 3) were sold by the accused to him for Rs. 212. We see no reason to disbelieve or doubt any one of the four witnesses, P.Ws. 10, 12, 13 and 14. The accused also admits during the trial the transaction spoken to by these four witnesses in regard to M.Os. 1 to 4. He, however, claims that the M.Os. 1 to 4 belong to him. P.W. 1, the sister of the deceased, identified M.Os. 1 to 4 as the ornaments of the deceased and added that the deceased was wearing been on her person when she left the house for the last time for Vizianagaram. P.Ws. 2, 3, 4 and 5 stated that, on the date of the occurrence, they found the deceased wearing gold nose rings and ear rings, P.W. 1' evidence further shows that the gold ornaments were missing from the dead body when she went near Moota Kaluva and identified the dead body as that of the deceased. Except the bald assertion of the accused that M.Os. 1 to 4 belong to him, there is nothing in support of this assertion. Though there are no special marks of identification for M.Os. 1 to 4 and they are ornaments of common pattern, P.W. 1 has identified them not only during the trial, but also in a test identification held during the investigation.
24-25. What emerges from the shown scrutiny of the evidence is that the prosecution has established the following circumstances.
(1) The accused and the deceased, who was wearing gold ornaments, M.Os. 1 to 4 on her person, were last seen together near a particular place viz. Moota Kaluva;
(2) On the very night of the disappearance of the deceased, the accused gave one of the jewels of the deceased (M.O. 1) to his sister and pledged with and sold to others the gold jewels, M.Os. 2, 3(a) and 4; and
(3) The dead body was found on the fifth day near a place where the deceased and the accused were last seen together and post-mortem examination disclosed that the deceased died of asphyxia due to drowning.
26. It is on the basis of the above three circumstances that the learned trial Judge convicted the accused of both the offenses of murder and theft. It should be remembered that, while appreciating circumstantial evidence, the mind is apt to take pleasure in adapting circumstances to one another and even in straining them a little so as to over-reach and supply some link which is wanting. It is often said that witnesses may lie while circumstances do not, but there is an inherent tendency in the circumstances to mislead and induce the mind to make conjectures and guesses which may lead to dangerous conclusions. In evaluating circumstances, the Court must see whether the circumstances proved by the prosecution lead to the sole and certain inference of the accused's guilt, whether they are inconsistent with the innocence of the accused and whether the inference from the totality of the circumstances precludes all reasonable possibility of the accused being innocent. In any case, where an accused is to be convicted of murder, the first and foremost factor to be established is that the deceased was the victim of murder. In the instant case, there is no direct evidence of the circumstance under which the deceased met with her death. The prosecution seeks to establish murder by the facts that one evening the deceased was found hale and healthy near the scene of occurrence and a few days thereafter, her dead body was found at the scene of occurrence and post-mortem examination disclosed that she died of asphyxia due to drowning. These facts, in our considered opinion, are not sufficient to establish beyond doubt that the deceased was the victim of a murder. A small link is missing and the learned trial Judge unfortunately supplied that missing link evidently on account of the suspicion excited in his mind by the other circumstances. The medical evidence does not disclose any injuries or traces of violence on the dead body. What all the doctor says is that the death of the deceased is the result of asphyxia due to drowning. Death by asphyxia due to drowning may be the result of accidental drowning, suicidal drowning or homicidal drowning. There is not even a fraction or farthing of evidence in support of anyone of the three possible inferences. It cannot be said with any degree of certainty that in the circumstances of the case, the deceased insisted on the accused not to marry P.W. 10's daughter and on the accused's first refusal, she committed suicide. It is also not unlikely that the deceased went to Moota Kaluva for some personal reason while the accused was in the nearby field and slipped in the Kaluva. It is equally possible that the accused himself threw the deceased into the water and was responsible for the drowning which resulted in the asphyxia. All these are possibilities and the circumstances established by the prosecution do not preclude the other two possibilities of the accused being not responsible for the death. It is not improbable that, after the death of the deceased due to accident of suicide, the accused removed the jewels from the dead body and thus came to be possessed of M.Os. 1 to 4, though it may also be possible that he murdered the deceased and got M.Os. 1 to 4. The most crucial link of murder is not proved in this case and so the accused cannot be convicted of murder punishable under S. 302, I.P.C. His conviction under S. 302, I.P.C. recorded by the trial Court and the sentence of life imprisonment awarded to him under this count have to be set aside and they are accordingly set aside. His conviction under Section 379, I.P.C. cannot be said to be incorrect. We, however, consider it desirable to alter it into one under Section 379 or 404, I.P.C. and however maintain the same sentence of one year rigorous imprisonment awarded to him by the trial Court.
27. In the result, the appeal is partly allowed as indicated above.
28. Order accordingly.