Siadat Ali Kuan J.
1. This is a confirmation case. The Sessoins Judge, Hyderabad and Secunderabad, by judgment dated 31-7-1953, had convicted and sentenced the accused, Abdul Hafeez Khan, to death for the murder of one, Khulsum Bi, aged 5 and has. forwarded the file for confirmation. The accused has also appealed. Tho confirmation case is No, 483, register No. 6 of the same year. We have heard the arguments of the learned advocate, Shri Vasudeva Pillai, for the appellant and that of the learned Senior Government Advocate, Shri Mohd. Mirza for the State.
2. The facts alleged by the prosecution are that on 14-2-1953 between 5-6 p. m., the accused carried away the tiny girl, Khulsum Bi, who was wearing some cheap gold and silver ornaments from Imambada locality, Yakutpura, removed the ornaments and threw the girl into a well; and that, later on, the same evening he sold the ornaments to one Sagarmal, P. W. 8 for Rs. 13. The First Information Report was issued on 15-12-1953 and reached the court on the 16th. The inquest was also held on the 15th and the inquest report forwarded to the court on the 10th. The prosecution has adduced 14 witnesses.
3. P. W. 1 is Mehboob Khan, the father of the deceased. P. W. 2 is Rashiduddin, the panch of the recovery of the ornaments. P. W. 3 Mohd. Ali is the panch of the inquest report. P. W. 4 Jehangir Khan is the uncle and the adoptive father of the deceased and the first person to lay information to the Police that the girl was missing. P. W. 5 is Dr. Bhusan Rao who did the postmortem examination and who has deposed that death was due to drowning.
P. W. 6 is Meeran Sheriff and P. W. 7 Yasin Bi, his wife. Both those witnesses have deposed that they witnessed the accused carrying the girl at about the time of occurrence. P. W. 8 Sagarmal and P. W. 12 Ganshamdas are sowcars to whom it is said the ornaments were sold and from whose possession they were recovered at the instance of the accused. P. W. 9 Vazir Bi is the woman who sells 'murukuls'.
She has deposed that she witnessed the accused carrying the girl and for whom she purchased a 'murkul'. P. W. 10 HaJizur Rahman is the photographer who has taken a photo of the corpse of the child. P. W. .1.1 is Ilussain Baig who has deposed that the accused slept with him in the night between 14th and 15th February. P. W. 13 Amina Bi is the mother of the deceased and P. W. 14 Sadhashiv is the Investigating Officer.
4. The learned advocate for the appellant argued at length and ably. He pointed out that the whole case rests on circumstantial evidence; that the witnesses, Meeran Sheriff and Yasin Bi, cannot be relied on as there are many discrepancies in their depositions; that, similarly, Sagarmal and Ganshamdas cannot be relied on in their statements that the accused sold them the ornaments; and that Naganna and Lingamma were important witnesses and the failure of the prosecution to adduce them reflects upon the case.
He adverted to the entirely insufficient grounds on which' the Investigating Officer did not challan Chote Salieb and Hyder Khan. The names of these accused appear in the First Information Re-port, and was for that reason reproduced in the challan also; but the Investigating Officer neither arrested them, nor produced any evidence against them. This should, according to him, be sufficient to create a doubt about the guilt of his client and he should, therefore, be acquitted. Lastly, ho argued that the statements of the accused regarding the discovery of the dead body and the ornaments are inadmissible in evidence.
5-7. His Lordship discussed the evidence regarding the alleged discrepancies and concluded as follows:
All this discussion leads us to the conclusion that the absence of the name of the accused in the diary was due to Jehangir Khan knowing of the connection of the accused with the child after laying the information and was also perhaps due to not recording the information which he states that he later on gave about the accused carrying the child.
8. Regarding the depositions of Sagarmal and Ganshamdas, the learned advocate pointed out that the presence of Ganshamdas at the time of the alleged sale of the ornaments by the accused is not proved as Ganshamdas has admitted in cross-examination that he was not present and the evidence of both of them is unreliable, because the register which they have adduced contained only the name of the accused and no other names.
He argued, that this evidently discredits the witnesses. In our opinion, the entry in the register appears to be an embellishment due to the persuasive powers of the police, but it does not disprove the fact of the sale to them. Both these witnesses have deposed to the sale by the accused and have identified him. They have also handed over the ornaments to the Police when the accused brought them to their shop. The ornaments have been satisfactorily identified by the parents and the pseudo father, Jahangir Khan.
9. There remains the legal point whether the discoveries of the body in the well and the ornaments in the shop of Sagarmal are admissible. The learned advocate has argued that they are not, and he has relied on the cases - 'Public Prosecutor v. Subba Reddy', AIR 1939 Mad 15 (A); - 'Dasu Ram v. State', AIR 1952 Raj 20 (B); - 'In re Periyaswami Thevan', AIR 1950 Mad 714 (C); - 'State v. Shanker Prasad', AIR 1952 All 776 (D); - 'Samad Malik v. State', AIR 1953 J and K J. (E); - 'Amin Chand v. Crown', 48 Cri LJ 522 (Lab) (F); - 'State v. Malladu', 32 Deccan LR 204 (G); - 'State v. Pandarinath', 17 Deccan LR 191 (II).
The words used by the accused, according to P. W. 1 Mahoob Khan and P. W. 3 the panch, about the first mentioned discovery, are that 'he will show where the child is', and, according to P. W. 14, the investigating officer, are that 'he will point out the well where he threw the child'. In our opinion, the statement deposed to by Mah-boob Khan and the paneh is admissible in lull and in the statement deposed to by the investigating oificer the portion that 'lie threw the child' is not admissible and the rest is admissible.
The learned advocate, however, argued that the entire statements in both the cases are inadmissible, lie has relied for this proposition on the cases cited in the margin, but a perusal of them will show that really serials 1 and 2 deal with the point that the learned advocate has mado and the rest arc not relevant to it.
He has argued that as the information regarding the corpse being in the well was given in the first place to the investigating oificer and then to the pauches, it cannot be said that the discovery of the dead body by the pauches was done in pursuance of the information of it given by the accused. This has no doubt been held in the cases cited at serials 1 and 2, viz., 'AIR 1939 Mad 15 (A)', and 'AIR 1952 Raj 20 (B)'.
It should, however, be noted that in both these cases it was held that the information given, to the Police officers in the first instance was admissible. Even if we follow both these cases, it is evident that the statement made by the accused to the investigating officer cannot be excluded. We may, however, mention with great respect, that the finding in these two cases is open to consideration, for, as soon as the investigating officer learns, he lias to .supply evidence of the information furnished by the accused.
Investigation means furnishing of evidence and if for that purpose he calls the panches and thej panches hear it for the first time and then discover the fact, it cannot be said that the fact was) not discovered by the accused. (Sic) Howeverl this may be, even following these cases we have no reason to hold that the evidence of the investigating officer should be excluded. This will show that the accused knew where the corpse is.
Now we have to consider how far the discovery of the ornaments is admissible. The argument of the learned advocate about it is also just the same as in the case of the dead body and our opinion will also be the same. Thus, both these facts show that the accused had not only knpw-ledge but also the possession of the child as well as the ornaments. He has not explained the inferences of the guilt that arise from this knowledge. In the circumstances we are of the opinion that e guilt of the accused is proved beyond reasonably doubt.
10. The chain of circumstantial evidence .against the accused is that the child was last seen in his company. She was wearing some ornaments. She was missing for over 24 hours during which period the accused was also absent from his house. The body of the child and the ornaments she was wearing were discovered at the instance of the accused, the body from the well and the ornaments from Sagarmal, who deposed that the accused sold them to him on the very day of occurrence.
The accused did not explain how he came by the ornaments and how he came to know that the body was in the well nor did ho explain why was he absent from his house. The death of the child was from drowning. The inference of guilt from these facts is evident. The well was more than a mile away from the residence of the child.
The way to it passed through grave-yards which excludes the possibility of the child going there and falling in it from inadvertence. There is no explanation on the record as to why the accused did not sleep in his own house in the night of occurrence and what was he doing during the night and why was he absent till 4 O'clock when he was seen on the Railway bridge and taken to 1 the Police Station-house. In our opinion, taking into consideration all these factors the only inference is that of the guilt of the accused.
The learned advocate pointed out that Chote Saheb and Ilyder Khan were also mentioned as offenders in the First Information Report and in the challan and, therefore, it cannot bo said that the accused alone committed the offence. The challan does not contain the name of Chote Saheb or Hyder Khan and the First Information Report mentions their names simply because the accused has implicated them.
The investigating officer has deposed that in his investigation their complicity was not proved and hence, he did not prosecute them. The learned advocate also adverted to the omission on the part of the prosecution to adduce certain witnesses, viz., Naganna and Lingamma. It appears from the record that Lingamma only deposed that she saw the accused kissing the child and going away.
In our opinion, this does not rebut the evidence of other prosecution witnesses who have deposed that the accused carried the child in his arms. Naganna appears to be a barber and it does not appear that he was in any way connected with the offence. No doubt, it is the duty of the prosecution to adduce all the important witnesses, but if it does not do so, no inference against it can be drawn.
It is a question here whether Lingamma and Naganna were important witnesses. Considering the record carefully we are clearly of the opinion that there is no reasonable doubt about the guilt of the accused. We, therefore, see no reason why we should interfere with the conviction and the sentence of the accused. The sentence is confirmed and the appeal of the accused is dismissed.
Jaganmohan Reddy J.
11. In this case all the points urged on behalf of the accused by the learned Advocate, Shri Vasudeva Pillai, with industry and ability, have been dealt with by my learned brother, Siadat Ali Khan, in his judgment. While I agree with his conclusion, I wish to reserve to myself the liberty to consider and express an opinion in some other case upon the point raised by the learned Advocate for the accused, namely, whether the infor- mation given by the accused to the Police leading to the discovery of a fact and later made to be repeated before the panch witnesses who prove both the information furnished by the accused and the fact discovered thereby, is admissible and/or ought to be given due weight.
In this case the question need not be discussed inasmuch as there is the direct evidence of Sagarmal, P. W. 8, who has deposed that the accused has sold the jewels belonging to the deceased on the same day as the disappearance of the girl. This evidence has been believed by the trial court and I see no reason to disbelieve it or to hold that Sagarmal is deliberately assisting the appellant by telling a falsehood.
12. In the result I agree that the conviction and sentence of death on the accused be confirmed and his appeal dismissed.