1. The Sessions Judge, Karimnagar, has convicted Kasa Boyina Muttiga of Lingapur and Alwala Narasimhulu of Nizamabad under Section 302, Indian Penal Code and sentenced them to death. He has also convicted them under Sections 392 and 457, Indian Penal Code and sentenced them to five years' rigorous imprisonment and 14 years' rigorous imprisonment respectively. The file is before us for confirmation of death sentence. The accused also have filed their appeals against their convictions. This judgment will govern all the three proceedings.
2. The facts, according to the prosecution, story are: that the two accused together with one Kottapalli Narasimhulu (the approver), a Harijan of Narlapur, conspired to murder a wealthy old woman, Gudeti Venku, living alone at a distant village, Lingapur in Karimnagar District. With this object in view, they started from Nizamabad accompanied by Boodiga, P.W. 18, the son of A-l on 27-6-1956.
On the way, Boodiga fell ill and was therefore left alone at Kamarapalli to catch a bus to Lingapur. The three however went on foot and reached Lingapur at 10-30 p. m. changed their clothes and went to the house of the deceased. It is said that they got into the house by scaling the outside wall and opening a hole in the ceiling of the house. The old woman was on a cot in deep slumber in the courtyard. The accused strangled her to death, took jewellery and clothes both from her person and from hidden places in the house.
They went back to the house of A-l with this booty and about an hour thereafter left the village. They were however arrested at Nizamabad on 2nd July with all the stolen property which was with them on their person.
3. The accused denied that they were in any way concerned with the murder of the old lady or that the articles alleged to have been recovered were in fact recovered from them.
4. The prosecution examined eighteen witness including the approver and Boodiga, the son of A-1. The approver resiled from his statement recorded by the committing Magistrate but that was brought on record as the substantive evidence, in the case. The learned Sessions Judge believing the testimony of P.W. 18 which corroborated the resiled statement of the approver in material particulars and also the recovery of the stolen property, held the accused guilty and convicted them as mentioned above.
5. Srimati K. Amareswari appointed to represent the case of the accused Invited our attention to some of the discrepancies in the depositiona of the witnesses and the improbabilities of the case and argued that the accused are not guilty of any offence.
6. That the deceased died Of strangulation on the intervening night of 27th and 28th June, 1956 admits of no doubt. She was found with her neck tied with a cloth and the wrist with a rope when the witnesses saw her the next day at about 5 p. m. Gangoo who made a report to the police patel after seeing her at 2 p. m. deposes to that effect. Similar are the statements of Lachman, P, w. 2, the police patel who saw the deceased after the report is made to him at about 5 p. m. China Narasayya, P.W. 3, the panch of Exhibit P-12 deposes that her neck was tied with a cloth and her writs with a cocoa-nut rope.
The same is the statement of P.W. 9, Abdul Nabi who held the inquest on the dead body. The statement of Bhaskararao, the medical officer who performed the 'post mortem' at 4 p. m, on 29-6-1956 is to the effect that the death was due to asphyxia caused by strangulation. He opines that doath must have occurred one or two days prior to the 'Post mortem' examination. Thus there is ample evidence as to the Corpus Delicti. But the question is whether the accused have committed the said offence.
7. There is no eye-witness in this case. The whole case rests upon circumstantial evidence. The circumstances alleged are that (1) the accused were seen going to the village before the incident and coming back thereafter in suspicious circumstances and (2) that the stolen articles were recovered from their person at Nizamabad and they were identified by the witnesses.
It is not the case of the prosecution that anything belonging to the accused was found at or near the place of occurrence which could directly connect them with the offence. Apart from the testimony of the approver and P, W. 18 of the only important circumstance which inculpates the accused is the recovery of articles belonging to the deceased from their possession. There is also evidence as regards their being seen near the village.
But this does not bear scrutiny. P. W, 4 is the woman who says that she saw the two accused and the approver sitting together on the outskirts of the village Voddad at about 10 a. m. on the day of occurrence but her testimony has been disbelieved for sufficient reasons by the Trial Judge, The next witness P. W, 5 Shaik Nathan, says that he saw with the help of a torch-light the accused and the approver whom he did not know, standing near the farmstead adjacent to the village Bandalingapur at about 10 p. m, in the dark night from a distance of 20 paces.
The circumstances under which he identified the accused are open to grave misgiving. He says he took them as bad characters and came back home just to avoid any trouble. His identification under such circumstances is highly doubtful and his testimony based thereon is not entitled to credit. P, W, 6 is another witness who deposes to have seen the accused a day after the incident going along with the approver towards Kammarapalli at about 6 a. m. in the morning. But his statement does ' not accord with that of the approver, who deposed that they had reached Kammarapalli by 4 a. m. itself.
The witness says the faces of the accused were discernible from a distance of 20 yards and he saw them only from that distance. He further says that but for these three persons he did not see anybody on his way to Kammarapalli. He also says that the next day, rumour was afloat in the village that these three persons were the culprits. He therefore of his own accord went to the police patel on 29-&-1956 and informed him of the same. But the evidence of police patel does not bear him out. Thus the statement of this witness also suffers from the same defect as that of the abovementioned.
8. The only important witnesses in the case seem to be the approver and the son of A-l, Boodiga, P.W. 18. In fact, according to P.W. 15, the Sub-Inspector of Police, the matter concerning the complicity of the accused came to light through Boodiga, P.W. IS who in the morning of the incident imparted all the incriminating information against his father, Muttiga and. also the other accused.
Boodiga is a lad of 17 years and without the least hesitation related the story of conspiracy of the accused, their coming to the village and parting from the place with the booty, saying that they were going to Bombay on the very night. It is indeed unusual that a son should without the least hesitation give out such information involving his father in serious criminal offences which in all probability would take him to gallows.
Muttiga, the father says that his son is a tutored witness and that he has been residing in Bombay since the death of his mother which occurred a year and a half prior to the incident and could not therefore be in Lingapur on the day of occurrence. But his stay in Bombay has not been substantiated by any evidence. The result is that in the absence of any motive for the son to give false evidence against his own father his evidence must be accepted for what is worth. It is unfortunate that the advocate who has been appointed by the trial Judge to defend the accused has failed to discharge his duty sincerely.
There is practically no cross-examination of most of the witnesses with the result that we' feel that the purpose of defence by counsel has not been duly served. We do not help remarking that the trial Judge too did not bestow his full attention in this behalf. Be that what it may, we have only to see whether the evidence oh record is sufficient to bring home the guilt of the accused.
9. According to the story of Boodiga, on one night at about 12'O clock when the two accused and the approver were sleeping near the railway station at Nizamabad, A-2 told the other accused that Venku the deceased had Rs. 5,000/-with her. He does not however say as the approver seems to depose, that the conspiracy had taken place there or that they had planned her murder for the sake of her riches.
According to him, the conspiracy was first hatched when the accused and the approver had reached Lakaram and even at that time their only object was to lay hands on the money and not an attempt on trie life of the deceased. The witness further states that on the night of occurrence the accused an the approver came to his house, changed their wet clothes, went away and returned home with a bundle of clothes, a bag containing gold ornaments and a bagona. At that time he was all alone.
He did not actually see the ornaments for he was in his bed. He could only see 'teega' which was kept on the ground. He further deposes that his father did not pay any amount to him or to his sister who was asleep but only-said that he will go to Bombay. This story does not tally fully with the deposition of the approver before the committing Magistrate. The approver states that he knew Alwala Narasimhulu only two or three months prior to the occurrence. He saw Muttiga for the first time when he came to him with A-2.
He does not belong to their place nor has he the same calling or avocation. Yet it appears that these two accused told him at Nizamabad itself that there is a woman in Bandalalingapur who had property and cash and that after lulling her they would take the property. Evidently this statement does not find corroboration from Boodiga. He also deposes that Boodiga (P.W. 18) along with the other accused went to Bandalalingapur and that on the way Boodiga, fell ill and was there left alone to catch the bus to go to Lingapur.
He gives the entire story as to how they reached Muttiga's house, changed clothes, went to the deceased's house, waited for half an hour on the tiled roof, when the woman having heard the noise got up and threw sand towards the roof and how thereafter they got into the house, strangled the old woman to death and removed the ornaments, clothes, etc., after breaking open the locks and unearthing the secreted ornaments.
It is strange that notwithstanding the old woman was all alone and she had suspected some danger from above the roof for which she even threw sand, she did not cry for help or make ,a noise so that the neighbours might gather. The approver says that they all returned to Muttiga's house where Muttiga paid Rs. 30/- to his daughter and Rs. 10/- to his son. This again is in sharp conflict with the statement of Boodiga.
It does not appear to be quite probable that the accused will take the approver into their confidence though he was almost a stranger to them. The details as stated by him do not fully tally with the deposition of Boodiga as pointed out above. It must further be borne in mind that the approver has resiled from his statement in the Sessions Court. He has deposed that this statement was the product of threats and coercion by the police and as a matter of fact he did not know the accused nor did he know about the incident.
10. According to the provisions of Section 133 of the Evidence Act, indeed the evidence of an accomplice carries much weight and even if it is uncorroborated, a conviction based thereon is not illegal. But this rule of law must, always be read with illustration (b1) to Section 14 of the Evidence Act which is a rule of prudence. A conviction therefore ought not to be based on the testimony of the approver unless it is corroborated in material details not only with regard to the general story narrated by him but also With regard to the corpus delicti and the identity of the accused. It is so even though his testimony does not suffer from inherent defects or improbabilities. It follows that the resiled statement of an accomplice naturally must be subjected to great scrutiny. It was no doubt open to the Sessions Judge to admit in evidence such a resiled statement and treat it as substantive evidence but in order to act upon the same, great caution and care Is highly essential.
Ordinarily the testimony of any witness who resiles from his statements and to whom sanctity of oath holds no charm is worthy of little credit. The testimony of an approver who has resiled from his statement cannot be placed on a higher footing. As a matter of fact, being a tainted witness, his testimony should bear stricter scrutiny. In the instant case, as we have stated above, his retracted statement in certain respects materially differs from the deposition of Boodiga. it is not free from inherent defects. We are not inclined to attach any value to the same. However there still remains on record the testimony of P.W. 18.
The trial Judge has believed this witness. There is no sufficient ground to believe that he will give false evidence even against his father. Besides his testimony, there is evidence with, regard to recovery of property. It is contended that the ornaments and the articles belonging to the deceased were recovered from the possession of the accused, shortly after the incident. P.W. 15, the Sub-Inspector deposes that on get- ting the information from Boodiga he went to Nizamabad, found Muttiga near the railway bridge, searched him and from his pockets M.Os. 2 to 8 were recovered and a panchanama was also prepared which is Exhibit P-8.
Similarly from A-2 he recovered M. Os. 1 and 9 to 11 in the hotel of Chennayya and a panchanama was also prepared therefor which is Exhibit P-9. P.W. 16 Govindachari is the pinch who deposes about both the panchanamas. Chinnayya, the hotel-keeper, deposes about the ornaments recovered from A-2 under .Exhibit P-9. It is significant that a red cotton saree and a bed sheet were recovered from the accused No. 1 and also from A-2, besides the gold and silver ornaments.
Of the ornaments recovered, one gold teega weighing 3 tolas bears the name of G, Venku engraved thereon and this was found in possession of A-l and a similar teega of similar description was found with A-2 as well. The ornaments recovered have been identified by Lakshmi Bai, P.W. 10, the daughter-in-law of the deceased and also Buohi, P.W. 11, who it is said happened to see her wearing or using those ornaments very often. The washerwoman, P.W. 7, Or. Gangi, identifies the clothes M. Os. 6, 7, 10, 11, 14 to 17 and 23.
It is significant that some of these ornaments were seen on the person of the deceased even on the day of occurrence. P. W, 11 has deposed about it. It is argued that though it may be usual that the ornaments obtained by criminal means instead ox being buried or otherwise being disposed of may be as well kept in one's own pocket or round his waist for even then they will be hidden, from the public view so as to escape detection but the fact that the accused- used to carry with them the saree and the bed sheet which would clearly establish their guilt is rather unusual.
No doubt that is unusual but the recovery vouchsafed by the witnesses of the place does not become doubtful on that account. The depositions of the witnesses are clear in this regard. There is nothing to suggest that these witnesses have any grudge against the accused or any other motive to speak falsehood. At least that is not elicited from the cross-examination. We do not feel any reason to wholly disbelieve them. It is argued that in the report given to the police patel, Gangu has not made any reference to theft and hence the story of theft is an afterthought.
It must be remembered that the report by itself Is not a substantive evidence and if Gangu was to be contradicted that document should have been put to her. It appears from the pancha-nama Exhibit P-12 and the inquest report and also the evidence of the police patel and others that not only murder was committed but there were visible signs of theft having been committed. The ground was dug, the boxes were broken open and the jewels on the person were missing.
There can be no doubt that there was theft and that the ornaments recovered from the possession of the accused belonged, to the deceased. It is not however stated that before the search was made by the Sub-Inspector search of his person was made as well so as to remove all doubt as to the ornaments being put in the pocket of A-1. But it is nowhere suggested that these ornaments were put in their pocket. The hotel-keeper and the other witness have clearly stated that the ornaments were recovered from their possession. This recovery evidently was effected on June 2 i. e., four days after the occurrence.
11. Now, when the accused were found in possession of the stolen articles and that possession was recent and exclusive and they did not offer any explanation how they came by them, the question is what should be the presumption against them. The ordinary presumption in law under Section 114 of the Evidence Act is that they are either thieves or receivers of goods knowing them to be stolen.
But it must be remembered that the presumptions mentioned in Section 114 of the Evidence Act are not exhaustive. Presumption for graver offences may also be raised as the circumstances of the case would warrant. It appears from the evidence that these articles were on the person of the deceased and that theft and murder formed the same transaction. The question, therefore, is whether the presumption against the accused would extend to murder. Our attention is drawn to the cases reported in Tulsiram v. State, : AIR1954SC1 ; Sunderlal v. State of Madhya Pradesh : AIR1954SC28 ; Ram Bharoee v State of Uttar Pradesh : AIR1954SC704 ;-and Wasin Khan v. State of Uttar Pradesh, (S) : 1956CriLJ790 .
It has been held in these cases that no hard and fast rule can be laid down as to what inference could be drawn and that it all depends upon the circumstances appearing against the accused in the case. Where the unexplained possession of stolen property is the only circumstance appearing against an accused person, charged with murder and theft, the accused certainly cannot be convicted of murder. It is for the prosecution therefore to establish other circumstances and show further material to justify an inference of a graver offence to the exclusion of a lesser one.
We have therefore to see whether there are any circumstances which raise a presumption of graver offence. It is true no article of the accused was found at the scene of occurrence which may directly connect them with the acts of murder and theft. The cloth round the neck of the deceased or the rope tied to the wrists did not belong to the accused. The earth was dug, but the implement used has not been found at the spot or traced to the accused. Thus this link which could directly connect the accused is missing.
However, it is said that in view of the statement of Boodiga which is further corroborated, by the recovery of ornaments, sari and bed sheet from their possession, the accused beyond doubt are murderers. Some of the ornaments recovered were on the person of the deceased as has been established by the evidence, and these ornaments were recovered from the accused shortly, after murder. Murder and theft indeed appear to be the parts of the same transaction.
We therefore feel that the presumption of graver offence under Ssection 302 and 380, Indian i Penal Code, should be drawn against the accused. Of course, the evidence on record does not} sufficiently establish an offence under Section 457, Indian Penal Code, and so the accused cannot be convicted for the same. We also feel that the accused should not be subjected to the extremo penalty of death. Having regard to the circumstances of the case, ends of justice will be served if the sentence of death is altered into on of life imprisonment.
We, therefore, while upholding the conviction under Section 302, Indian Penal Code, alter the sentence into one of life imprisonment. We further convict both the accused under Section 380, Indian Penal Code instead of Section 392, Indian Penal Code, We direct that both the accused shall undergo sentence of life imprisonment for an offence under Section 302, Indian Penal Code, and a. sentence of five years' rigorous imprisonment under Section 380, Indian Penal Code.
Both sentences to run concurrently. They are however acquitted of the offence under Section 457, Indian Penal Code. The appeals are allowed accordingly Copies of the judgment be mad in the concerned files.