Chandra Reddy, J.
1. The appellant, Jani Shah, was tried by the Sessions Judge, Mahboobnagar, for the murder of a young girl by name Yousuf Bi; he was found guilty under Section 302, Penal Code and was sentenced to death.
2. The facts of the case emerging from the prosecution evidence are as follows:
Yousuf Bi was the daughter of Mahbub Shah. She was living with her stepgrandmother, P.W. 9. On the 5th of August, 1956, she was found going into the house of the appellant between S P.m. and 6 p.m. Later in the evening finding that she did not return home, her grandmother, P.W. 5 searched for her in the village but could not find her. As it was night and she could not see properly she returned home. On being informed by one Sayanna, P.W. 4, that the deceased was seen by him in the house of the appellant before sunset, P.W. 5 went to the house of appellant to inquire about her grand-daughter. The appellant denied all knowledge of the movements of the deceased. Next morning coming to know that there was a dead body in the ditch, P.W. 5 went there and found the body of her grand-daughter. She then gave a report to the Police Patel, P. W l stating:My grand-daughter, Yousuf Bi, aged 11 rears, was playing with the other children and had not return home in the night; so a search for her was made; but no traces were found. Today fey the morning within habitation the dead body of Yousuf Bi Is found in a pool. The dead body was taken out of the pool and when myself and her sister saw We found one hole on her throat and the silver kadyalus (anklets) were found missing. It appears that somebody has killed her and taken away the kadyalus.
3. On the basis of this complaint, P.W. 1 prepared his report and despatched it to the Police Station at Narsapur. On receipt of the report P.W. 15 the Sub-Inspector proceeded to the village and started investigation. Inquest was held over the dead body and thereafter it was sent for post-mortem examination.
4. It was alleged that the accused was arrested on 9th August, 1956 and on the statements made by him blood-stained earth, mats, silver anklets and some other ornaments belonging to the deceased were recovered from the house of the appellant. In pursuance of the statement made by the appellant P.W. 7. a Marwadi who was a Gold and Silver Merchant, was traced from whom were recovered the silver ankleta which were pledged with him by the appellant on 6th August, 1956.
5. There are no eye-witnesses to the occurrence. The evidence against the appellant i& purely of a circumstantial character. The prosecution attempted to substantiate the charge against the appellant by proving that the deceased was last found in the company of the appellant, that the appellant was found carrying a, round bag on his shoulders at about 8 p. m. that evening, and that he gave information leading to the discovery of the ornaments worn by the deceased as also the blood-stained earth, mats, a knife and clothes.
6. P.W. 3 deposed that two hours before the sunset one day he saw the deceased getting into the house of the appellant. P.W. 4 stated that when he was passing in front of the houser of the appellant he saw the deceased picking out lice from the hair of the accused. It is also in; evidence that when P.Ws. 5 and 6 were searching for the deceased that night, he told them what he had seen.
7. P.W. 8 spoke of the movements of the appellant after night-fall. According to this witness the appellant was seen carrying a rountf bag on his shoulders at about 8 or 9 p.m. that evening. When he asked the appellant as to-what it was, tile latter replied that it was grain. The appellant went by a path leading to a ditchi The witness saw the dead body the next evening.
8. According to P.W. 15, the Sub-Inspector and panch witnesses, after the accused was arrested on the 9th, he made statements which led: to the discovery of blood-stained earth, mats, knife and a silver amulet in his house. On further information furnished by the appellant the silver anklets were recovered from P.W. 7 with whom the appellant had pledged them on the-6th. It also appears from the evidence of the Sub-Inspector, P.W. 15, that the clothes worn by the deceased contained human blood and there were injuries on the person of the accused which must have been caused by the victim in the course of the struggle.
9. The Sessions Judge accepted the prosecution evidence in toto and based the conviction of the appellant under Section 302, Penal Code; thereon.
10. The main question for consideration in this appeal is whether the circumstances relied on, by the prosecution have been satisfactorily proved: as to Justify the conviction of the appellant under Section 302, penal Code. We will first consider the testimony of P.Ws. 3 and 4 On his own. showing, P.W. 3 was examined only three day after the dead body was discovered. His deposition makes it abundantly clear that he came for. ward as a witness only two Or three days after the arrest of the accused.
In the face of this admission, the statement of the Sub-Inspector that he was examined on the 6th cannot be taken at its face value. P, W. 4's testimony is to similar effect. He also admit, teed that his statement was recorded by the fiub-Inspector two or three days after the incident, and by that time the accused was in the police-custody for about two days He tries to improve-the position by asserting that he informed the-search party on the 5th evening as to what he had seen a few hours before.
While this assertion of his gains support from the evidence of P.W. 5 it is rendered Improbable by the report, Exhibit P-l. Had h-really given this information to P.W. 5 suspicion would have attached to the appellant and this would have been embodied in the report Exhibit -P-l. The document makes no reference to it and no suspicion communicated to the police Officer Or any one even at the time of the inquest. For these reasons, we think that the evidence of this witness also came forth three or four days after the dead body was found in the ditch. Thus we re not prepared to regard the testimony of these two witnesses as trustworthy.
11. We have next) to deal with P.W. 8. His evidence has an element of artificiality. It is difficult to conceive at a body being moulded into the shape or a round bag. P W. 14, the doctor is positive that it could not be done. The culprit, whoever it might be, could not have chosen that part of the evening for carrying the dead body to the ditch. Further the statement of this witness is a very belated one since he was examined two or three days after the dead body was discovered. We have, therefore, no hesitation, in discarding his testimony.
12. We will now consider whether the circumstances bearing on the recovery of the thieves, blood-stained earth and mats have been satisfactorily established. In this context, it should be borne in mind that while P.W. 15 had deposed that immediately after the arrest of the appellant on the 9th, the appellant volunteered to point out the blood-stained articles including the triages, there is definite evidence that the appellant was taken into the custody of the police even on the 6th August, 1956,. as spoken to by P.Ws. 1, 3 and 4. The learned Sessions Judge also found that the arrest of the accused was on the 6th.
It follows, that the accused was in the police custody for at least three days before the statement under Section 27, Evidence Act, attributed to him was made. Further more Exhibit P-l reveals that the deceased was wearing only silver .kadiyalu (anklets) before she disappeared from the house. There is not a whisper in the document that the girl had a thieves or other ornaments. How then does it happen that the information alleged to have been given by the accused resulted in the recovery of all those articles.
The alleged discovery of blood-stained earth and mats from the house of the appellant consequent upon the statement made by him is also subject to a similar infirmity. According to P.W. 5 she went to the house of the appellant after she met Sayanna but she does not say-that she had found any blood on the ground of the appellant's house. Further the accused was in custody of P.W. 15 for three days before statement is said to have been made. So this alleged recovery should be viewed with grave suspicion.
13. We shall now dispose of the question relating t0 the seizure of the clothes of the appellant on which human blood was found and to the injuries on his person. Here again we have to observe that the appellant was produced before the doctor only four days after his arrest. There is no explanation as to why this was put off for four days. Instead of accounting for it, the Sub-Inspector pretended that it was only the previous day that he was arrested. We have, on careful scrutiny of the evidence, come to the conclusion that in fact the appellant was taken into the custody of the police on the 6th.
Even otherwise, the accused had given very satisfactory explanation .for the existence of scratches on his person, viz., that he was suffering from itches and for that reason he had to scratch. In the circumstances the presence of the scratches on his body and human blood on his clothes cannot lead to the inference that he had participated la the crime. Alter giving our anxious consideration to the material bearing on the above circumstances called in aid by the prosecution we have arrived at the decision that the prosecution has not satisfactorily established those circumstances. When the evidence against an accused person is of circumstantial nature, allj the links in the chain must be conclusively established by cogent, and unimpeachable evidence.
We find that the evidence in the case does not conform to that standard. The prosecution had not established that the deceased was last seen alive in the company of the accused, that the latter had carried something that night on his shoulders which could only be the dead body of the deceased, that the appellant had given false explanation when confronted by P- W. 8 and that pursuant to his statement under Section 21, Evidence Act, the aforementioned blood-stained articles and the jewels worn by the unfortunate victim before her death were recovered from the house of the appellant.
14. There remains circumstance relating to the recovery of the silver anklets. To prove this, tile prosecution had examined P W. 2 the father of the girl, P.W. 7, the Marwa'di and P.W. 10, the Goldsmith, who is said to have made these anklets. P.W. 7 is the merchant to whom the jewels were either pledged or sold (whatever that may be). His evidence could not be and as a matter of fact was not questioned. The appellant had admitted having borrowed money by pledging these jewels but he claimed that they belonged fo his wife. The question, therefore, is whether the prosecution has satisfactorily established that these articles were these worn by the deceased before her death.
It was specially mentioned, in the first information report that the silver anklets worn by the deceased were stolen. P.W. 2 stated that he got them made some years before the occurrence by P.W. 10 for the girl. P.W. 10 substantially corroborates P.W. 2 despite the discrepancies pointed out by the counsel for the appellant which in our opinion are not of vital nature, we feel that the testimony of these two persons is of an acceptable kind and could safely be acted upon. We are impressed with the truth of the version given by them and we see no reason to disbelieve them; In the circumstances, we reject the explanation of the appellant and find that the silver jewels recovered belonged to the deceased and were on her person before her death.
15. We have next to solve the problem whether this circumstance alone is sufficient to convict the accused under Section 302, Indian Penal Code. In our opinion, the fact that a person was found in possession of property proved to have been in the possession of the deceased at the time of murder does not by itself indicate that that person had committed the murder or participated in it. In the absence of any other circumstance to connect the accused with the offence that solitary fact is not sufficient to stretch the presumption under Section 114(a) of the Evidence Act that the accused came by the articles by committing murder.
It is true that no hard and fast rule can be laid down as to what inference could be drawn from a particular circumstance but broadly speaking the single circumstance relating to the possession of these articles cannot impel a Court to draw the inference that the culprit was guilty under Section 302, Penal Code, As often pointed out circumstantial evidence must be consistent only with the guilt of the accused person and Inexplicable on any other rational hypothesis. Thus it is not safe to Invoke Section 114(a) of the Evidence Act for finding the accused guilty under Section 302, Penal Code, on that circumstance alone.
If this is coupled with some evidence relating to the movements of the accused and the deceased resulting in the inference of the culprit being found with the deceased just before the murder that might warrant conviction under Section 302, Penal Code, In our judgment the possession by the accused of articles belonging to the deceased and found with the latter before her death cannot justify the inference that the accused had -come to possess the jewels by committing murder. Our view gains support from Singaram v. State 1953-2 Mad LJ 526 : A.I.R. 1954 Mad 152 (A), and also from the recent decision of the Supreme Court in Sanwat Khan v. State of Rajasthan, XS) : AIR1956SC54 . It follows, therefore, that the conviction and sentence of the appellant under Section 302, Penal Code, cannot be sustained and should be quashed. But he is found guilty under Section 411, Penal Code.
16. We, therefore, convict the appellant under Section 411, Penal Code and sentence him to three years' rigorous imprisonment.