Basi Reddy, J.
1. ON the night of the 25th-26th April 1958, a young woman by name, Er]a Venkatasubbamma, was stabbed to death while she was sleeping under a 'pandili' in front of her hut at Besthapalli, hamlet of the village of Chinnamandem. In connection with that incident, one Repana Naganna alias Nagulu was tried by the learned Additional Sessions Judge of Cuddapah on a charge of murder, convicted and sentenced to death. The learned Judge submitted the proceedings to the High Court under Section 374 Cr.P.C. for confirmation of the sentence of death, and the accused sent an appeal from jail against his conviction and sentence.
2. The Referred Trial and the connected Criminal Appeal were heard by a Division Bench composed of Krishna Rao and Sanjeeva Row Nayudu JJ. As there was a difference of opinion between them, the case has been laid before me under Sections 378 and 429 Cr.P.C.
(The judgments of both the learned judges proceed purely on appreciation of evidence, Krishna Rao J. thinking that the evidence was doubtful and that the benefit of doubt mast bo given to the accused and Sanjeeva Row Nayudu J. taking the opposite view and being for confirmation of the conviction and sentence. In this judgment the third judge Hasi Reddy J. takes the view of Krishna Rao J. In the course of the judgment while discussing the evidence, Basi Reddy J. observed as follows):
3. The fact that a number of witnesses bear false testimony to a given fact is of no consequence. That evidence is to be weighed and not counted, is axiomatic. Where the evidence of witnesses is not convincing, it would be a fruitless task to search for the motives which might have actuated them to come forward and give such evidence. In the present case it may be suspicion: it may be moral certainty; or it may be something worse. In this connection the observations of Spens C.J., delivering the judgment of the Federal Court in Piare Dusadh v. Emperor, 1944 Mad WN Cr. 1 at p. 18 : (AIR 1944 FC 1 at p. 17), are apposite :
'The gist, of the' learned High Court Judge's finding on the whole case is contained in the observation that there was really no explanation why anybody would have invented a false case against the appellants. This is not in our opinion a justifiable point of view to adopt in a case like the present where the prosecution evidence was found to be largely false and riddled with defects and contradictions. The prosecution having failed completely to establish the guilt of the appellants by good and reliable evidence, it was not for the appellants to explain why their names had been mentioned by the prosecution witnesses as persons who had participated in the riot.'
(After further discussing evidence, His Lordship proceeded.)
4. I am accordingly of the view that the prosecution case is beset with doubts and difficulties, the benefit of which must necessarily go to the accused.
5. I should, however, like to add that I have reached this conclusion on a careful consideration of the pros and cons of the case, and have not allowed myself to he influenced in the least by the theory propounded by some learned Judges that in dealing with a reference under Section 378 or Section 429 of the Code of Criminal Procedure, the third Judge should 'as a matter of judicial etiquette' lean in favour of the acquitting Judge and! should, as a rule, uphold the Judgment of acquittal. With the utmost respect to (those learned Judges, I am unable to subscribe to that view.
In my judgment, no question of judicial etiquette enters into a matter like this which is governed by statutory provisions. When a case is referred to a third Judge under Section 378 or 429, Criminal Procedure Code, he should bring his independent judgment to bear on the case after giving due weight to the views of both the differing Judges, He may convict or he may acquit there is no fetter on his judgment. This, in my view, is the correct position, since the interests of justice require as much that the guilty should he punished as that the innocent should be acquitted.
If, on the other hand, the opinion of the acquitting Judge should always, or nearly always, prevail, the reference to a third Judge would become an idle formality, and the provisions of Ss. 378 and 429, Criminal Procedure Code, would be rendered otiose. In prescribing the procedure contained in those sections for resolving differences of opinion between Judges, the Legislature would appear to have been aiming more at finality than at that will-o'-the-wisp of infallibility.
6. In the result, I am of opinion that the appeal preferred by the accused should be allowed, and he should be acquitted and set at liberty.
7. This case coming on for final hearing consequent upon the opinion expressed by the Hon'ble Mr. Justice Basi Reddy, upon perusing the opinion, the Court delivered the following judgment: