Basi Reddy, J.
(1) This is an appeal by the state Government against the judgment of the Sessions Case No. 14 of 1962, whereby he acquitted the accused-respondent (Manchanamolu Subba Rao) of the offences of murder and robbery punishable under Ss. 302 and 392, Indian Penal Code, with which he was charged. in support of this appeal by the State Government, it was contended by the learned Public Prosecutor that the learned Sessions Judge has taken an unreasonable view of the evidence in acquitting the accused, with the result that there has been a grave miscarriage of justice.
(2) This is an unfortunate case and is a typical instance of juvenile delinquency. At the time the offence was committed, the accused was aged below 16 and was studying in VIII class in the Mathwada Government Middle School at Warangal. The case of the prosecution was that with a view to rob a classmate of his, Shanker by name, of a watch which the latter was wearing and which he had received as a present from his uncle P. W. 3, accused , who was friendly with Shanker, had on the evening of 8-5-1962, taken him to hotel known as Sivaji Hotel, treated him to a meal of 'biriyani', and had later stabbed him to death with a knife in the premises of the Government Middle School and had taken away the watch from Shanker's wrist.
(3) The facts unfolded by the evidence adduced by the prosecution are as follows:- P. W. 3 (Kodati Laxman) is a resident of Warangal. He is a photographer and has a studio in the station road. The deceased Shanker was the nephew of P. W. 3. Shanker had his father and the material time he was staying in the house of P. W. 3, who was acting as his guardian. It is the evidence of P. W. 3 that on 23-4-1962, that is to say, about 15 days before the occurrence he had purchased a wrist watch (M. O. 1) for Rs. 75/- from the Bombay Stores at Warangal, under receipts Ex. P.2 and had presented the watch to his nephew, Shanker, as reward for the latter's good performance at his examination, which had taken place a few days earlier. According to P. W. 3, form that time onwards, Shanker was wearing the wrist watch constantly. that part of the prosecution case is supported by the evidence of P. W. 11 (Abdul Hussain), the owner of the Bombay Stores and the receipt Ex. P. 2 passed by him P. W. 11 stated that he had sold a wrist watch to P. W. 3 on 23-4-1962 for Rs. 75/- and he identified the watch later as M. O. 1. P. W. 11, but also by hid gumastha. Besides, the receipt shows its price as Rs. 75/- and the watch was guaranteed for three years.
(4) Besides the evidence of these two witnesses, P. W. 4, who was working as an assistance of P. W. 3 in his studio, deposed that he had accompanied P. W. 3 when the latter purchased the wrist watch (M. O. 1) from the Bombay Stores for Rs. 75/- and that Shanker was always wearing the wrist watch (M. O. 1), after it was given to him by his uncle. The witness further spoke to Shanker coming to his studio on 8-5-1962 at 3-30 P. M. and at that point of time, P. W. 4 noticed Shanker wearing the wrist watch (M.O.1). According to P.W. 4, Shanker stayed in the studio till 7 P. M. that evening when he left the studio telling P. W. that he was going out with a friend. In cross-examination P.W. 4 said that when Shanker left the studio at about 7 P. M., he ( the witness) was in the dark room. So he did not see him just at that time. Apparently the implication of this question was that P. W. 4 had not seen the watch (M. O. 1) on the wrist of Shanker when he left the studio at 7 P.M. The witness deposed that Shanker had come to the studio at about 3-30 P.M. and at the time he was wearing the wrist watch. It was not suggested to the witness in cross-examination that Shanker had left the studio and come back later and then left the studio at 7 P. M. It is reasonable to suppose that the watch Which Shanker was wearing at 3-30 P. M. on 8-5-1962 had continued to remain on his wrist till at least he left the studio at 7 P. M. we are referring to this Circumstances because the learned Sessions Judge has made much of what he regards as a gap in the prosecution case with regard to the habitual wearing of the wrist watch by Shanker and in particular, to the supposed lacuna in the evidence as to whether Shanker was wearing the wrist watch on that fateful night.
(5) The next witness, who speaks to a relevant fact touching the movements of the accused and the deceased that night, is P. W. 7 (Akula Buchaiah) a waiter in Sivaji Hotel, Warangal. He knows P. W. 3 as well as his nephew Shanker. According to P. W. 7, on 8-5-1962 the accused and Shanker came together to Sivaji Hotel at about 7 P. M. The accused ordered for two single plates of 'biriyani', which P. W. 7 served. The accused and Shanker ate the food and the accused paid Rs. 1-4-0 for it. Then both of them went away. Next morning P. W. 7 heard that Shanker had been murdered. He was examined by the police four or five days later. In his cross-examination the witness said that Shanker and P. W. 3 were in the habit of coming to his hotel off and on. Although it was Shanker from him that about a thousand persons visit the hotel daily, there is no reason to doubt the witness's evidence that on the evening of 8-5-1962 the accused and the deceased had come to the hotel and had a meal. The witness would naturally remember that visit, because the next day he heard that the boy Shanker had been murdered. That was the last occasion when Shanker was seen alive and it is important to note that at that point of time, he was in the company of the accused .
(6) At 10 P. M. that night P. W. 1 (Kishan Rao), the headmaster of the Mathwada Middle School, went to the school to make arrangements for the stay of a friend of his, who was ill at that time and who had come for treatment in the M. G. M. Hospital, Warangal. The school had been closed for the summer vacation from 24-4-1962 and was due to reopen on 9-6-1962. P. W. 2 (Mohammad Khasim) used to sleep in the school premises at night and keep watch. P. W. 1 had taken the patient in a cart and on reaching the school, he woke up P. W. 2 and asked him to open the gate. P. W. 2 opened the door of the room in which he was sleeping with a view to get to the verandah and open the gate. He found some black and white object lying in the verandah. He cried out and called P. A. 1. Both of them went up to the object and by lighting a match stick, they noticed that the object was a corpse lying in a pool of blood, P. W. 1 went straight to the police station, Mathwada, and gave a report, Ex. P. 1. The time was 10-30 P.M. then. Ex. P.1 was addressed to the Sub Inspector of Police, Mathwada and reads thus.
Petition.To The Sub-Inspector,Mathwada.Sir,
This day I came to the school after 10 P.M . to accommodate for one night in the front portion of the school one of my acquaintance who was sick. I asked Khasim, the school peon to open the door. He opened the front door. Then on going to open the gate and on finding something black and white in the verandah he informed me of the same. I brought a match box and observed in the light of a match stick that some boy was found murdered and lying in a pool of blood. So immediately I am informing you the above facts. So please take action as per law.
Sd/ B. Venkateshwar Rao. Warangal. H. M.Middle school, Mathwada.'
P. W. 15, who was the Sub-Inspector of Mathwada at that time, received Ex. P. 1, issued the first Information Report, sent express reports to his superior officers and deputed two constables to go and guard the scene of the crime. He then transferred the case to the Central Crime Station for investigation.
(7) P. w. 26 ( M. Ramakrishna Reddy ) was the Circle Inspector of Police, Central Crime Station, Warangal, at that time . On receiving the First Information Report in the case, he proceeded to the Middle School, which is about a furlong from the Central crime Station. There he found the dead body of a boy lying in the verandah in a pool of blood. He examined P. Ws. 1 and 2 as also P. Ws. 3 and 4 and some others on the night of 8-5-1962 itself. (It may be mentioned here that at about 11 or 11-30 P. M. that night when P. W. 3 was in his studio the Sub-Inspector went there and asked P. W. 3 to go to the school and take a photograph of the corpse which was found there. P. W. 3 refused saying that he had no flash arrangements. Ten minutes later, he went to his house and asked his wife about Shanker. She said that Shanker had left the house at about 7 P. M. and had not come back. Since Shanker never used to go out at nights without P. W. 3's permission, P. w. 3 got suspicious and went to the school building. There he found a corpse in the verandah. He at once identified it as that of his nephew, Shanker. It was then that he and P. W. 4 were examined by the Circle Inspector , (P. W. 26) Inquest was held the next day and at the inquest report is Ex P. 21 and P. W. 26 sent it to the court on that day itself, i.e. on 9-5-1962. That day at the request of P. w. 26, P w. 9 took photographs of the corpse and of the foot-prints that were found in the verandah of the Middle School. Exs. P. 4 to P.11 are the photographs , while Exs. P.12 to P. 19 are the negatives. After that, P. W. n26 seized M. Os. 8 to 15, shahabad slabs, bearing foot-prints, some with bloodstains on them. On 10-5-1962 he examined P. W. 11 and some other witnesses and sent the corpse for post-mortem examination. On the night when the dead body was found P. W. 3 had noticed that the wrist watch, which Shanker was habitually wearing, was missing from his wrist and P. W. 3 had stated so even at the inquest when he was examined. Later he searched for it in his house and not finding it there, gave a report about it to P. W. 26, the circle Inspector, at 4-20 P. M. on 10-5-1962. The report is Ex. P.3 In that he stated as follows:
'Petition.To The Circle Inspector of Police,Mathwada.Sir,
After seeing the corpse of my boy, there was no watch (wrist-watch) on the corpse. The watch is new. Presuming that he had kept the watch in our house, after expiry of three days of 'soothkam', we searched his boxes and a portion of the house in which he used to keep books, etc., In spite of searching the entire house, watch could not be found. Hence the wrist watch has been stolen from the corpse.
Its bill No. 2312 dated 23-4-62 is appended herewith and submitted.
Details of watch.
Price Rs. 75/- Rolled gold case. Its leather strap is of black colour.
Sd) K. Laxman,
Photographer, station Road, Warangal.'
To this report, he appended the receipt Ex. P. 2. P. W. 26 sent both Exs. P. 3 as well as Ex. P. 2 to the court at once. On 11-5-1962 he requested the Munsif-Magistrate Warangal, to send the case properties to the Chemical Examiner for analysis. On the 12th and 13th P. W. 26 examined some more witnesses. On the 14th at about 12-30 P. M.. the accused was produced before P. W. 26 by his father Narayan, who is a Head constable. It would appear that then the father of the accused had reason to believe that his son was involved in the murder of Shanker. With a commendable sense of duty despite his natural affection to his son, he took the latter and produced him before the Circle Inspector, so that the law may have its course. This Head constable who had previously lost one son and was having only one son must have suffered much mental agony and emotional conflict, but yet he did not allow his personal feelings to stand in the way of his public duty.
(8) There after P. W. 26 continued the investigation. He arrested the accused and interrogated him. The accused gave a statement, Ex, P. 22 admissible portions of which are marked as Exs. P.22 (a), (b), (c) and (d). he then took P. W. 26 and the panchas to Sivaji Hotel and pointed out P. W. 7. The accused then led the police party to the Middle School, and produced a knife from the bushes. M.O. 7 is that knife. It was seized under a panchanama, Ex. P. 23. It is signed by three panchas including P. W. 14 Mohammad Yakub All. The information in consequence of which the discovery was made is marked as Ex. P. 22 (a) and is as follows:
'Folding the knife I threw it in the bushes near the pit.'
It is important to mention here that this knife on analysis by the Chemical Examiner and the Serologist was found to contain stains of human blood.
(9) Thereafter the accused took the police and the panchas to his house and produced the wrist watch (M. O. 1) by taking it out from the tiles in the eaves of the house. The watch was seized under Ex. P24. The portion of the statement which led to the discovery of this watch is Ex. P.22(b), which runs as under:
' I have hidden the watch in the tiles of the house after lifting them'
It is necessary to notice that this watch (M.O.1) was found on analysis by the Chemical Examiner and the Serologist to contain stains of human blood.
(10) P. W. 26 continued the investigation and on 14-5-1962 examined P. Ws. 5 and 6. P. W. 5 (Dacharam Venkat Lakshamamma) is a school mistress and the owner of the house in which the accused and his parents were living as tenants. P. W. 6 is M. K. Narayanaswamy, an Ayurvedic Doctor, who resides in Mandi Bazar in Warangal. (We shall refer to the evidence of P. W. 5 and 6 presently.) On the 15th P. W. 26 took specimens of the foot prints of the accused on stones smeared with goat's blood, with a view to compare them with the foot-prints on the shahabad stones at the scene of the crime.
(11) In his statement, Ex. P. 22, the accused had said as per Ex. P.22(c) : - ' On 7-5-1962 at Secunderabad it costed Rs. 4/- and odd' referring to the purchase of the knife at Hyderabad. On 17-5-1962 P. W 26 went to Hyderabad along with the accused . The accused led him to a shop in Nampally where second-hand articles are sold. The shop belongs to P. W. 8 ( Mohammad Ghouse). P. W. 8 was examined by the Circle Inspector, P. W. 26, We may point out here that according to P. W. S. he has a shop at Nampalli, Hyderabad, dealing in second-hand articles. The accused was known to him and had come to his shop sometime in May 1962 and had bought a knife for Rs. 4-37 nP. The witness identified the knife as M. O. 7. He said that ten days after he had sold the knife, the police had come to his shop with the accused and he was examined on that day. The witness admitted in his cross-examination that he did not maintain any register to show the sales in his shop, He also admitted that there was no special mark on the knife (M. O. 7.), but asserted that he could identify it. We see no reason whatever to discredit the testimony of this witness. the knife is not of the ordinary type and a shopkeeper would have no difficulty in identifying it. More over the knife itself was discovered on information given by the accused from a hedge near the scene of the crime and the knife had human blood on it. Reading the evidence of P. W. 8 along with the statement of the accused and the consequent discovery there can be little doubt that this was the knife which must have been used in the commission of the crime and this was the knife which had been purchased by the accused from P. w. 8 sometime before the occurrence. We are referring to these almost self-evident facts because the learned Sessions Judge has regarded even self-evident facts because the learned Sessions Judge has regarded even self-evident facts as shrouded in suspicion and mystery. We shall refer to this aspect of the case again while discussing the reasoning of the Judge.
(12) After completing the investigation, P. W. 26 filed the preliminary charge-sheet on 29-5-1962 and the final charge sheet on 12-6-1962.
(13) It will be convenient at this stage to refers to the evidence of P. Ws. 5 and 6 , who speak to certain material facts concerning the accused on the night of the occurrence, i.e., 8-5-1962. P. W. 6's evidence should be referred to first. He is an Ayurvedic doctor, who resides at Mandi Bazar in Warangal. he had known the accused well. On. 8-5-1962 at about 10 P. m. the accused went to P. W. 6's house and told P. W. 6 that three fingers of his left hand had got cut by the breaking of a soda water bottle and requested hi m to apply some iodine to the injuries. P. W. 6 had no iodine with him. So he applied some varnish to the injured fingers. At that time P. W. 6 noticed that the clothes of the accused were somewhat wet. After the medicine was applied , the accused went away. In answer to a question by the court the witness said that he did not notice any blood on the clothes of the accused. He saw the wetness of the clothes, but did not see any blood on them. The witness denied that P. w. 3 was a friend of his . On the next morning, he came to know about the murder of Shanker. To question put by the Court he said that he had not told any one about the arrival of the accused before his examination by the Circle inspector.
(14) The importance of the evidence of this witness is that on the night of the occurrence at about 10 P. M. the accused had been seen by P. W. 6 with three cut injuries on the fingers of his left hand.
(15) Then we have evidence of P. W. 5, the school mistress. As already noticed, she had let out a portion of her house to the father of the accused on a monthly rent of Rs. 10/- and she herself was residing in the other portion. She disposed that at about 11 P. M. on the night of 8-5-1962 the accused knocked at the door of the house and his mother opened the door. the accused went in. Then the witness was in the verandah. The mother of the accused asked him to take food. While he was taking his food, his mother asked him as to why there was blood on his clothes and he replied that a soda water bottle had broken and his hand was cut and blood had fallen on his clothes. The witness was overhearing all this conversation and then went inside the other portion of the house where the accused was having his meal and saw blood on the banian which the accused wad wearing. She also noticed that two fingers of the accused's left hand were cut. In her cross-examination she said that she had not hold the police that she was sleeping when the accused came. But she was confronted with her statement, Ex. D.2, wherein she had stated as follows:
I was sleeping on Tuesday night with my grandsons Ramkishen and other two children. At about 11 P.M i.e. Azamjahi Mills Siren blew at the same time, the accused came to his house, had his meals and slept.
It does not follow from what she stated in Ex. D.2 that she was sleeping all the time. Even if she was sleeping before the accused came, there is nothing improbable in her having got up when he knocked at the door and came in. Similarly, another supposed contradiction marked as Ex. D. 3 is no contradiction at all. Nothing has been elicited from this witness to cast any doubt on her veracity. Her evidence shows that on the night of 8-5-1962 at about 10 P. M. the accused had blood-stained clothes on his person and his fingers had cut injuries. The explanation he gave to his mother was the same as the one he had given to the Ayurvedic doctor (P. W. 6), namely that his fingers had got cut by the breaking of a soda water bottle.
(16) We shall now refer to the medical evidence in the case, which is furnished by P. Ws. 20, 21, and 22, besides C. Ws. 1 and 2. P. W. 20, Dr. T. B. G. Tilak, was the doctor who examined the accused and issued the wound certificate, Ex. P31, on 15-5-1962. He found the following five injuries on the accused . They were;
1. Incised wound on the middle phalanx of the left ring finger 1/2' * 1/5' on the ulnar aspect.
2. Incised wound 3/4' * 1/4' on the middle of phalanx of the left middle finger on the volar aspect.
3. Faint mark of abrasion of the volar aspect of the terminal phalanx of the left index finger.
4. Lacerated wound 1/2' * 3/4' on the back of right thumb. Wound was superficial and healing.
5. Superficial lacerated wound 1/5' * 1/5' on the medical aspect of the right thumb, Scab formation present in the wound.
(17) According to this witness injuries Nos. 1 to 3 might have been caused by a sharp weapon like the knife M. O. 7. and injuries Nos. 4 and 5 might have been caused by a blunt weapon. The injuries were 6 to 8 days old. In cross-examination he said that if an injury is caused with glass-pieces, it can cause injuries like injuries Nos. 1 to 3.
(18) P. W. 21, Dr. M. A. Qayyum, was the Assistant medical Officer, Warangal, who conducted the post-mortem on the corpse of Shanker from 4-45 P. M. to 5-45 P. M. on 9-5-1962. He found the following external injuries on the body;
'1. 6 punctured wounds on the right side of chest as follows :
(1) 1/2' * 1' near right nipple.
(2) 1/2' * 1/2' just 1/4' below first injury.
(3) 1/2' * 1' below 2nd injury.
(4) 1/2' * 1' just lateral to 3rd injury.
(5) 1/2' * 1 1/2 just 1' lateral to 4th injury.
(6) 1/2' * 1' just below the 5th injury.
II. Punctured wound 1/2' * 1 1/2' just below 11th right rib.
III. On the left chest front surface he found 2 punctured wounds:
They were : (1) 1/4' * 1/4' near left nipple;
(2) 1/4' * 1' about 3' below the left nipple punctured wounds of the same dimensions of 1/4' round and 1/8: deep, one above, one lateral, one front and one lateral surface of upper part of left arm.
V. Incised wound 1' * 1/4' * 1/8' on left palm near the left index finger.
VI. incised wound 1' 1/8' * 1/8' on the right little finger.'
The internal injuries were as follows : -
(1) Right 7th rib fractured at medial end.
(2) Rupture of liver 3' * 1/4' * 1/4' on the front surface.
(3) Right lung ruptured 1/2' * 1/2' * 1/4' central part in front surface.
(4) Spleen ruptured 1/4' * 1/4' * 1/4' in front surface medial border.
In his opinion, the victim had died of shock as a result of haemorrhage caused by the injuries. The injuries were antemortem and could have been caused by a sharp weapon like M. O. 7 . He found 1/4th pound of undigested rice meal in the stomach and according to him, death might have occurred within two hours of the deceased taking his meal and death must have instantaneous.
(19) Cross-examined by the defence counsel, the witness said that it is possible that wheat and meat might take more time than rice for being digested, because they are harder substances. he added that he could not say when the food taken by the deceased began to digest and added that in three or four hours rice food could be digested . There was no further cross-examination by the defence advocate.
(20) The further examination was doone by the Court and it is necessary to reproduce the questions and answers, which are as follows :
'By Court :- Can round punctured injury be caused with M. O. 7 and if so what is the authority
Ans. I want time to cite the authority . (Time is given till 2-30 P. M.)
Witness recalled and sworn.
A punctured wound means and injury which has an outside mark and depth. Due to elasticity of the skin and due to the weapon twisting after the stab injury is caused with a sharp flat weapon, the punctured wound can be round in shape. The punctured wounds found by me were found in shape at the surface. So I did not mention their length and breadth at the surface. So I did not possible for me to make out whether the weapon was twisted after the punctured injury was caused and whether due to twisting any further damage was caused. For that reason I did not mention in post-mortem report about the damage caused due to twisting. There is nothing on record now to show that the weapon was twisted after stabbing. There is no authority to show that a round punctured wound can be caused with flat sharp weapon without twisting.'
This inquisition by the court was apparently founded upon the description of the nature of the injuries in the post-mortem report issued by P. W. 21 The report is Ex. P. 32. Therein against column 'pertaining to injuries and their description', it was mentioned that the punctured wounds found on the body were round and then the length and depth of the injuries were stated.
(21) The learned Judge followed up his line or enquiry by summoning two witnesses as Court witnesses. C. W. 1. Dr. B. Dharma Rao, was the then Superintendent of the M. G. M. Hospital , Warangal, He disposed as follows with reference to the post mortem report, Ex, P. 32 and the weapon which was alleged to have been used.
'M. O. 7 is a flat one-edged sharp knife. A punctured wound is a wound which creates cavity and has depth in addition to superficial injury. With M. O. 7 a round punctured wound cannot be caused but an oval or elliptical or spindle-shaped wound can be caused. Spindle shape also will be to some extent round. Punctured wound caused with M. O. 7 will have length, breadth; every punctured wound will have length, breadth, and depth. If length and breadth are equal, then it might produce a circular injury. With M. O. 7 if a punctured wound is caused and the knife is twisted when it is in body, it will cause more damage and it can be found out while making post-mortem. A punctured injury caused with M. O. 7 will be semi-circular or rather of convex shape on both the sides and as skin retracts after the knife is taken out, it is possible that the doctor who held post-mortem might have written word round in post-mortem report while giving dimensions of punctured wounds. I have now read the descriptions of the punctured wounds mentioned in Ex. P. 32. '
(22) Thus according to this witness (C. W. 1.), a punctured wound caused by a knife like M. O. 7 would be semi-circular in shape and as the skin retracts when the knife is pulled out, it is possible that the doctor who held the post-mortem might have loosely used the word 'round', whereas if it were described as semi-circular. On the other hand P. W. 1, who had seen the injuries himself conducted the autopsy and issued the post-mortem certificate, described the punctured wounds as round, because they were in that shape on the surface and according to him, if after the stab, the weapon is twisted in the act of stabbing or pulling out, the punctured wound could be roundish in shape.
(23) C. W. 2, Dr. M. K. R. Krishnan, Lecturer in Forensic Medicine, medical college, Warangal, was also examined by the court apparently because it needed more light on the subject. This witness said that M. O. 7 is an edged sharp flat knife and that a punctured wound could be caused with it and that the injury would have length, breadth and depth. He asserted that a round punctured wound cannot be caused with M. O. 7 in the strict sense of the word 'round'. he went on to say that from the injuries mentioned in Ex. P. 32, external injury 1/2' * 1 1/2' just below the 11th rib might correspond to internal injury No. 4 1. e., rupture of spleen 1/4' * 1/4' * 1/4' He proceed to say, using almost the same language as P. W. 21, that 'as the dimensions of this internal injury are equal, I presume that the knife might have been twisted in the case of this injury'. He went on to say that the injury caused with M. O. 7 cannot be round strictly even if the knife is twisted. However, he conceded that if the word 'round' had been put for elliptical, then the injuries as mentioned in Ex. P. 32 could be caused with M. O. 7, otherwise not.
(24) So, according to this witness, if in describing the injuries, the word 'elliptical' had been used, he would have had no quarrel with the post-mortem report.
(25) All this seems to us to be merely quibbling with words and there is really no incongruity or contradiction in the evidence of P. W. 21 on the one hand and that of C. Ws. 1 and 2 on the other. For one thing it was impossible to say how exactly the injuries were caused because the medical witnesses were only giving opinion evidence and not direct evidence. Moreover, there is nothing inherently improbable in the knife, having been twisted in the process of inflicting the punctured wounds, nor is the word 'round' used in the post-mortem report to be taken in its strict etymological sense and not in a general way as including elliptical or oval or spindle-shape. Indeed C. W. 1 conceded that spindle-shape will be to some extent round. Likewise C. W. 2 had to concede that if the word 'round' had been used to describe what was really elliptical, then the punctured wounds could have been caused by stabbing with M. O. 7. It is clear from the evidence of the three medical witnesses that M. O. 7 could have caused the injuries which were found on the body of the deceased. The Sessions Judge, however, has reached a contrary conclusion and we have no difficulty in holding that he has taken an unreasonable view of this part of the case, as indeed of the other aspects of the case also, as we shall presently show.
(26) Here we have to refer to the evidence given by P. W. 23 (P. Narasimhulu) the Foot Print Expert working in the C. I. D. Hyderabad. He had had his training in the Madras C. I. D. and for the last 13 years he has been working in the present department. The stones seized at the scene of the crime by the circle Inspector had been sent to him and some of them with blood-stained foot-prints on them. He compared them with the specimen foot -prints of the accused taken during the investigation and compared the two sets. According to this witness on only one stone out of five stones seized from the scene of occurrence, the foot-print was clear and that was of the left foot. The witness made use of that foot-print only for the purpose of comparison. as the foot-prints on the other four stones were not clear. He compared (M. O. 12.) with the specimen foot-print found on one of the stones (M. O. 20). According to P. W. 23, on comparing the foot-print on M. O. 12 with the foot-print on M. O. 20, he found that they tallied in general size and shape and the shape of pad, the shape of isthmus and the shape of the rear and the top edge of the pad, were similar. He was however, frank enough to say that in his opinion this data was not sufficient to pronounce a definite opinion about the identify of the foot-prints. The report sent by him to the Court Ex. P. 35.
(27) The importance of this witness's evidence lies not so much in its conclusive character because all that the witness was able to say was that one of the foot-prints found at the scene of the crime was similar to the foot-print of the accused taken for the purpose of comparison, but its real significance is of a negative character, viz., that the foot-print found near the scene of the crime was not different from the specimen foot-print of the accused . Only to that extent this circumstances is of some evidentiary value.
(28) When the accused was examined by the committing Magistrate, he pleaded his innocence and averred that on the night of 9-5-1962 he was in his house throughout and did not go anywhere at all. He denied having gone to P. W. 6 (Narayanaswamy) and getting his fingers dressed. Hr further denied giving a statement and producing the knife. He, however, stated that he did not know why the witnesses were giving evidence against him.
(29) In the Sessions Court, the accused was examined at length by the Sessions Judge under S. 342 Cr. P. C. He gave his age as 14 or 15 years. He said that he did not know anything about the purchase of the watch (M. O. 1.) He denied having purchased the knife (M. O. 7) from the shop of P. W. 8 He denied having visited Sivaji Hotel in the company of the deceased on the evening of 8-5-1962 and ordering 'biriyani' . When asked about the injuries on his fingers and the blood on his clothes, he stated as follows : -
'When I went to my house at 11 P. M. there was no blood on my clothes. I was at the house only. That day my fingers were cut. My mother did not ask.'
He added that 'due to the breaking of the soda bottle my fingers were cut.' He further denied having given any statement to the circle Inspector and having produced the knife (M. O. 7) from a hedge in the premises of the Middle School and having produced the watch (M. O. 1) from the eaves of his house. When he was asked about his nail clippings containing stains of human blood, he said that he had itches and ulcers and due to scratching blood might have gone into his nails. He said that he knew nothing about M. Os. 1 and 7 having stains of human blood. When he was asked whether he had enmity with the prosecution witnesses he said as follows : -
'Yes, I have. Due to friendship between Narayanaswamy (P. W. 6) and P. W. 3, he (Narayanaswamy) deposed that he has applied iodine. A dispute took place regarding water between P. W. 5 and ourselves. She has also deposed falsely. Police foisted this false case on me. I do not know anything about others.. .. ......'
(30) After setting out the evidence of the several witnesses examined by the prosecution, the learned Sessions Judge listed the circumstances upon, which the prosecution relied to establish the guilt of the accused . In para 6 of the judgment, that is what he says:-
'1. The accused and the deceased were found together in Sivaji Hotel, Mathwada, on 8-5-1962 at about 7 P. M.
2. On 8-5-1962 at about 10 P. M. injuries were found on the left hand fingers of the accused and there were some blood marks on his clothes.
3. On the nails of the accused sent to the Chemical Examiner, human blood was found.
4. There was some similarity between the foot-prints of the accused obtained during investigation and the foot-prints stained with blood, found on 'shahbad' stones at the scene of the occurrence.
5. The knife with which the fatal injuries were caused to Shanker was purchased by the accused at Hyderabad and it was recovered at his instance from the school compound on 14-5-1962.
6. the wrist-watch M. O. 1, which used to be always on the wrist of the deceased and which was on his wrist at the time at which he was murdered, was recovered at the instance of the accused from his possession from his house.'
The learned Judge then went on to consider the evidence adduced by the prosecution with reference to each of the above circumstances and found that circumstances 1 to 4 had been proved by the prosecution beyond reasonable doubt, but that circumstances 5 and 6 had not been established, and consequently reached the conclusion that the prosecution had failed to prove beyond reasonable doubt that the accused had committed the murder of Shanker.
(31) As we are in agreement with the learned Sessions Judge that circumstances 1 to 4 have been established conclusively, it would suffice if we refer to the learned Judge's findings themselves with regard to these four circumstances.
(32) As regards circumstances No. 1, the learned Judge holds, 'I believe the evidence of P. W. 7 and hold that the accused and the deceased were in Sivaji hotel, Mathwada on 8-5-1962 at 7 P. M., eating 'biriyani'.
(33) As regards circumstances No. 2, the learned Judge finds, 'I find no reason to disbelieve the evidence of P. Ws. 5, 6, and 20. I hold on the basis of their evidence that the fingers of the accused were cut on 8-5-1962 at about 10 P. M. and that there was blood on his clothes.'
(34) As regards circumstances No. 3, the learned Judge says that there was blood in the nails taken from the accused during the course of the investigation, but he had given a plausible explanation that he had itches and boils on his person and blood might have got into his nails as a result of scratching himself.
(35) As regards circumstances No. 4 relating to the foot prints, the learned Judge finds it proved satisfactorily.
(36) Circumstances Nos. 5 and 6, according to prosecution, were the crucial circumstances, because the knife, M. O. 7, had been recovered at the instance of the accused and at a spot in close proximity to where the dead body of Shanker was found with numerous injuries which could have been caused by that knife; and the sixth circumstance related to the discovery of the wrist watch (M. O. 1) and its earlier purchaser, coupled with the highly incriminatory fact that on both these material objects human blood was found.
(37) Dealing with circumstance No. 5 relating to the knife, the trail Judge discarded the evidence of P. W. 8 on the grounds that there was no documentary proof that the accused had purchased the knife from him and that there was no convincing reason how and why P. w. 8 could have remembered the accused because he was not an old acquaintance of his. But, what the learned Judge overlooked was that the accused himself had led the Circle Inspector to the shop of P. W. 8 and pointed out P. W. 8 and the latter was interrogated thereafter. There is nothing inherently improbable in P. W. 8 remembering the person who had purchased the knife and identifying the knife as the one he had sold to the accused . We are, therefore, of the view that the learned Judge was in error in discarding the evidence of P. W. 8 as untrust- worthy.
(38) Equally untenable are the grounds upon which the learned Judge has chosen to jettison the entire prosecution evidence regarding the statement made by the accused to the Investigating Officer and the recovery of the knife by the accused himself from a hedge in the compound of the Middle School, within a short distance from where the murder had taken place. The prosecution sought to prove that the accused had given the statement pertaining to the knife through the evidence of the Investigating Officer, P. W. 26 and the panch witness, P. W. 14 we have already adverted to the evidence of the Investigating Officer P. w. 26 as to how, on 14-5-1962 when the accused was produced before him by the accused 's father, he (P. W. 26) had questioned and recorded the statement which the accused had made, and, thereafter the accused had taken P. W. 26 and the Panchas to the Middle School and produced the knife from a hedge, and the seizure was evidenced by the panchanama, Ex. P. 23. P. W. 14 one of the panchas, who seems to be respectable man and is a cycle shop owner of Mathwada, deposes to the Circle Inspector questioning the accused and the latter giving the statement. P. W. 14 swears that after making the statement, Ex P. 23, the accused took the police party to Sivaji Hotel and pointed out P. W. 7, and thereafter the accused led them to the Middle School and took out a knife from the hedge in the school compound. The hedge from the hedge is 10' or 15' from the spot where the corpse was found. that knife was later sent to the Chemical Examiner and to the serologist and was found to have been stained with human blood. But yet the learned Judge doubts the identify of the knife that was seized, because the knife was not got identified by P. W. 1, the Headmaster. So the Judge goes on to say, 'From his (P. W. 1's) evidence it is not possible to make out that M. O. 7 was the knife which was given by the accused from the hedge'. To say the least, this reasoning is in comprehensible, P. W. 1 was no doubt present when the accused produced the knife from the hedge., but he was not one of the panchas and did not sign the panchanama. He has, however, given positive evidence to the following effect :
'On 14-5-62 I was called to the school by police. On my going to the school police officers and accused came to school. Police asked accused to shoe where he kept the knife. Accused then went to a hedge which was at distance of 10 or 15 feet from the place where the corpse was found and took out a knife from that hedge.'
So that, what emerged from the evidence of P. W. 1 is that the accused did take out a knife from the hedge. The Circle Inspector, P. W. 26 and the panch witness, P. W. 14 both swear that M. O. 7 was the knife that was produced by the accused that day, that was the knife that was sent to the Court and was later transmitted to the Chemical Examiner and the Serologist for analysis. The fact that P. W. 1 was not asked to identify the knife does not render the evidence of P. W. 26 and P. W. 14 false, nor it is at all likely that having recovered a knife at the instance of the accused . some of had thought of substituting M. O. 7 for that knife, smeared it with human blood and them sent it for analysis. The Sessions Judge apparently did not pause to consider the implications of his findings that M. O. 7 had not been established to have been the knife which had been produced by the accused from the hedge. The learned Judge further goes on to say that P. W. 1 is a more reliable witness than the panch, P. W. 14 and therefore, as P. W. 1 was not asked to identify M. O. 7, it was proof enough that he was not willing to say that M. O. 7 was the knife recovered from the school. It is difficult to follow the learned Judge's reasoning. Again, while noting that human blood was indeed found on M. O. 7, nevertheless the learned Judge was assailed by a doubt that it was not proved whose blood it was. he apparently forgot that it was not the accused 's case that his hands had got injured by the knife M. O. 7. The explanation given by the accused was that the injuries on his fingers had been caused by the cuts resulting from the breaking of a soda bottle. Then again the learned Judge goes on to say that the alleged place of recovery of the knife was an open place and anybody could keep anything there to throw the blame on any one, and because the recovery of the knife was made six days after the commission of the offence, the entire story of the recovery of M. O. 7 was open to suspicion. he also relied upon what he thought the effect of the medical evidence was, viz., that M.O. 7 could not have caused the injuries found on the deceased.
In our opinion the entire reasoning is unsound and we have no hesitation in holding that M. O. 7 the blood-stained knife, was recovered at the instances of the accused and on information given by him, and in all human probability, this was the very knife that had been used in the commission of the crime. It is further established by the evidence of P. W. 8, which , in our opinion, is acceptable that the accused had purchased this very knife some time before the occurrence and it must have been in his possession at the time when the offence was committed. This is a very important item of evidence connecting the accused with the crime charged. The learned Sessions Judge has also held that the sixth circumstance had not been satisfactorily proved by the prosecution. That circumstance relates to the recovery of the wrist watch from the possession of the accused . The first ground on which the learned Judge discarded the evidence pertaining to this circumstances is that according to him there is absolutely no evidence that m. O. 1 was on the wrist of Shanker when he left his house at 7 P. M. on 8-5-62. As noticed already P. W. 4 had actually seen the wrist watch on the wrist of the deceased at 3-30 P. M. when the latter left the studio; and there is the evidence of P. W. 4 that the deceased had been habitually wearing that wrist watch for some two weeks before the occurrence. As we have already pointed out, it is altogether unreasonable to suppose that the deceased, who had been wearing that watch always and had been wearing it 3-30 p. m. on that fateful day, was not wearing it that night at the time when he met with his death. The second ground upon which the learned Judge brushed aside the sixth circumstance was that in his view the very purchase of the watch by P. W. 3 from P. W. 11 was doubtful. While the learned Judge was satisfied on the evidence of P. Ws. 3, 4 and 11 that P. W. 3 had purchased a wrist watch on 23-4-62, he had some doubt whether that watch is M. O. 1 and not some other watch. P. W. 3 has sworn that he had bought only one watch and that watch he had presented to his nephew ( the deceased) and his nephew had been wearing it ever since then i. e., from 23-4-62 onwards. That watch was identified both by the seller P. W. 11 as also by the buyer P. W. 3. In these circumstances, for the learned Judge to say that M. O. 1 was not the watch that was purchased, is to allow unreasonable doubt to sway his conclusion. The learned Judge also had some doubts about certain entries made in the inquest report and about the subsequent report, Ex. P. 3 given by P. W. 3 after ascertaining that the watch had not been left in his house by his nephew Shanker. All these in our considered judgment, are doubts which had been conjured by the learned Judge on surmises and conjectures. Then again the learned Judge had doubts about the actual recovery of the watch. The evidence shows that the accused himself led the police and the panchas to his house and from underneath the tiles in the eaves of his house took out the watch. The learned Judge says that it not likely that a person who was greedy enough to commit a murder to have Rs. 75/- worth watch, would have concealed it in such a place where it could not be safely secreted. He further says that the place is such that any one could place the watch in order to throw the blame on the accused. It is difficult to see where exactly a boy like the accused who had committed a murder for the sake of a wrist watch, should have hidden it so as to convince the learned Judge that it had seen secreted. The place in which it was concealed was certainly not visible to one and all and the learned Judge was in error in holding that the watch could have been planted by some one to foist the blame on a school boy like the accused . Further, the learned Judge cast a gratuitous aspersion on the respectability of P. w. 14 in holding that the Investigating Officer should have thought of a more reliable and respectable person than P. W. 14, who, in the learned Judge's view is only a taxi cycle shop owner. He goes on to find,' On the shaky and unreliable evidence adduced by the prosecution, the court cannot hold that M. O. 1 was on the wrist of the deceased at the time of the commission of the offence and that it was recovered from the possession of the accused at his instance. I hold that the sixth circumstances is not proved.' It was unfair on the part of the learned Judge to have characterised P. W. 14 as a not too-respectable witness. Nothing was suggested to this witness in his cross-examination to show that he was either not respectable or that he was untruthful. Unwarranted aspersions like this on witnesses who come forward to assist the Police as panchas in the investigation of a crime, will certainly not encourage persons to do such thankless jobs. We are firmly of the opinion that the learned Judge was altogether unjustified in discarding the evidence of P. W. 14 and that of the Investigating Officer, with regard to the information given by the accused and the factum of recovery of the watch, M. O. 1 It is further to be borne in mind that this watch, M. O. 1 had human blood on it, as reported by the Serologist. The cumulative effect of the evidence pertaining to the wrist watch is that this watch which the deceased Shanker was in the habit of a wearing and which he must have worn on the fateful night, was found in the possession of the accused and the owner of that watch was found murdered. The accused has not given any explanation beyond denying that he had given a statement leading to the discovery of M. O. 1 and further denying that he had taken out M. O. 1 from the eaves of his house.
(39) We are, therefore, clearly of opinion that circumstances 5 and 6 also have been satisfactorily proved by the prosecution. That being so, all the links in the chain of circumstantial evidence have been successfully forged by the prosecution. The result is a completed chain which unmistakably and inexorably fastens the guilt upon the accused . Goaded by greed, occasioned perhaps by perverted fancy, the accused killed a friend just with a view to get at his watch. It is a sad case from every point of view. It is all the more unfortunate that on such cleat and clinching evidence , the Sessions judge should have acquitted the accused . By acquitting him the learned Judge has not done a good turn to the accused. Had the learned Judge convicted the accused on the date he delivered his judgment, which was 30-8-1962, when the accused was below 16 years of age (i.e. 15 years and 5 months, his date of birth being 8-3-1947), the accused would have had the benefit of the children Act, that is to say , of his being sent to a Senior Certified School. Unfortunately, now when the case has come up before us by way of an appeal by the state against the order of acquittal, more than two years have elapsed and this day when we are reversing the order of acquittal and convicting the accused of the offence of murder with which he was charged, the minimum sentence for which is imprisonment for life, the accused is over 16 years of age and consequently cannot have the benefit of the provisions of the Children Act. The only course open to us is to record a conviction for murder, sentence him according to law and make a recommendation to the Government under make a recommendation to the Government under S. 10-A of the Andhra Pradesh Borstal Schools Act.
(40) We are constrained to say that the Sessions Judge has failed to grasp the real meaning and the true import of the salutary principle that in a criminal case the accused is entitled to the benefit of the doubt. To adopt the words of Lord Du Parcq, employed in another connection, ' all that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity. he is never required to close his mind to the truth.' Unfortunately in this case the Sessions Judge has taken a wholly perverse view of the evidence , conjured up all kinds of unreasonable doubts and acquitted the accused. We have, therefore, no option but to allow this appeal, set aside the order of acquittal and convict the accused respondent under section 302 I. P. C. as also under Section 392 I. P. C. for the offences of murder and robbery. We sentence him to suffer imprisonment for life under Section 302 I. P. C. we do not, however, think it necessary to pass a separate sentence under Section 392 I. P. C.
(41) As pointed out already, the age of the accused is now seventeen years, six months and twenty days. As the accused is now over sixteen years of age and is not more than twenty-one years of age, and as the crime itself must have been the outcome of an immature mind, presumable fed on the gangster film and the detective novel, and as the accused belongs, to a respectable family, we consider that the accused might with advantage be detained in a Borstal School. Therefore, acting under rule 172-A of the Criminal Rules of Practice, We recommend to the State Government that they may direct the detention of the accused in a Borstal School for such period as they deem fit. We would suggest detention for a period of five years which, in our opinion, would be the optimum period necessary to reform and rehabilitate this offender.
(42) With this recommendation to the Government, the appeal is allowed.
(43) Appeal allowed.