Jaganmohan Reddy, J.
1. The Sessions Judge of East Godavari has convicted Bandi Murugulu alias Mulaganna of Bandarlanka, under Section 302 for the murder of one Juttuga Venkamma at about 6 P.M. on 6-5-1960 in the cocoanut garden of Peri Ramaswami Sarma, P.W. 9 and sentenced him to death subject to the confirmation of the High Court. The accused has also filed, an appeal against his conviction and sentence.
2. The prosecution alleged that the accused and the deceased who were both Harijans had been having illicit intimacy for a considerably long period. They were also working for Peri Ramaswami Sarma, P.W. 9, a landlord of Bandarlanka village. Until about six months prior to the incident the accused was dismissed by the landlord on the complaint of P.W. 2 Bokka Naganna who also worked for the same landlord. The deceased is the wife of P.W. 4 and as we said, according to the prosecution, she had contracted illicit intimacy with the accused which evidently discontinued on the accused being discharged or dismissed by P.W. 9. On the day of the occurrence the accused came to the garden where the deceased was working at about 3 P.M. and talked to her. Thereafter a wordy quarrel ensued which was witnessed by P.W. 3 Chollangi Subbamma who was also working in the same garden, after which the accused left. In the evening after the deceased had broken off from her work she was going to her house and had to pass the accused's house. The accused was waiting for her and apparently met her. Thereafter P.W. 1 Tottaramudi Chandrayya heard cries of the deceased saying 'Baboi', Baboi'. On hearing this he walked briskly to a distance of about ten yards when he saw the accused running away at a distance of fifty yards on his left. He then walked twenty yards still further and saw the deceased lying down on her right at a distance of about 15 feet. As she was lying flat on her back he saw blood on her stomach. On seeing him the deceased said 'Bandi Murugulu has beaten me. Go and inform my husband. Bandi Murugulu has hacked me down Babu. Go and inform my husband.' Accordingly P.W. 1 went and informed P.W. 4. P.W. 4 on getting this information accompanied by his sister-in-law and P.W. 1 went to Bokka Naganna, P.W. 2 who was then milking his buffalo. They informed him that the wife of P.W. 4 was stabbed by the accused and that she was lying down in the garden and that he should accompany them. Accordingly all the four of them proceeded to where the deceased was lying in the cocoanut garden of Peri Rameswara Sarma which was at a distance of about one furlong from the house of P.W. 2. After going there P.W. 2 saw the stab injuries on both sides of the stomach. He then asked the deceased as to who stabbed. She replied that Bandi Murugulu stabbed her. Then they took her on a cot as far as the road and from there on a bullock cart to the Government Hospital at Amalapuram. P.W. 2 further states that he knew the deceased for about ten years, that she was working as a labourer in the lands of Peri Rameswara Sarma, that since the last ten years the accused was having illicit relations with her and because of this the accused was not doing his work properly. The witness had complained to Peri Rameswara Sarma. P.W. 9 his master and on this complaint the accused was dismissed. P.W. 4 the husband also corroborates this evidence -- the evidence relating to P.W. 1 coming and informing him and he and his sister-in-law going to P.W. 2 accompanied by him. He further says that all the four went to the place where the deceased was lying; that P.W. 2 asked the deceased as to who injured her to which the deceased replied that Bandi Murugulu stabbed her.
3. It may be stated that the accused who was seen running away by P.W. 1 went straight to the Police Station at Amalapuram and gave information to P.W. 15, G. Nageswara Rao at 10 P.M., P.W. 15 sent for P.W. 5, S.A. Latiff and Challa Narayana Rao P.W. 6 and reduced the information to writing and got it attested. The thumb impression of the accused was affixed thereto and it was attested by those two witnesses. On receipt of this information P.W. 15 registered a case and issued an F.I.R. Ex. P-21. F.I.R. was also issued to Ambajipet Police Station under whose jurisdiction the murder was committed. P.W. 15 seized the blood-stained dhoti M.O. 1 on the accused. Thereafter the accused led him to the cocoanut garden where there was blood-stained earth. Thereafter he led him to a date tree and showed him in the leaves of the date tree stick and a dagger lying hidden in the leaves of the date tree. The stick is M.O. 4 and the dagger is M.O. 3. These were seized under En. P-4 and the blood-stained earth was seized under Ex. P-3. Both these exhibits were attested by P.W. 5 and others.
4. The deceased was admitted to the hospital and was treated by the doctor, Savitri, P.W. 12. She examined her at 10 P.M. and found on her two injuries:
1. Incised wound 2 1/2' long and 1/4' wide gaping placed horizontally 1' above umbilicus on the right side. Wound penetrating into abdominal cavity. A portion of the transverse colon and omentum protruding through it bleeding,
2. Incised wound 2' long and 1/4' wide gaping placed obliquely on the abdomen at the level of 9th rib. Wound penetrating into abdominal cavity. Transverse colon and omentum protruding through this. Stomach also 2' rent on anterior wall near the lesser curvature.
These were the only two injuries she says she found on the deceased and that they could have been caused by a sharp weapon such as a knife like M.O. 3. These injuries according to her, were grievous in nature. She attended to these injuries. Immediately the deceased was admitted to the hospital she instructed Dr. Seenayya to send intimation to the Magistrate to record the dying declaration of the patient under Ex. P-9. After the Magistrate came he had to wait a little until the deceased recovered from anesthesia. Thereafter ire the presence of the Magistrate, staff nurse and herself, the deceased gave a dying declaration Ex. P-10 which was recorded by the Magistrate P.W. 10. This was at 2 A.M. on 7-5-1960. Two hours thereafter at 4 A.M. the deceased died and intimation of her death, Ex. P-13, was sent under her signature. After the death of the deceased P.W. 12 conducted the post-mortem examination and gave a report Ex. P-16.
5. We may further state that M.O. 3 and M.O. 4 and the deceased's clothes as well as the dhoti of the accused were sent to the Chemical Examiner and the Serologist. The report of Serologist shows that the blood-stained earth, the knife, the dhoti of the accused as well as the sari of the deceased had human blood on them. There was no human blood on the stick M.O. 4,
6. The accused was arrested on the same day when he went to the police station and was remanded. Later, a requisition, Ex. P-11 was sent on 10-5-1960 to get his statement recorded under Section 164. The Magistrate P.W. 11 before whom he was produced, remanded him to the sub-jail. After due warning he gave him time for reflection. Three days thereafter the accused was produced before him and the Magistrate after satisfying himself that the accused was prepared to give a voluntary statement and was not under the influence of the Police or was in any way induced, recorded the statement Ex. P-12(c).
7. The learned Sessions Judge though, he rejected the evidence of the recovery of M.O. 3 and M.O. 4 seized under Ex. P-4 and P-3 respectively, convicted the accused on the evidence of P.W. 1 and the three dying declarations as spoken to by P.Ws. 1, 2 and 4 and the confession of the accused, Ex. P-12. (c). The accused denied having shown M.O. 3 and M.O. 4 and the place where the bloodstained earth was seized in the garden, nor did he admit his going to the police station at Amalapuraram at 10 P.M. on 6-5-1960 or on any other day or of giving any statement in the police station. He said that he was arrested at his house at about 12 midnight. With respect to M.O. 1 the dhoti on which were found blood-stains, his explanation was that it was seized from his person at Ambajipet police station and not at Amalapuram police station. He did not observe if there were blood-stains on it. His children used to sleep with him and they were suffering from itches. He did not know if they caused any blood-stains on his dhoti. He admitted having been produced before P.W. 11. He further stated that the police were sent away, but they remained outside the Court hall, that the Magistrate told him that he was not bound to make the statement, that the statement might be used against him, but he did not tell him that he would nut be given pardon and taken as an approver. He admitted that his statement was not recorded then, but he was sent to the sub-jail where he was kept in a separate cell and no person saw him in the jail during the three days he was there. He stated that the police men used to come and talk to him. They told him to make a confession. Ho dues not know the name of the policeman, but he told him that much only. To a question whether he was produced at 3 P.M. on 13-5-1960 by the sub-jail warder before the Magistrate and whether he gave the confession Ex. P-12 (b) he said that it was true that at 3 P.M. he was produced before the same Magistrate. Having heard Ex. P-12 (b), he said that the Magistrate asked him questions and he gave answers; except that the Magistrate did not ask him if the police had kept him anywhere, he admitted the rest was correct. When Ex. P-12(c) was put to him, he said that he did not make it and it is all false. He stated that P.W. 1 was inimically disposed towards him and that they have been quarrelling regarding the question of water and were not on speaking terms. He further stated that P.W. 1 was threatening to kill him. He says that the son of P.W. 3 and himself were working under Peri Sarma, P.W. 9, that he complained to P.W. 9 against the son of P.W. 3, that he was stealing hay owing to which P.W. 3 has given evidence against him. Except this he has nothing to say against any other witness. He specifically stated that he had no enmity with P.W. 2 or P.W. 4. With respect to P.W. 7 he says that he caught his cattle and put them in a pound and used to reprimand P.W. 8 for her adultery. As far as P.W. 9 is concerned, he says he has no reason to speak against him.
8. Against the accused the following circumstances have been alleged by the prosecution and held proved by the Sessions Judge: (1) illicit intimacy of the deceased with the accused, his dismissal about 5 or 6 months prior to the incident, and the discontinuance of the illicit intimacy and attempt to revive it, which led to the quarrel at about 3 P.M. on the day of the incident; (2) P.W. 1 hearing the cry of the deceased went in that direction and saw the accused running away from 50 yards; (3) the three dying declarations (i) made to P.W. 1, (ii) made to P.W. 2 in the presence of P.Ws. 1 and 4 and the sister-in-law, and (in) made before the Magistrate P.W. 10 and the doctor, P.W. 12 and the staff nurse who is not examined, in the hospital on 7-5-1960, Ex. P-10; (4) the first information report given by the accused to the police and his pointing out the scene of the offence, the dagger and the stick which were recovered from under the date tree near the scene of the offence. The Sessions Judge held these recoveries not to be admissible in evidence; (5) the blood-stains on the dagger and the dhoti of the accused, and (6) the confession of the accused to the Judicial Second Class Magistrate, P. W. 11, on 13-5-1960, Ex. P-12 (c).
9. Learned advocate for the accused contends inter alia, (a) that P.W. 1 was inimically disposed towards the accused and being the first person to see the deceased, he suggested the name of the accused to the deceased, as a result of which she has implicated him in all three dying declarations. He was unable to controvert the second and the third dying declarations, but the whole emphasis has been that P.W. 1 suggested the name of the accused at the first instance and that got fixed in the mind of the deceased. (b) He supports the finding of the Sessions Judge that the information given by the accused and the recovery of the dagger and the stick from under the date-tree is not admissible in evidence, (c) The confession being retracted, it has not been corroborated in material particulars. We shall now examine these contentions in the light of the evidence on record, and first dispose of the second contention, viz., that the information and the recoveries are inadmissible in evidence.
10. The Sessions Judge considered the contention that the information and the recoveries do not fall within the purview of Section 27 of the Evidence Act, inasmuch as the information was given prior to the accused being taken in custody. This contention is accepted after a discussion of the cases in Re Ramaih, 1956 Cri LJ 201 : (AIR 1956 Andhra 56), Durlav Namasudra v. Emperor, 36 Cal WN 373 at p. 377: (AIR 1932 Cal 297 at p. 300), Legal Remembrancer. Bengal v. Lalit Mohan Singh Roy, ILR 49 Cal 167: (AIR 1922 Cat 342), and it was held that when the accused went to the police station he was not accused of any offence and as such the statement by him, Ex. P-1 and the discovery of the scene of the offence and the seizure made of the blood-stained earth, M.O. 2, the dagger M.O. 3, the stick M.O. 4 and the connected mediators reports, Exs. P-3 and P-4, were inadmissible in evidence and should be rejected.
Learned Public Prosecutor on the other hand, contends that the Sessions Judge was not justified in rejecting these recoveries or the information given by the accused, inasmuch as when the information was given, the accused had submitted himself to custody both by word and action as contemplated under Section 46 of Code of Criminal Procedure, and having regad to the submission, the accused would be deemed to be in custody within the meaning of Section 27 of the Evidence Act. He further contends that even apart from Section 27, the information relating to the scene of the occurrence and the place where the dagger and the stick are to be found, excluding the confession, is admissible as information under Section 154, Cri. P. C. as there is nothing in that section which precludes the giving of the information by a person who claims himself to be the assailant. Thirdly, he contends, the leading of the police to the place of the offence and the place where the dagger and stick were found can be taken as conduct within the meaning of Section 8 of the Evidence Act and is admissible.
11. If the statement and the recovery are considered to be made under Section 27 of the Evidence Act, it is true that two conditions are prerequisite for the admissibility of that evidence viz., that the person making the statement is accused of any offence and is also in the custody of a police officer. If either of the two conditions is not complied with, that statement would fall outside the purview of that section. A Bench of the Andhra High Court in AIR 1956 Andhra 56 considered this question. Chandra Reddy, J. (as he then was), after examining the cases of Queen Empress v. Babulal, ILR 6 All 509 (FB)), Deonandan v. Emperor, AIR 1928 Pat 491; Jalla v. Emperor, AIR 1931 Lah 278; Chetu v. Emperor, AIR 1948 Lah 69 and in re, Kamakshinaidu, AIR 1943 Mad 89, observed at page 58:
'Before the provisions of the Section (Section 27) are attracted, two essential requirements should be satisfied, namely, that the person making the statement is accused of any offence and is also in the custody of a police officer. It is only then that the information leading to the discovery could be received in evidence. If either of the two conditions is not complied with, the statement would fall outside the purview of this section.'
In that case, it may be stated, during the course of the investigation, A-3, the brother of A-1, who had gone to a different village in adoption was arrested and he gave information leading to the discovery of the bones of the deceased Mangamma, the foetus in her womb, some pieces of broken bangles, pieces of cloth forming part of a saree said to have been owned by the deceased and a lock of hair, and this statement given by him leading to the discovery was held to be inadmissible inasmuch as the accused was not at that time charged with any offence, though he was in custody. The admissibility of the evidence relating to the conduct of the accused, apart from his statement under Section 27, was neither urged, nor determined in that case, nor was the question whether the accused was in custody having submitted himself by word or action within the meaning of Section 46, Cri. P. C. was considered. Even so, there are other decisions where the information given by the accused as in this case was considered by several High Courts which held that evidence as admissible. In State v. Mohamad Hussain, : AIR1959Bom534 , the accused person went to the Police Officer, made a statement which showed that an offence has been committed, implicating himself. He accused himself and though he was formally not arrested, it was held that since he is not free to move wherever he likes after the disclosure of the information to the police, he must be deemed to be in custody of the police. The Bench further held that the words 'information received from a person accused of any offence' in Section 27 cannot be read to mean that he must be an accused when he gives the information, but would include a person if he became subsequently an accused person, at the time when that statement is sought to be received in evidence against him. In so far as the statement given by the accused is concerned, the admission of the accused implicating himself, would be hit by Section 25 as it would amount to a confession; but a statement which is not a confession cannot be excluded by the provisions of Section 25; as such where that happens to be made to the police prior to the commencement of the investigation, it cannot possibly be hit by Section 162, Cri. P.C. In so far as the conduct is concerned, the Bench held that in any event it would appear as showing the conduct of the accused subsequent to the death of the deceased.
At para 536, Patel, J. dealing with the admissibility of evidence under Section 21, observed:
'Even assuming however that it will not be permissible to disregard the words of the section or read 'even if' as suggested, then, we are clearly of the view that the case falls within the authority of cases Santokhi fielder V. Emperor, ILR 12 Pal 241: AIR 1933 Pat 149 (SB) and ILR 49 Cal 167: AIR 1922 Cal 342 with the conclusions of which we agree. The ratio of those cases is that where a person goes to a police officer and makes a statement which shows that an offence has been committed, he accuses himself and though he is formally not arrested since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police.'
In Re Mansingh Parama, : AIR1959MP267 where the appellant, after committing homicide went to the police station and made a confessional first information report in which he gave the details of act and the circumstances which led to the same, his intention to submit to the police was held to be evident from his conduct and that therefore he must be deemed to be in the custody of the police officer, the moment he mentioned his having caused the death and that the information contained in the first information report is, therefore admissible under Section 27 of the Evidence Act. Shrivastava, J. (Single Judge) further held that for the purpose of Section 27, the word 'custody' does not necessarily mean detention or confinement and that submission to custody by any action or by words is also custody within the meaning of that section. To a similar effect is toe judgment where a Bench of the Madras High Court held in Ramachandra, In Re, 1960-1 Mad LJ 112: (AIR 1960 Mad 191) that the spirit of the language employed in Section 27 of the Evidence Act appears to imply that where a person submits himself to the custody of a police officer with the consciousness that temporarily at least he is in such custody or under such control whether formally authorised or not, the information given by him to such officer leading to the discovery of a relevant fact may be proved within the scope of that Section.
Anantanarayana, J. observed at page 117 (of Mad LJ): (at p. 194 of AIR) as follows:
'To limit the meaning of the expression further, by imposing conditions as to the time of arrest, the existence or absence of a formal magisterial order authorising police custody or interrogation, etc. does not seem to be justified either by the context or by inherent feature of the scheme of sections 25 and 26, to which Section 27 clearly constitutes a proviso or exception.'
After this judgment was prepared an unreported judgment of the Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya, Criminal Appeal No. 1 of 1960 pronounced on 6th May) 1960: (AIR 1960 SC (125) came to our notice, where a Bench of five Judges in which the Attorney General for India has intervened, dealt with this aspect of the matter. The two observations of the majority Judges, pronounced by Shah, J. pertaining to the question under consideration are as follows:
'When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the 'custody' of the police officer within the meaning of Section 27 of the Indian Evidence Act.' Again at another place it is said thus:
'The expression 'accused of any offence' is descriptive of the person against, whom evidence relating to information alleged to be given by him is made provable by Section 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.'
12. Subbarao, J., who gave a dissenting judgment said that there are two views on the question of submission under Section 46, Cri. P.C. and that it is not possible to state as a proposition of law what words or what kind of action bring about submission to custody, which can only be decided on the facts of each case. He further observed , that it may depend upon the nature of the information, the circumstances under, the manner in and the object for, which it is made, the attitude of the police officer concerned and such other facts, and it is not, therefore, possible to predicate that every confession of guilt or statement made to a police automatically brings him into his custody. Having regard to the authoritative observations of their Lordships of the Supreme Court and the view we have taken also on the other case law, it would appear that the accused surrendered himself to custody within the meaning of Section 46, Cri. P.C. and that his statement is admissible under Section 27 of the Evidence Act. Even otherwise, inasmuch as we consider that the conduct of the accused immediately after the death of the deceased is relevant under Section 8 of the Evidence Act, that conduct is admissible. The information given by the accused even considered under Section 154, Cri. P.C. is not a substantive piece of evidence and cannot be used as corroboration or contradiction as the accused is not a witness against himself to be used as such. What is admissible under Section 8 of the Evidence Act is the conduct of the accused and the statement which affected or influenced that conduct. The admissible portion of Ex. P-1 is merely the statement, 'I shall show the place where Venkamma fell and the date tree where Kaizar and stick were kept.'
13. The recoveries made by the police of the kaizar (dagger) M.O. 3, and the stick M.O. 4, and the place of the incident from where the bloodstained earth M.O. 2 was seized under Exs. P-3 and P-4 as spoken to by P.Ws. 5, and 6 cannot be held to be inadmissible. Even if the statement Ex. P-1 is considered to be the information which set the police in motion, the fact of the seizure of these M.Os. cannot be doubted and cannot be held inadmissible. The seizure of the dhoti from the accused under the mediators' report Ex. P-2, as spoken to by P.Ws. 5 and 6, cannot also be doubted. These M.Os. were sent to the Chemical Examiner and Serologist who in their reports, Exs. P-19 and P-20 have stated that they found human blood on M.O. 1, the dhoti, the dagger M.O. 3, and the blood-stained earth M.O. 2 and on the saree cuttings. These conclusively show that the accused stabbed at the place where the bloodstained earth was found and that M.O. 3 and M.O. 4, the dagger and the stick were found under a date-tree near the scene of the incident. The accused explains the blood-stains on his dhoti as those caused by the itching wounds of his children who slept with him. Whether that explanation is found to be satisfactory or not would depend upon the other credible evidence in the case connecting the accused with the crime. The mere fact that some blood-stains were found on the dhoti by itself will not be sufficient.
(After discussing evidence (Paras 14 to 16) His Lordship held:) The testimony of P.Ws. 1 to 4, 10 and 12 amply bears out the prosecution case and proves beyond doubt that the accused was incensed by the deceased refusing to come out with him. He waited for her return, stabbed her and ran away.
17. The confession of the accused lends further assurance to this conclusion. Though Ex. P-12 (c) was retracted, we have no doubt as to its voluntary nature. The accused had nearly three days to cogitate and reflect as spoken to by P.W. 11. He was in proper custody, having been remanded to judicial custody and made the statement with the full realisation of the consequences. He was evidently in a remorseful mood and wanted to unburden his mind. In that confession, he stated as follows:
'I belong to Bandarlanka. There is illicit intimacy since 10 years between myself and the deceased Venkamma. Previously we both together used to work in the field of Sarma Garu. I stopped working under Sarma Garu two months back. Day before yesterday i.e., Friday morning Venkamma was going to work under Sarma Garu. When I am going to work we met on the way. Venkamma asked me to stop work in the afternoon and to go to the place where she was working. In the afternoon accordingly I went to the place where that woman was working. She abused me saying, you having stopped talking to me since two months, have come today soon after I asked to come. I said, is there justification to abuse having asked to come. She said I shall abuse according to my will, if it is agreeable come, if not go away. Having become angry I came away. Again in the evening I have waited on the way by the time of her coming after work. She came. I asked, is it good to abuse having asked me to come for prostitution. She said, not only absuing, but see what I am going to do. I beat with a stick saying, what is it you are going to do. She fell down. Then with a knife I stabbed twice on the stomach. While (she was) crying I ran away having taken the stick and the knife. Having thrown the stick and the knife in a date tree beside Kowsika went to the police station at Amalapuram and informed that I stabbed a person. They arrested me. They asked. I said I have thrown the knife and shall show if followed. Police people have followed. I have shown the place where I have thrown. They have taken the stick and the knife. I have also shown the place where I beat the person. Having brought me they arrested. I do not know that Venkamma is dead.' This confession would show that he gave two stab wounds on the stomach and that while she was crying he ran away, that he threw the knife and stick behind the date tree and went to Amalapuram Police station and stated that he stabbed a person. They arrested him and they asked him and he offered to show the place if they followed him, that he also showed them the place where he had thrown the knife and stick, and that the same were seized. The version of the accused, though corroborated by the wounds in the stomach and the recovery of the knife and the stick, does not bear out that he had first hit the deceased with a stick and then stabbed, as the doctor does not say that there were any other wounds than the stab wounds. This variation in the description, however does not affect his confession. In In re, Bangaru Reddi, 1940 Mad WN 543 where a similar variation was noticed, Burn, J. observed:
'The mere fact that he has given a wrong or an incomplete description of the way in which he brought about the woman's death is not a reason for finding him not guilty.'
18. On a careful and anxious scrutiny of the evidence we agree with the finding of the learned Sessions Judge that it is the accused who gave the two fatal wounds to the deceased which caused her death, without any sudden, grave or immediate provocation, merely because the deceased refused to accede to his invitation for an illicit intimacy. He planned the murder lying in wait for her with the dagger, having a blade of nearly 6 inches, and committed the murder. In these circumstances, where there are no mitigating circumstances, we do not feel justified in interfering with the discretion of the learned Sessions Judge in awarding a sentence of death.
19. We accordingly confirm the conviction and sentence of death and dismiss the appeal of the accused.