Chandra Reddy, J.
1. The appellants are accused 1, 2, 4, 5 and 6 They along with 16 others were arraigned before the Sessions Judge, Nellore, on charges of rioting, murder and hurt in respect of an incident that took place on the 27th of July 1954, at about B p. m. in the Harijan quarters of Burlavaripalem : In the course of this rioting one Narasayya was fatally wounded and P. W. 1 had received some minor injuries while A-2 and A-10 also sustained some injuries.
For over a year before the occurrence, there were factions between the Harijans of Burlavaripalem of Gudur Taluk, Nellore District and those of the neighbouring village, Balireddipalem, the leaders of the first party being the 1st and 12th accused and one Subbaramireddy the brother-in-law of P. W. 8, the village Munsif of Burlavaripalem being the leader of the other.
A few Harijan families of Burlavaripalem who had affiliations in the other village refused to join the faction headed by A-l amongst whom was the deceased, P. Ws. 5 and 7. It is alleged that the 1st accused and the 12th accused resented this and tried every means to bring them into their fold by victimising those who were not amenable to their influence, such as the extortion of a promissory note on the 12th of August, 1953, by A-l and A-12 from the deceased. The promissory note was executed in favour of A-l for a sum of 'Rs. 200/- and this did not have the desired effect.
2. It is the prosecution case that on the morning of 27th July, 1954 a number of persons led by A-l and A-12 went to the field of P. W. 7 -and began to uproot the gingili crop thereon. When P. W. 7 and the deceased went to the field as usual and found mischief being committed, they protested. In spite of this, the miscreants proceeded with the destruction of the crop.
P. W. 7 and the deceased returned home and after food they went to the Police station at Kota and reported the matter to P. W. 10 the Station Writer who was then in charge of the station. After this, they both returned home and the de-ceased was sitting on a pial in front of his house. Shortly thereafter, all the accused numbering 21 -came in a body, A-l and A-12 unarmed, A-2 and A-5 armed with pestles, A-7 and A-9 with kathuvas and the rest with sticks.
Seeing this hostile crowd, the deceased and P. W. 1 who also happened to be there went inside the house. A-l instigated the other accused to pull the deceased out of the house and stab him, for reporting against them. Thereupon the 2nd accused entered the house and beat the deceased with a pestle on the back of the head while A-5 struck a blow with a similar weapon on the back of the neck.
On receipt of the injuries the deceased fell down bleeding. Meanwhile A-4 and A-6 also went in and all the four of them dragged the de-ceased to a tamarind tree 17 yards from their house. Excepting A-l and A-12 all the accused kicked the victim and beat him with hands while all the while A-l and A-12 were saying 'kick him'. P. Ws. 1 and 2 the son and wife respectively of the injured man intervened only to be beaten by A-2 and A-5.
Immediately P. W. 1 ran to the house of the Village Munsiff P. W. 8 and told him of what had happened. P. W. 8 wanted a written report. Within 15 minutes, P. W. 1 returned with one got written by a stranger Exhibit P-1. The Village Munsif went to the scene, found the deceased unconscious under the tree, advised P. W, 1 to take Narasayya to a Local Fund Dispensary at Kota. Narasayya was then taken to the hospital by about 7-25 p. m.
Finding his condition serious the doctor sent intimation of it to the police station. On receipt thereof, P. W. 11 (Sub-Inspector of Police) proceeded to the hospital, saw the injured, examined P. Ws. 1 and 2 and the former of them said that it was not necessary for him to make any statement as he had already sent a report through the Village Munsif.
3. Meanwhile P. W. 8 sent reports Exhibits P-11 and P-12 to the Police and the Magistrate based on Exhibit P-1. Exhibit P-11 reached the Police Station about 8-30 p. m. while Exhibit P-12 was received by the Magistrate the next day. At about 9-15 p. m., A-2 and A-10 came to the same station and gave a complaint, Exhibit P-15 with the allegations that these two were attacked by the deceased, P. W. 7 and P. W, 8 and other members of the prosecution party near a field.
The Sub-Inspector of Police (P. W. 11) sent them to the Local Fund Dispensary where P. W. 6 found an incised injury on the back of A-2 and a contusion on the right fore arm of A-10. Narasayya died at about 2-30 a. m. on the 28th. Inquest was held on the body of P. W. 11 at the hospital. Subsequently postrnortem examination was performed by P. W. 6 on the body and it disclosed a lacerated wound size 2 1/2 inches x 2/8 inch and bone deep, on the back and lower parts of the left side of the head, with a swelling of 1 1/2 inches around, situated 2 1/2 inches behind the left ear; and a contusion 4 inches x 2 inches across the back and upper part of the neck with two abrasions of 1/8 inch K 1-1/2 inches long and 2/8 inch apart. In the opinion of the doctor, the victim died due to compression and laceration of the brain as a result of the injuries. He also examined later in the day P. W. 1 and found a compression on his forehead. The usual investigation followed resulting in all the accused being charge-sheeted on various counts.
4. The prosecution relies mainly on the evidence of P. Ws. 1 to 5 to bring home the guilt to the accused. P, W. 1 the son of the deceased, after giving the reasons for the existence of the factions in the village, deposed that at about 5 p, m. the deceased alone returned from Kota where he along with P. W. 7 went to lodge a complaint against the persons who committed mischief earlier in the day in the field. He was sitting on a pial outside the house. All the accused came within five minutes armed with pestles, kathuvas and sticks, A-l and A-12 alone being unarmed.
Seeing this, P. W. 3 Venkatamma pulled the deceased inside the house while the witness's mother also pulled him similarly inside the house. The 1st accused then instigated others to pull out Narasayya and stab him for having gone to the Police Station to report against them all. This was followed by the 2nd accused entering the house and beating the deceased on the back of the head with a pestle while A-5 who also went in gave a blow with a pestle on the back of the deceased's neck. The deceased immediately fell down crying out 'Amma'.
A-4 and A-6 also came in and all the four of them dragged the deceased outside. At that time, the women relatives of the accused's party snatched their weapons, and so having no weapons with them all the accused surrounded the deceased and began to beat him with hands and feet. The witness followed the deceased as he was being dragged outside the house. Accused 1 and 12 who stood at a distance of five yards were asking the other accused to kick the fallen man. This was being witnessed by P Ws. 2 to 5. He and his mother intervened and at the instance of A-l and A-12 they were beaten by accused 2 and 5.
He then ran away to the village and informed the Village Munsif of the attack on his father. The Village Munsif asked him to give a written report. He got Exhibit P. 1 written by a stranger who happened to pass by and gave it to the Village Munsif. The Village Munsif came to the scene. By that time, all the accused had gone away. The deceased was lying unconscious In the street and on the advice of the Village Munsif the injured man was removed to the hospital at Kota by about sunset time. The victim died the same night without recovering consciousness.
5. P. W. 2 the mother of P. W. 1 seeks to corroborate him and it is not necessary to repeat the story given by her.
6. P. W, 3 who went to the house of the deceased to collect the wages that were due to her that evening saw at about 5 p. m. a number of people marching against the house of the deceased, while the deceased was sitting on a pial outside the house. Sensing danger, she pushed him inside the house. Meanwhile, the crowd had reached the house and A-l instigated his followers to enter the house and pull out the deceased and stab him. On this A-2 came in with a pestle and struck the deceased on the back of the head with it Then A-5 came in with another pestle and struck him on the back of the neck.
On receiving A-5's blow, Narasayya fell down on his face and P. W. 2 covered his head with a cloth. After this, accused, 2, 4, 5 and 6 dragged the deceased from inside the house to the tamarind tree outside where the crowd gathered round him, kicked him and heat him with their hands. When P. Ws. 1 and 2 intervened, accused 1 asked the other accused to 'beat them'. Thereupon A-2 beat P. W. 1 with a stick on the forehead which was snatched by P. W. 1 and used for purpose of retaliation. Then P. W. 1 went to the main village and thereafter the accused disappeared. After dark, she (P. W. 3) went to her house.
7. As to what took place outside the house was spoken to by P. W. 4 and her evidence is consistent with that of P. W. 3 on this aspect Of the case. She only saw all the accused in front of the house of the deceased and A-2 and A-5 beating P. Ws. 1 and 2, and A-2 and A-4 to A-6 kicking the deceased and beating him with hands under the tamarind tree.
8. The version given by P. W. 5 accords with that of P. W. 2, The evidence of the other witnesses does not carry the prosecution case very far. It may be necessary to refer to the testimony of P. W. 8 as it plays some part in the determination of the guilt or otherwise of the appellants. It was stated by him that about 6 p. m. on the critical day P. W. 1 went to him and told him about the occurrence,
He wanted a written report and this was brought to him within 15 minutes. He then went to the scene and found the deceased lying unconscious under the tamarind tree. There were injuries on the back of his head and neck. He advised P. W. 1 to remove him to the Kota hospital. Thereafter he sent reports to the police and the Magistrate, Exhibits P- 11 and P-12 respectively. The Police went to the village at noon the next day and seized the Wood-stained earth from a place under the tamarind tree where the deceased had been lying.
9. The plea of almost all the accused was one of denial. A-l added that he was falsely implicated at the instance of his enemies like P. Ws. 7 and 8 some or the communists who had a grouse against him. The promissory note said to have been extorted by him was really executed for consideration.
10. The learned Sessions Judge came to the conclusion that accused 12 to 21 who were nowhere near the scene of occurrence were falsely implicated in the case, that the case against A-3 and A-7 to A-9 was not established by the prosecution, but so far as the appellants are concerned the charges against them were substantiated. He thought that the evidence of P. Ws. 3 and 4 could be relied on as against the appellants and to the extent they corroborated P. Ws. 1, 2 and 5 the evidence of the latter also could be called in aid.
In the result, he convicted A-l, A-4, A-5 and A-6 under Section 147, Indian Penal Code and sentenced A-l to six months' and the rest to four months' rigorous imprisonment; A-2 under Section 148, Indian Penal Code and sentenced him to six months rigorous imprisonment. A-2 and A-l were in addition found guilty under charges Nos. 2 and 3, viz., Sections 302 and 302 read with Section 149 respectively and. sentenced to transportation for life, A-2 was also convicted under Section 323, Indian Penal Code and sentenced to three months' rigorous imprisonment.
11. The point for consideration in this appeal is whether the prosecution has established its case beyond reasonable doubt against the five convicted persons. This in its turn depends upon the credibility of P. Ws. 1 to 5. As already pointed out, the learned Sessions Judge was not inclined to attach any weight to the evidence of P. Ws. 1, 2 and 5 in so far as it was not corroborated by independent and disinterested witnesses. The question for consideration, therefore, is whether P. Ws. 3 and 4 can be safely relied on even as against the appellants.
It may be noted at the outset that these two witnesses like the others have categorically stated that all the accused were present at the scene of occurrence including A-12 to A-21 and all of them kicked the deceased under the tamarind tree after he was dragged to that place. The learned Sessions Judge, as mentioned before found that though A-12 to A-21 were not present at the place of occurrence they were roped in by these witnesses.
This finding of the Sessions Judge seems to be amply justified by the material on record. The Sessions Judge was also not prepared to convict A-3 and A-7 to A-9 on the evidence of these witnesses. In this situation, can these two persons be regarded as witnesses of truth even as against the appellants? It has been repeatedly laid down that when witnesses have deliberately implicated innocent persons or when their evidence is found to be false in regard to material particulars it is not safe to act on the testimony of such witnesses.
Applying this test laid down in numerous decisions, We have to reject the evidence of these two witnesses even as against the appellants.
12. This apart, there are other reasons which induce us to view their evidence with grave suspicion. P. W. 3's version regarding her pushing in the deceased appears rather artificial. If as spoken to by P. W. 2 the deceased was rushing in as soon as he saw a hostile crowd there was no question of P. W. 3 pushing in the deceased. Further, if the story of hers is to be believed, there is no explanation for the non-mention of P. Ws. 3 in Exhibit P-1.
One would expect a reference to the part played by this witness in Exhibit P-1 if she was rally present at the scene and assisted the deceased in getting into the house. In spite of the characterisation of this witness by the Judge as a disinterested and independent witness, we are inclined to think that she has a motive to speak at least against A-1. It has been brought out in evidence that some time before the occurrence the 1st accused objected to her husband cultivating a land belonging to him and that there were ill-feelings between him and her villagers including her husband.
Further, although she is purported to have been examined on the 28th i. e., a day after the offence there are indications that she and other material witnesses were not examined for three or four days after the commission of the offence. This is borne out by Exhibits D-11 and D-12 two of the remand reports sent on the 29th and 31st respectively by P. W. 11, the first with regard to A-2 to A-10 and A-13 and the second concerning A-11, A-14 to A-21.
The Sub-Inspector has not transmitted a copy of his case diary prepared by him. The explanation offered by him for this omission was that it was not usual to send a copy of the entries of the case-diary relating to the crime. We merely characterise it as a lame and unconvincing explanation.
13. Section 167 of the Criminal Procedure Code recites:
(1) Where any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty four hours fixed toy Section 61, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the Police Station or the Police Officer making the investigation if he is not below the rank of Sub-Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate..
It is manifest that the provision relating to the transmission of a copy of the entries in the diary prescribed in Section 172 is mandatory and therefore imperative that every one of the officers answering the description in the section should send along with the remand report a copy of the case-diary which he is bound to keep under Section 172, Criminal Procedure Code. The object of enacting this section is that the entries in the diary afford to the Magistrate information upon which he can decide whether or not the detention of the accused person in custody should be authorised and also to enable him to form an opinion as to whether any further detention is necessary.
In the absence of the entries referred to in that section, it is difficult for the Magistrate to decide whether either the detention was authorised or the further detention is necessary. By not complying with the first requirement, the investigating officers render that part of the section which requires the transmission of entries in the Case-diary otiose. It is really astounding that a Police Officer should offer the explanation that it is not usual to send copies of case-diary in spite of an obligation cast on them by the section.
We are unable to understand how the Magistrates are able to act on the remand reports without the entries. These are very relevant in considering whether a further remand should be granted or not. We hope that the Magistrate acting under Section 167 would insist upon the mandatory provisions of the section being complied with.
14. Coming now to the prosecution case, we have to consider the effect of the failure of the officer concerned to send a copy of the entries in the case-diary. From this omission it may reasonably be inferred that they had not come into existence by that time or at any rate in the shape in which they were on the 2nd of August, 1954. It is unlikely that P. W. 1 would not have thought of transmitting a copy of the entries if the material witnesses were examined by that time and they had given him information consistent with the theory put forward by the prosecution subsequently.
15. In this context we have also to consider another circumstance relating to the preparation of the case-diary. While P. W. 11 asserted that he examined P. Ws. 1 and 2 at the hospital on the fateful night and recorded their statements, and P, Ws. 3 to 5 on the 28th, there are unmistakable signs this statement does not represent the true state of affairs. The learned Sessions Judge has discussed this aspect of the matter in paragraph 22 and reached the conclusion that the case-diary was really prepared only after the 29th July, 1954.
There is abundant material in support of this conclusion and it is unnecessary for us to cover the same ground. Suffice it to say that we are in entire agreement with the Sessions Judge that this witness, P. W. 11, had manipulated the diary so as to suit the exigencies of the case as developed from stage to stage. We also endorse the statement of the learned Judge that his conduct in manipulating it has to be strongly condemned. This, coupled with the factor mentioned earlier, inclines us to think that P. Ws. 3 to 5 were not in contemplation till after 31-7-1954, and it is very doubtful whether these persons were present at the scenes of occurrence as pretended to by them,
16. There is another circumstance which throws doubt on the veracity of these witnesses. It is the case for the prosecution that the deceased was first attacked in the house, then dragged out to a distance of about 20 yards and there again given thrashing under the tamarind tree. Without exception, every one of the witnesses, including P. Ws. 3 to 5, has stuck to this version. This is belied by the very statements of some of the prosecution witnesses. There is a circumstance telling in nature showing the attack having taken place not in the house first and later at the tamarind tree but only near the tamarind tree.
On the 28th morning when P, W. 11 went to the house of the deceased, he did not find any blood stains in the house. It is the prosecution case that there was profuse bleeding from the injury on the head. No doubt an explanation was attempted for blood not being found at the place of the first attack. P. Ws. 1 to 3 said that as soon as the deceased fell down, P. W. 2 covered the injury on the head With a bed-sheet, the suggestion being that it is this that prevented the blood from failing on the floor. We are unable to accept this explanation.
For one thing, even before the cloth was applied, some drops of blood at least must have fallen on the ground. Secondly, the bed-sheet, which is supposed to have been used for this purpose, was not produced before the police, and it is improbable that this would not have been done if really a cloth was used for the purpose. Even assuming for a moment that this explanation could be accepted, there is no explanation for the absence of blood stains on the way to the tamarind tree.
If the theory of dragging is to be believed, there must have a trail of blood from the house to the tamarind tree, P. W. 1 had stated that in the course of the dragging the cloth came off.
17. One fact to be noted in this context is the anxiety of those responsible for the prosecution case to omit every reference to the tamarind tree till We come to Exhibit D-12 which was prepared on the 31st. It is noteworthy that according to Exhibit P-1 and also Exhibit D-11, the first remand report, the deceased is alleged to have been brought out into the street and there belaboured by every one of these accused.
It was only when it was found that they had to explain the presence of blood marks at the tamarind tree that the prosecution thought of it in Exhibit D-12. This implies that the deceased was not really beaten in his house but that the occurrence was near the tamarind tree. This would also show that P. Ws. 3 and 4 are witnesses (Of questionable veracity,
18. We are then left with P. Ws. I, 2 and 5. The lower Court was not prepared to place any reliance on the evidence of these witnesses except when they were corroborated by the so-called disinterested and independent witnesses. Admittedly, these three witnesses are partisans. The criticism offered against the evidence of P. Ws. 3 and 4 applies with equal, if not greater, force to these witnesses also, In addition, there is the admission of P. W. 8 that when P. W. 1 went to him first he said that some Malas beat his father. He did not involve any of the Reddis,
Subsequently he had involved not only accused 1 and 12 but a number of other persons who, according to the learned Sessions Judge, were innocent of the crime.
19. In considering the evidence of P. W. 1 we have to refer to Exhibit P-1, which practically sets out the present prosecution version. But when did this come into existence? While P. Ws. 1 and 8 assert that it was drafted at about 6-15 p. m. by a passer-by, the evidence which is of an acceptable nature and which commended it-self to the learned Sessions Judge is that it was prepared at Kota at about 8 p. m. by D. W. 1 and this was the result of collaboration amongst P. Ws. 1, 8 and one Dhanisetti Sriramulu, a Communist of the place, P. W. 1 playing only a minor part.
Though in the beginning the prosecution was not willing to admit that this document was in the hand-writing of D. W. 1, ultimately they had to concede that the writing was that of D. W. 1, when on a comparison of the writing it was found that it was written by D. W. 1, who had admittedly drafted Exhibits P-9 and P-10 for the prosecution party. It also appears that there was ill-feeling between P. W. 7 and P. W. 8 and Dhanisetti Sriramulu.
As remarked by the learned Sessions Judge; Exhibit P-1 cannot be treated as the first information report as admittedly P. W. 11 had examined P. Ws. 1 and 2 at the hospital, and any information that was furnished to him by either of these two persons is the first information report within the meaning of Section 154 of the Criminal Procedure Code and the subsequent statements are hit by Section 162 of the Criminal Procedure Code. Exhibit P-1 is consequently inadmissible and cannot be used for corroborating P. W. 1.
It is abundantly clear that while at the ear-tier stages only the Malas were thought of as the assailants, after a deliberation amongst the enemies of accused 1 and 12, these two accused came to be included in the list of the culprits.
20. Further, an admission by P. W. 1 throws light on the developments of and improvements of this case at various stages. In the cross-examination, he stated that immediately after the deceased died, Dhanisetti Sriramulu and some Harijans of Kota went about saying in magaphones that accused 1 and accused 12 got this murder committed and so they must be ruined. This implies that these two persons were behind the scenes and had a dastardly act performed by the Harijans of the Place making the latter the cat's paw.
It also shows that till about 8 p, m. accused 1 and 12 were not thought of as the leading members of the unlawful assembly. The learned Sessions Judge has not adverted to these aspects of the matter nor did he consider the preparation of Exhibit P-1 with the help of P. Ws. 7 and 8 and Dhanisetti Sriramulu or the manipulation of the case diary by P. W. 11 in the right perspective. For all these reasons we have reached the conclusion that the prosecution has not put forward a true Version of what has taken place that evening but had given a garbled version.
It appears to us that there was a clash at the tamarind tree between the two rival groups of the Harijans in the course of which both sides received injuries with the unfortunate result so far as the deceased was concerned. They suppressed every fact bearing on their participation in it, magnified the part played by their opponents and dragged in all important persons of the opposite faction. It is true that the presence of injuries on accused 2 and 10 argue their presence at the scene, but the learned Sessions Judge was not prepared to convict the 10th accused on this one circumstance alone.
While we feel that accused 2 must have been present there having regard to the wounds found on him and also in agreement with the learned Sessions Judge that these accused must have been injured in the same transaction, we think it unsafe to convict him of any offence for we do not know the circumstances under which he came to be injured or how the deceased was wounded and by whom. In these circumstances We are constrained to acquit all the appellants as the prosecution has not proved its case beyond reasonable doubt. If any guilty person escapes in this case, it is entirely the making of the prosecution.
21. The appeal is allowed and the appellants are directed to be set at liberty. Their bail bonds, if any, will be cancelled.
22. I agree with the conclusion of my learned brother. I extremely regret that as the whole truth was not spoken to by the prosecution witnesses it has not been possible to separate the truth from falsehood and the real culprits responsible for the murder go scot-free. In the circumstances of the case there is no alternative but to acquit all the appellants.