Chandra Reddy, J.
1. This appeal is directed against the Judgment, of the Sessions Judge, Guntur, convicting the first, accused (1st appellant) under Sections 302 and 201, I.P.C. and sentencing him to transportation, for life and to four years' rigorous imprisonment respectively and the third accused i.e., the second appellant herein under Section 201 and sentencing him to two years' rigorous imprisonment. Three-accused were put up before him for trial for offences under Sections 302, 201 and 323, I, P.C.
The first accused was charged with the murder of his wife under Section 302 and also under Section 201, I.P.C. for causing the disappearance of evidence relating to the offence of murder. The third accused was charged under Section 201 in that he is said to have assisted the first accused to disposed of the body after the commission of murder.
The charge against the second accused was that she voluntarily caused hurt to the deceased Mangamma by pulling her hair. The Sessions Judge acquitted the second accused but found the other two accused guilty of the offences they were charged with.
2. Shortly stated, the case against the accused is this: The deceased was the wife of the-first accused, the 2nd accused being his concubine and the 3rd accused his brother. The deceased and Al were married 20 years back and they got on well till two years before the date in question i.e. 26-5-54 when he contracted illicit intimacy with A-2 a married woman but was abandoned her husband. On 26-5-1954 A-1, was carting manure from his hay-yard. His concubine, the second accused, went into the yard to get some hay. She was prevented by the deceased from doing it and they came to grips.
The deceased caught hold of A-2's hair and refused to release the grip in spite of the persuasion of the first accused. This led him to give a blow with a cart-peg. The deceased who was a pregnant woman fell down dead on the spot. This was witnessed by P. Ws. 4 and 5. The first of them immediately went to the house of P. W. 2., the mother of the deceased to give the information but she was not found there.
Again, in the evening, he appeared at her house and told her of what had happened. The next day, P. W. 2 sent word to her husband, P. W. 1, who was away at another village lit connection with some business. On receiving this, news, he returned to his village and was informed by the wife of their daughter having been, murdered by the first and second accused. On 29-5-1954 at 7 P.M. he laid the first information with the police of Karempudi (Ex. P-1).
3. The contents of this document may beset out in 'extenso,' having regard to the part it plays in the determination of the question about the guilty or otherwise of the accused:
About five months back I went out with my flock of sheep to the village on the east, i.e. to the villages in Tenali Taluk, Day before yesterday, Avula Kotayya, a resident of our village, came to me from Adigoppula, after darkness set in, while I was at Chilurvur, and informed me that my wife, Nagamma, had asked him to convey to me that it was rumoured in the village that my daughter Mangamma had been murdered by her husband Malladi Ramayya (son of Pullayya and his keep, Komuri China Venkayya's wife, Thulisamma, and that my daughter was not found in the village.
Thereupon, myself and Avula Kotayya started for Adigoppula and reached there yesterday evening. Then, on enquiry about my daughter Mang-amma in the village (I heard) rumours that the abovesaid persons had murdered my daughter and thrown her somewhere. My daughter is not found in the village. Therefore, necessary action may be taken. As the (village) Munsiff is not in the village, I have got the report written at the (Police) Station.
4. On this, a case of woman missing was registered by P W. 11, Head-Constable in charge of the police station (the entry being Ex. P-12). It is seen that only A-1 and A-2 are implicated by P. W. 1. It is also significant that Ex. P-12 mentions the date and hour of occurrence as 27-5-1954. On the 30th, P. W. 11, went to the village and examined P. Ws. 1, 2 and 3. The investigation was taken over by the Inspector of Police, P. W. 12, on the 31st and he examined P. Ws. 4 sand 5.
On the 16th of June, the third accused a brother of the 1st accused who had gone to a different village in adoption was arrested and he gave information leading to the discovery of the tiones of the deceased Mangamma, the foetus in her womb, some pieces of broken bangles, piecea of cloth forming part of a saree said to have been owned by Mangamma and a lock of hair. That statement is embodied in Ex. P-7.
Myself and my brother...secreted the dead body in between stones in the Vagu (stream); and covered it with stones so that it could not be seen outside...
My brother ...kept in the house... three silver bangles which my sister-in-law was wearing.... I shall show the bangles, and the place where the dead body of my sister-in-law was buried in the Thatibandla Ralla Vagu.
5. After the statement was recorded, the; third accused first took them to the house of the first accused. The third accused went into the house of A-1 and brought three silver bangles identified by P. W. 1 as those worn by his daughter. Thereafter, he led them to a hill five milea away and showed the spot where the body had been cremated.
There they found ash, cinders, bones and glasa bangle pieces and burnt pieces of cloth. After these articles were seized, the accused 3 took them to another place called Thatibandla Ralla Vagu and showed them a skull bone, small bones, tuft of hair, pieces of cloth and bangle pieces shoved under big boulders. Soon after this entry in Ex. P-12 was altered into one under Sections 302 and 201, I.P.C. and the informant was added to the list of the accused.
6. The case of the prosecution rests mainly on the evidence of Pws. 4 and 5 on the first charge. P. Ws. 1 to 3 are examined to corroborate the two alleged eye-witnesses. Reliance is also placed on the circumstance relating to the recovery of the bones, etc., as a result of the statement made by the third accused as borne out by Exs. P-5, P-7, P-8, P-9, P- 10 and P-11.
7. We will first refer to the evidence of P. W. 4 as he is alleged to be the person who witnessed the occurrence and reported it to the :mother of the deceased.
P. W. 4 deposed that one morning he went to see a tank dug by his father-in-law. While returning at about 10 A.M. by the side of the hay-yard of A-1 he saw a cart outside, and inside the yard A-2 and the deceased catching each other's hair and quarrelling. He also saw A-1 beating the deceased with a cart-peg on the right side resulting in the latter falling down crying 'Ammoyi'.
He then went inside to find Mangamma dead. Mangamma was then pregnant. When questioned, A-1 said that his wife pulled the hair of A-2 who came there for hay and would not release it. He went to the house of P. W. 2 to tell her of it but she was not there. When he went to the yard again after food, he found P. W. 2 and her son weeping there. He then acquainted them with what he had seen.
8. P. W. 5 who owned a hay-yard adjoining that of the first accused heard a cry of anguish, proceeded to the hay-yard of A-1, and saw A-1 and A-3 standing and Mangamma lying there. He did not see if Mangamma was dead.
9. P. W. 2 the mother of the deceased corroborates P. W. 4. Her version is that on the morning of the date of offence she saw her daughter going to the hay-yard. Some time later, her grand-children came to her complaining that their mother had not returned home.
10. She then sent her son to search for her and he returned to tell her that A-1 and A-2 were in the hay-yard but not his sister. That night P. W. 4 told her that A-1 and A-2 killed her daughter. The next morning, she sent one Kotayya to fetch her husband who was then in a village called Chiluvur. On the report given by her husband the police came their and examined her. She had identified M.O. 1 as the silver bangles worn by her daughter. She is supported by P. W. 3 both as regards the search for the deceased and P. W. 4 giving her information about the commission of the offence by A-1 and A-2.
11. P. W. 1 said that at the relevant time he was tending sheep in a neighbouring village, that one day Kotayya went to him and told him that his daughter was murdered by A-1 and A-2, and this was seen by P. W. 4. On this, he came back to his village Adigopulla and gave Ex. P-1 to the Police. He added that two weeks later he was called to the house of A-1, that A-2 and A-3 were also there and A-3 went inside and brought out three bangles which were identified by him as those belonging to his daughter.
The witness added that in the course of the same day, A-3 led a party consisting of himself, P. W. 10 and P. W. 12, the Inspector of Police to Paluguralla hills and showed them burnt cinders, ash and bones. Within a distance therefrom, they could also see locks of hair, a number of bones said to be those of a foetus, remnants of sarees, bangle pieces, etc., which were also shown by the third accused. This is all the evidence bearing on the charge of murder.
12. The plea of the first accused was one of denial.
13. The learned Sessions Judge acting on this material found the first accused guilty under Section 302 and sentenced him to transportation for life.
14. The main point for consideration in this appeal is whether the guilt of the first accused on this count has been brought home to him. If the testimony of the afore-mentioned witnesses is accepted, the charge can be said to have been substantiated. But, we are confronted with innumerable difficulties in accepting the evidence of these witnesses. The evidence of P. W. 3 makes it apparent that the testimony of PWs. 4 and 5 that they could see the quarrel between the second accused and the deceased and the first accused dealing a blow to the deceased with a cart-peg is unworthy of credit.
P. W. 3 was categorical that the yard was surrounded by trees and fencing and what was going on inside could not be seen by outsiders. According to P. w. 4, he entered the yard only after Mangamma fell down crying 'Ammoyi' Though the present version of P. W. 5 is that he went into the yard and saw Mangamma lying dead and A-1 and A-3 standing there, his statement to the Police was that he saw them from outside and did not go in. This shows that these two witnesses have drawn freely on their imagination. Though P. W. 4 professes to have given information of the incident to P. W. 2, Ex. P-1 makes it abundantly clear that it is untrue.
It is stated in Ex. P-1 that Mangamma was missing, and that there was a rumour in the village that she was done away with by A-1 and A-2. The elaborate enquiries made by P. W. 1, says the document, did only confirm the rumour. Nowhere is any mention made of what P. 'V. 4 is alleged to have told P. W. 2. It is also unthinkable that Ex. P-12 would have shown the date of occurrence as 27-5-54 if really either P. W. 1 or the police officials were in possession of the information regarding the death of Mangamma.
The date mentioned in the document i.e., 27th of May, is significant because that belies the present version of P. Ws. 4 and 5 that they witnessed Mangamma being done to death on the 26th. There is the additional factor that although P. W. 1 after registering the case went to the village on the 30th, neither of the two witnesses had made any statement before him. This only shows that till that date they were not thought of as eye-witnesses.
Further, it has been satisfactorily established that P. W. 4 is an enemy of the first accused and that P. W. 5 is a close relation of P. W. 4 and this renders it unsafe to act on their evidence. The testimony of P. W. 4 has also to be discredited in view of Ex. P-1. Nor can any weight be attached to the statement of P. W. 1 that he was informed by Kotayya that P.W. 4 had seen A-1 killing Mangamma, having regard to the recitals in Ex. P-1. If this evidence is rejected, we have to remark that there is no proof of corpus delicti.
15. It is true that the prosecution sought to establish that Mangamma was killed and buried somewhere in a Vagu. For this purpose, statements said to have been made by A-3 leading to the recovery of some material objects were called in aid. We will presently show that the evidence concerning the discoveries is inadmissible and even otherwise the prosecution had not succeeded in showing that they relate to the body of Mangamma. On this discussion, it follows that the charge of murder against the first accused fails and he will be acquitted of the offence under Section 302, I.P.C.
16. This leads us to the second charge under Section 201, I.P.C. This is based mainly, as already remarked, on a statement made by A-3 to the Inspector of Police embodied in Ex. P-7 which has already been extracted. The prosecution relies on the evidence of P. Ws. 8, 10 and 12 and also P. W. 1 to prove the circumstances relating to the statement and the resultant discoveries. We think that the whole evidence on this aspect of the matter has to be excluded as being inadmissible for the reason that Ex. P-7 cannot fall within the ambit of Section 27, Evidence Act. Section 27 recites:
Provided that when any fact is deposed as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such Information whether it amounts to confession or not as relates distinctly to the fact thereby discovered may be proved.
17. Before the provisions of the Section 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 that section.
The learned Public Prosecutor attempted to support the judgment of the Sessions Judge on this part of the case by arguing that to apply Section 27 it is not necessary that a person to whom the statement is attributed should be accused of an offence and that it is sufficient compliance with the section if a man is arrested in connection with a crime which is under investigation.
18. We are unable to accede to this proposition. It may be mentioned here that in Section 150 of Act 8 of 1869 the predecessor of the present Act 1 of 1872, the language used was 'in consequence of information received from a person, accused of any offence or in the custody of police officer' etc. But in the present section, the word 'or' is omitted, which means that both the conditions, namely, the person being accused of an offence and his being in the custody of a police officer should be present to enable the prosecution to make use of statements under that section. '
Giving the plain and natural meaning to the relevant words, we reach the conclusion that in order to invoke Section 27 it should be established that the man giving the information was accused of an offence and he was in the police custody at the relevant time.
19. For the contrary view, the learned Public Prosecutor relied on a judgment of Horwill J. in - In re Kamakshinaidu AIR 1943 Mad 89 (A). We do not think that it furnishes any analogy to the present case. There, a man was arrested in connection with a criminal breach of trust in respect of a cycle that had been taken on hire and then sold. While in custody for that breach of trust, he confessed he committed a similar offence. The question arose whether that statement was admissible.
The contention raised on behalf of the accused was that this statement was not made in regard to the accusation in connection with which he was arrested. The learned Judge answered it in the affirmative repelling the contention for the petitioner, because on the date the statement was made the man was accused of an offence.
20. The interpretation suggested by the Public Prosecutor renders a part of the section otiose. It is a golden rule of construction that effect should be given to every paxt of the section in an enactment. It should not be assumed that the Legislature used language without any purpose. In this context, reference may be made to Section 26, Evidence Act which renders 'a confession made by any person whilst he is in the custody of a police officer' inadmissible.
Thus in order to eliminate a confession by a person under Section 26 it is not necessary that he should be accused of an offence at that time whereas in Section 27 which is a proviso to Section 26 both the conditions are prescribed. In our opinion, the Legislature has advisedly used the expression 'accused of any offence' and meaning has to be given to it.
21. Apart from the clear language employed in Section 27, our view is also reinforced by decided cases. In - 'Queen-Empress v. Babulal,' 6 All 509 (B), a Full Bench of the Allahabad High Court expressed the opinion that statements in order to fall under Section 27 must contain every one of the following qualifications:
(i) The person making the confession must be 'a person accused of any offence.'
(ii) He must be 'in the custody of a police officer whilst making the confession.'
(iii) The confession must 'relate distinctly to the fact thereby discovered.' According to this decision, one of the essential ingredients is the person being accused of any offence at the time of making the statement. This was followed by a Bench of the Patna High Court in - 'Deonandan Dusadh v. Emperor,' AIR 1928 Pat 491 (C). It was there ruled that as the informant had not been accused of an offence at the time he made the statement, the statement was inadmissible under Section 27. The law enunciated by the Lahore High Court in -- 'Jalla v. Emperor,' AIR 1931 Lah 278 (D) and --'Chetu v. Emperor,' AIR 1948 Lah 69 (E), accords with the principle mentioned above.
This view is endorsed by Sarkar in his book 'On Evidence' at p. 253 (Ed. 9). Admittedly, at the time when A-3 gave the statement, Ex. P-7 he was not accused of any offence. It is only as a result of the information given by him that he was implicated in the case. We, therefore, hold that the statement contained in Ex. P-7. cannot be used as evidence as it does not come within the meaning of Section 27, Evidence Act.
22. There is also another hurdle for the prosecution in regard to this matter. While it was recited in the document, Ex. P-7, that the dead body was buried in a pit, the remains of the body are purported to have been recovered on some hills five miles away from Adigopulla. In such a situation, it could not be said that in consequence of the statement made by the third accused, the discoveries relied on by the prosecution were made.
In these circumstances, we do not feel called upon to decide whether the statement made by the third accused was a voluntary one and whether the material objects recovered had any connection with the death of Mangamma, although we feel that there is a good deal of force in the argument of Mr. Sarma that these discoveries do not at all relate to the dead body of Mangamma and that the foetus said to have been discovered cannot relate to the present case.
There are various indicaions in the case which render it very doubtful whether any of the things discovered at either of the two places could have any bearing on the present incident. However, it is not necessary for us to go into that question, as already observed, in view of our findings on other questions. For these reasons, we must hold that the charge under Section 201 against either of the two accused has not also been substantiated.
23. The result is the appeal is allowed the convictions and sentences are set aside; and the appellants are directed to be set at liberty.