Jaganmohan Reddy, J.
1. I have had the advantage of perusing the judgment of my learned brother. The facts of the case have been set out fully in the judgment about to be pronounced and it would be unnecessary to reiterate them.
2. While agreeing with the conviction and sentence proposed to be passed against the accused, there are, however, two matters to which I wish to address myself, viz., (1) to what extent is the statement of the accused in Ex. P-1G admissible in evidence, and (2) what is the scope of Section 27 of the Evidence Act. I would not after the authoritative and weighty pronouncement of the Judicial Committee in Pulukuri Kottayya v. Emperor AIR 1947 PC 67, have ventured to examine the whole matter as if it was res Integra, but having regard to the observations of any brother Sanjeeva Row Nayudu expressing doubts on that judgment, J. hasten, with the greatest respect, to say that I am unable to find myself in agreement with him.
3. On the first question, it may be stated that Ex. P-4 is the F. I. R. relating to the murder of Vanga Venkati issued 011 the information given by his wife, P.W. 16, Veeramma in Ex. P-5 on 27-6-1955 at 7-15 A.M. The Investigating Officer, Deendayal, P.W. 2, who recorded the statement registered a case against the accused for an offence under Section 302 as Crime No. 29/1957 and issued the F.I.R.
He thereafter went to the house of the accused there found the dead body of Rajamma also and that the dead body of Venkati was lying in the cattle-shed. He then says that when he questioned the accused regarding the death of Rajamma, the accused said that his mother was raped and murdered by Bootla Venkati and on seeing this he grew annoyed and murdered him with a roof-Bolt. P.W. 2 states that he then recorded the accused's statement and sent it to the Sub-Inspector.
This is the F. I. R. Ex. P-4-A. It may be noticed from Ex. P-4-A that this statement of the accused was recorded at 8 a.m. and if this is considered with the evidence of P.W. 2 in cross-examination that he arrested the accused at 7-45 a.m., it becomes clear that the statement by the accused on the interrogation of the police officer was giver, after he was arrested.
It is thus clear beyond doubt that the accused did not give a complaint concerning the death of his mother so as to give it the status of a first information concerning the death of his mother, but in explaining the death of Venga Venkati he was stating how his mother was killed and by whom and therefore it cannot be said that the death of the accused's mother was not under investigation when the accused made the statement, Ex. P-4-A.
It is thus seen that as soon as P.W. 2 found the body of Rajamma and that of Venkati in the cattle-shed, he proceeded to arrest the accused and to question him regarding the murder of Venkati, The statement of the accused was thus made during [ho investigation of the murder of Venkati and consequently it is hit by Section 162 Cr. P. C. Even otherwise, in so far as the confession is concerned, it is hit by Section 25 of the Evidence Act.
In my view, it is therefore not a case of a complaint to the police in the case of the death of Rajamma. Even if it is considered to be a statement made during the investigation of the accused's mother's death under Section 174 Cr. P. C. as indeed P.W. 2 suspected foul play it is one made in the course of investigation and is inadmissible under Section 162 Cr. P. C. I am clearly of the view that Ex. P-10 is inadmissible and must be ruled out.
4. Even after it is ruled out, from the statement of P.W. 19 Ambala Rajam as well as the statement of the accused under Section 342 it would appear that by the time the accused returned after informing P.W. 16 about the drunken state of her husband, he found his mother was raped and murdered by Venkati. This is also what is stated in Ex P-10 though in the evidence of P.W. 19 and his statement under Section 342 he asserts that Mande Rajam informed him about these facts after his return and that he confessed to him that it was he, Mande Rajam, who on seeing what Venkati did, had beaten Venkati and killed him.
On hearing this accused had given some four or five blows to Mande Rajam. The case of the accused therefore was that his mother was raped and killed by Venkati and not by him. The Sessions judge considered the evidence against the accused for the murder of his mother insufficient, but thought that Bootla Venkati was so drunk he could have hardly raped and killed a woman or 65 years of age, particularly the mother of a man who always obliged him with drink.
The question is not whether a person would have attempted to commit rape of an old woman of 65 years, but whether a person in a drunken state overcame any such aversion and attempted such an act. That this allegation was put forward at the very commencement of the case is evident also from the fact that the police sent the clothes of the deceased Rajamma to the Chemical Examiner for a report as to whether there was any semen or spermatozoa thereon, The negative report does not reject the theory of an attempt made to rape her and to have killed her in making that attempt.
On the question whether the accused killed Venkati on finding that Venkati had tried to rape his mother and killed her or had believed that this was so and in that behalf was provoked to cause injuries on Venkati with a roof-bolt as a result of which Venkati died, I agree with any learned brother that the accused is guilty of the offence under Section 304. The injury to the anus of the deceased Venkati is an indication of the intensity of anger aroused in the accused on the information that his mother was raped.
The defence that Venkati was killed by one Mande Rajam as sought to be corroborated by P.W. 19 is not establisfied. P.W. 19 is an interested witness, as his wife's mother and the accused's mother are sisters and according to P.W. 14 Maude Rajam was brought up by the accused about ten years ago but was not with him since then. That apart, Ex. P-7 relating to the recovery of the roof-bolt on the information furnished by him corroborates the prosecution evidence that it was used in the commission of the offence. This bolt was sent to the Chemical Examiner who found human blood on it.
5. Now on the question of statements under Section 27 it is well to remember that the view taken by the Full Bench Judgment of the Madras High Court in Athappa Goundan v. Emperor 1LR (1937) Mad 695 : (AIR 1937 Mad 618) (FB), was overruled by their Lordships of the Privy Council in AIR 1947 PC 67. The Full Bench while admitting that the weight of Indian authority was against them, nevertheless took the view that any information which served to connect the object discovered with the offence charged was admissible under Section 27.
The facts in that case were that the accused charged with an offence of murder made a confession in police custody and the Court admitted the confession because in the last sentence, there Was an offer to produce two bottles, a rope and a cloth gag which according to the confession were used in or were connected with the commission of the murder and the objects were in fact produced. The last sentence in the confession relating to the offer to produce the bottles etc., it may be stated, was easily severable.
But the Court, however, took the view that as the objects produced were not in themselves of an incriminating nature, their production would be irrelevant unless they were shown to be connected with the murder: & there was no evidence so as to connect them apart from the confession. It also took the view that the thing must be connected with the crime in question in order to come within the rule of the relevancy laid down in Section 5 of the Evidence Act. With this reasoning, however, their Lordships of Privy Council did not agree observing at page 71:
'...... The difficulty, however great of proving that 'a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into Section 27 something which is not there, and admitting in evidence a confession barred by Section 26. Except in cases in which the possession, or concealment of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by the law.
In their Lordships' opinion ILR 1937 Mad 695 : (AIR 1937 Mad 618) (FB) was wrongly decided, and it no doubt influenced the decision now under appeal.'
This view of the Privy Council had set at rest a great controversy in the Courts of India, and even after our Constitution came into force has been approved specifically by several judgments of the Supreme Court of India. The doubts expressed, based as they are on the meaning to be given to the words, 'whether it amounts to a confession or not' have also been dispelled by their Lordships of the Supreme Court in the ease of Ramkishan Mithanlal Sharma v. State of Bombay, (S) : 1955CriLJ196 , Bhagwati, J., observed at pages 115-116 as follows :
'Section 27, is an exception to the rules enacted in Ss. 25 and 26 of the Act which provide that no confession made to a police officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Where however any fact is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not.
The expression 'whether it amounts to a confession or not' has been used in order to emphasise the position that even though it may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the accused. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate : AIR 1947 PC 67.'
Again in Pershadi v. State of Uttar Pradesh, (S) : 1957CriLJ328 . the admissibility of the statement of the accused leading to the discovery of certain clothes was considered in the light of the Privy Council case. Imam, J., stated at pages 214-215 thus :
'.....On the question of admissibility of the appellant's statement to the police, Agarwala, J. thought it to be admissible and we think rightly, having regard to the decision of the Privy Council in ILR 1948 Mad 1 : (AIR 1947 PC 67). Sir John Beaumont in delivering the judgment of the Privy Council set out the entire statement made by the accused No. 6 to the police and held that the whole of that statement except the passage 'I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if yon come' was inadmissible. In other words, the statement 'I hid it (a spear) and my stick in rick of Venkatanarasu in the village. 1 will show if you come' was admissible. In the course of the judgment, Sir John Beaumont observed,
In their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or to the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in the custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife used in the commission of the offence the fact discovered is very relevant.'
The statement of law in the above cases lucidly, if I may say so with respect, tersely sums up the law on the point. Once a principle is well-established and is laid down by the highest Court of the land, it is the law and can only be displaced by legislation. In my view, speaking personally, it is too late in the day to disinter the case of ILR (1937) Mad 695: (AIR 1937 Mad 618) (FB).
6. In the result, the conviction and sentence against the accused are set aside and in its place the accused is convicted under Section 304 and sentenced to seven years R. I. The appeal of the accused is, therefore, partly allowed.
Sanjeeva Row Naidu, J.
7. The appeal has been preferred against the Judgment and order of the Court of Session. Khammam, in Sessions Case No. 9/8 of 1957 convicting the appellant Bejjanki Rajam, on a charge under Section 302, I.P.C. for causing the death of one Bootla Venkati and sentencing him to imprisonment for life.
8. The appellant was originally charged by the learned Sessions Judge, Khammam, with having committed the murder of Bejjanki Rajamma, his mother, and of Bootla Venkati on or about 26-6-1957. Although the prosecution averred the commission of two murders, a single charge was framed in respect of the same. The appellant, however, was found not guilty of the charge of murder of Bejjanki Rajamma, and there being no appeal in respect of this acquittal by the State, we are concerned in this appeal only with the alleged murder of Bootla Venkati.
9. The prosecution case, briefly, is as follows : The appellant. who was a contractor with the Singareni Collieries for the supply of the labour, was residing in the village of Kothagudem. The mother of the appellant, the late Bejjanki Rajamma, also used to live with the appellant in his house at Kothagudem. When she noticed that the appellant was having illicit intimacy with one Shantamma, the wife of the nephew of the appellant, the appellant's mother protested against this conduct and this resulted in the appellant's beating and driving away his wife, Ramakka, his mother, the deceased Rajamma and his sister as well as her son and daughter-in-law, Shantamma, who, consequently, went and took up a separate residence.
On the day previous to the date of the occurrence, namely, 26-6-1957, the appellant had brought his mother from the house of his sister to stay with him. On 26-6-1957, at about 5 p.m.. the appellant went over to the house of his friend, Bootla Venkati (the second deceased in this case) and took him to his own house as usual and both the appellant and Bootla Venkati settled down to drinks in the house of the appellant.
They had, apparently, been continuously drinking and were in a state of intoxication by about 8-30 p. m., and it is the prosecution case that at about this time, the appellant asked his mother, who was lying on a cot, as to whether she would take any Biriyani or rice and, on her refusing to take anything, he forcibly lifted her from the coat and gave several severe blows with his fists, thereby causing fracture of four ribs on each side and also a serious injury to her pleura and lungs which resulted in her death.
The appellant was then stated to have taken her and thrown her on a cement slab used as a bathing stone. On this, Bootla Venkati, who was also at that time in a state of intoxication and who was seated in another room, came out and objected to the appellant beating his mother, saying that if he beat her like that she would die. On this, the appellant seems to have flared up against Venkati saying that, in spite of taking drinks at his place and eating his food, he (Venkati) was challenging him and so saying, he gave severe blows with his fists and Venkati fell down under the impact of these blows. As he was trying to gel up, the appellant is said to have taken a roof-bolt from his house, (i.e., a thick iron-rod like a crow-bar about four feet long and one and half inches thick) and inflicted some blows on the shoulder and neck of Venkati, as a result of which he fell down unconscious. The appellant then lifted and dragged him out through the door into the compound and threw him near the wooden logs in front of his door and then sat on his stomach and fisted him on his face and chest, saying 'Go and inform your Babu; you want liquor; you want brandy' or words to that effect.
Sangavarapu Rajamallu alias Aggipore (P. W. 14). who works under the appellant and supervises the work of the labourers and comes to report daily to the appellant, happened to come to the house of the appellant that evening at about 7-30 p. m., and was waiting there to get a chance to talk to the appellant. When he saw Venkati being dragged, down, he tried to intervene and told the accused that it was not good to kill him.
On this, the appellant appears to have threatened the witness, pointing the roof-bolt at him. whereupon the witness slipped over to a side and hid himself in a thorn-fence and in the darkness from where he saw the further activities of the appellant namely, his sitting on the stomach of Venkati and fisting him. It was at this time that another witness, Allakonda Durgaiah (P.W. 15) who seems to have been passing along the road running by the side of the fence of the appellant's house, heard the noises and came near the fence and saw the appellant beating Venkati sitting on his chest.
He also saw P. W. 14 sitting near the fence and out of fear lie ran away from that place. He, however, reached Venkata's house and informed his wife, Vanga Veeramma (P.W. 16) that her husband was being beaten by the appellant and that she should lake steps to rescue him. On this, Veeramma proceeded to the appellant's house and saw the appellant heating her husband sitting on his chest and out of fright she returned and went to the houses of Peer Gulam (P. W. 10) and Parapati Pentaiah (P. W. 11) and requested them to rescue her husband hut they refused saying that they were not doing well .... Veeramma thereupon returned to her house and out of fear she stayed in.
At about 11 p. m., the appellant himself came to Veeramma's house and called 'Munshi' 'Munshi' (as he usually addresses Bootla Venkati) and enquired if Munshi was in. Veeramma-replied that he was not. on which the appellant appears to have stated that Venkati was drinking and revelling, that he was lying down in his house and that he should be taken away from there. Veeramma said that she would not come out in the night and on this the appellant went away.
After this, the appellant proceeded to the houses of his relations, Ambala Rajam (P. W. 18) and Gallipalli Posham (P. W. 17) and others and brought them to his house saying that his mother was dead. On their arrival there, Chinna Ellaiah, son of Rajam, lifted the body of Venkati and put it in the appellant's cattle-shed and Chinna Ellaiah and P. W. 8 lifted the body of Rajamma from the cement slab and placed her in the inner room on a cot.
On the following morning, i.e., 27-6-1957 at fib out 5-30, Veeramma wife of Venkati, went to the appellant's house and found her husband lying in the cattle-shed of the appellant groaning and in a dying condition. He did not respond to her questions and considering the fact that her husband's condition was very precarious she brought her daughter to the place and very shortly thereafter Venkati expired.
On this, Veeramma proceeded to the Police Station and made an oral complaint to the Sub-Inspector, K. Deenadayal, (P. W. 2), Ex. P-5, who registered a case under Section 302 I. P. C. and issued the first information report, Ex. P-4, which was received on that very day i.e., on 27-6-1957 in the Magistrate's Court. The Investigation Officer then proceeded to the spot and on coming to the appellant's house he found the dead body of Rajamma in a room in appellant's house and that of Venkati in the cattle-shed.
When the Sub-Inspector questioned the appellant, the latter appears to have, made a statement, recorded as Ex. P-10, wherein he stated that Venkati had committed rape on his mother and killed her, that it was then that the appellant had given a slap to Venkati on which he went and fell at a distance and that thereafter the appellant took a roof-bolt and beat Venkati, who subsequently died. On this, the Sub-Inspector of Police registered the F. I. R. (Ex. P-4-A) under Section 302 I. P. C. and the name of. Bootla Venkati is shown as the accused in that F. I. R.
Inquests were held on the dead bodies of Bejjanki Rajamma and Bootla Venkati and they were sent for the post-mortem examination. The postmortem examination revealed that there were thirteen Injuries in all, on the body of Bootla Venkati, that there were fractures of the second and the third ribs on either side, that the skull was fractured near the base and that there was fissure in the liver, as also a tear in the pleura corresponding to the broken ribs. Bleeding was noticed through the anus. In the opinion of the Medical Officer, these injuries were caused by a blunt weapon like roof-bolt, M. O. 2, and that death was caused as a result of shock and haemorrhage produced by these injuries.
10. In the case of Bejjanki Rajamma with which we are not concerned in this appeal, death was due to fracture of the thyroid cartilage and of hyoid bone and fracture of second third, fourth and fifth ribs on either side, each rib being broken in two places both in front and in the back. Pleura and lungs were found punctured on account of the fracture of the ribs. There were contusions on the chest and neck and death in the case was due to shock and haemorrhage as a result of the injuries. The Medical Officer was also of the opinion that these injuries could be caused either by a blunt weapon or by hands.
11. It is also the prosecution case that the appellant made a confessional statement before mediators on 27-6-1957 and that as a result of information given by the appellant, the Police proceeded to his house and recovered the roof-bolt (M. O. 2), which Is said to have been used by the appellant in this case in causing the death of Bootla Venkati under Ex. P-7, the panchanama, wherein the fact of recovery as also the furnishing of information by the appellant were recorded.
12. The plea of the appellant in the committal Court was that he did not beat Bootla Venkati with the roof-bolt, that it did not belong to him but to someone else, that he did not know wherefrom the police had brought it, that the witnesses had given evidence against him on account of previous enmity in connection with money matters and that the allegation that he had illicit intimacy with Shanthamma was baseless and false.
13. In the Sessions Court, he denied everything. He. however, admitted that he informed Veeramma in the night that Bootla Venkati was in a drunken state and that he said that he was not coming home when he (appellant) asked him to come and that Veeramma told that as there was none in the house, she would not come in the night. He discredited the evidence of Aggipore (P. W. 14) on the ground that P. W. 14 used to work under the appellant, that he falsified accounts and so the appellant had suspended him and that this must be the result of the grudge he boro against the appellant. He, however, admitted that he gave his post-office pass book to Aggipore to draw money from the post office on the morning of 27-6-1957 but stated that the witness did not give him- the money.
The appellant also admitted that he had gone and called his relatives, that when he returned he found Venkati lying in his cattle-shed, that he saw Rajamma's body on the cement slab, that he lifted the body and placed it in the inner room, that Chinna Elliah stated that there was much more to be seen in the cattle-shed, that on his going there he found Venkati lying there opening his mouth and saying 'Ha Ha' and that Ellaiah poured water in Venkati's mouth. He further stated that he saw his mother on the cement slab naked and lying there dead. His further statement in answer to the question put to him by the learned Sessions Judge is as follows;
'I came to my house at about 8-30 or 9p.m. I took a bath. I took some liquor. Half an hour after that Bootla Venkati came. When he came he was fully drunk already. We were talking together and while I was taking liquor, I gave him also one dram of liquor. It was then 10-15 or 10-30 p. m. My mother asked me why the other man was there. He was fully drunk and doing noise and asked rne to take him outside. Then I told him, Munshi, let us go to your house; it is late in the night. He said, he will not come. Therefore, I went to his house because he refused to come with me and I informed his inmates that Venkati was drunk and unconscious. When I came back to my house, I saw my mother lying dead on the cement slab and Bootla Venkati was lying outside. I first saw Venkati lying outside and thought why he was here. So I went inside and found my mother dead on the cement slab. I asked the boy Manda Rajam whom 1 had brought up and who was inside, as to how this all happened and how Rajamma was lying dead there, and. Venkati outside. He said that Bootla Venkati who was in drunken state tried to rape the mother and he (Venkati) lifted her and placed her against the cement slab and at that time she made cries and Venkati strangulated her and when he hoard the noise he came out and saw all that was going out. He saw all this and that Bootla Venkati committed rape on mother and that therefore he gave two blows to Venkati. Then I said why he allowed things to develop to such an extent and why he was sleeping all the while and so out of anger I gave Manda Rajamma three or four slaps. I then went out to Panjabi Gadda to bring all our relatives and meanwhile Manda Rajam disappeared All our relatives came and we lifted the dead body of my mother and placed it inside. It was raining. I could not go out any where, and I remained in the house with my children. Next morning, I woke up at 7 a. m. I went and saw Venkati still alive. I took a withdrawal form from post-office and wrote and gava application for drawing money for funeral expenses of my mother. Bootla Venkati's wife and daughter came and saw. I sent for all our relatives and stayed at my house. The police also came and asked me not to go anywhere. I did not go anywhere.'
14. When asked whether the appellant had any witnesses to be examined in his defence he said that any defence could not be led about an incident that occurred in the night time.
15. In considering the truth or otherwise of the prosecution story, we feel that it is helpful to first of all take into consideration the facts which are not in dispute and they may be set out herein.
(1) On the date of occurrence, Bejjanki Rajamma, the mother of the appellant, was living in his house, (2) The second deceased, Bootla Venkati, and the appellant were close friends and were in the habit of meeting in the house of the appellant for drinks.(3) On the date of the occurrence, viz., 26-6-1957, in the evening, they had similarly met and were drinking together. (4) Both the appellant and the deceased (Bootla Venkati) were in a slate of intoxication on the night of 26-6-1957. (5) The appellant proceeded to the house of Venkati at about 11 p. in. and informed the deceased's wife, Veeramma, that Venkati was lying in his house dead drunk and that she should take him away from there. (6) A little later, the appellant went to the houses of his relations, P. Ws. 10 and 11 and informed them that his mother was dead and requested them to come to his house.
(7) The appellant and his relatives reached the appellant's house and found the dead body of his mother lying naked on the cement slab outside the house.
(8) At the same time, Venkati was seen without anything below his waist lying near the logs, groaning and was carried to the cattle-shed where he died early next morning.
16. The evidence for the prosecution in this case consists of that of witnesses who had partly witnessed the alleged occurrence and of others whose evidence is mainly circumstantial. (After discussion of some evidence His Lordship proceeded:)
17. P. W. 1, the Medical Officer who conducted the post-mortem examination on the body of Venkati observed the following external injuries.
'1. Bruise: 2' X 1' X 3/4' over occiput.
2. Bruise: 1 1/2' X 1' X 3/4' over the back of the right oar. Right ear bleeding.
3. Two linear abrasions over the rightside of the neck 1/2' long and skin deep.
4. Excoriation over the neck on left side anteriorly minute abrasion 1/4' long and 1/8' wide each.
5. Excoriation on the chin.
6. Abrasion 1/2' X 1/2' over the left cheek.
7. Abrasions 3/5' X 4/4' over the left check.
8. Neck and the chest area up to 2nd rib swollen and congestion beneath noted on flap dissection.
9. A bruise over the left side of the chest 2' X 1 1/2' just below the clavicle.
10. Similar bruise over the right side also noticed.
11. Bleeding through anus. Anus dilated. A tear at the posterior angle.
12. A highly congested area noted, on dissection over the right side of the back close to the spine (lower dorsal region).
13. Abrasions over both the knees 1' X 1/2' just medial to the knee cap.
On internal examination, he found the following injuries:
1. Fracture of ribs-right side 2nd, 3rd, 4th and 5th ribs joint close to the junction, 2nd and 3rd near their angles at the back also. 2nd rib broken midway between the angle and costochondral junction also.
2. Froth/ found reddish fluid was coming out from the nostrils and mount.
3. Larynx compressed, cericoid trached rings compressed. Thyroid cartilage and hyoid bone broken laterally.
18. He was of the opinion that death was the result of haemorrhage and shock consequent on the injuries sustained by the deceased. He was also of the opinion that a blunt weapon would have been used to cause the injuries, that it was quite possible that these injuries were caused with an iron rod, M. O. 2 and that each one of injuries Nos. 8, 12 and 2 noted in the post-mortem report, Ex. P-2 was fatal even taken separately. P. W. 2 was the Sub-Inspector of Police who conducted investigation into this case.
He deposed that on 27-6-1957, at about 7 a.m., Vanga Veeramma, wife of the deceased Venkati, P. W. 16, came to the police station, Kothagudam, and reported orally that her husband was murdered by the appellant, that he, the witness, recorded her statement and registered the case under Section 302 I. P. C. and that ho proceeded to the scene of offence to investigate into the alleged murder of Venkati. When he arrived at the house of the appellant, he found the dead body of Venkati lying in the cattle-shed of the appellant within the compound of the house and it was then that the appellant gave a complaint to P. W. 2, recorded Ex. P-10 concerning the death of Bootla Venkati.
As a result of the statement made by the appellant to P. W. 2 (recorded as Ex. P-10), he recorded !ho F. 1. R. Ex. P-4-A concerning the murder of Bejjanki Rajamma, noting therein the name of the accused as 'Bootla Venkati'. P. W. 2 then held inquests on both the dead bodies and had them sent for post-mortem examination. On 29-6-1957, in the presence of mediators, P. W. 2 recovered the roof-bolt (M. O. 2) from the house of the appellant in pursuance of the information given by the appellant to the mediators, which information and the consequent recovery of the roof-bolt were recorded in Ex. P-7.
19. The learned counsel for the appellant contends that Ex. P-10 which purports to be a statement made by the appellant to P. W. 2, who is a police officer, is inadmissible in evidence, having regard to Section 162 of the Code of Criminal Procedure and Section 25 of the Indian Evidence Act. We shall first consider the objection with reference to Section 162) Criminal P. C., which is in these terms:
'(1) No statement made by any person to a police officer in the course of an investigation 'under this chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement if duly proved may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act. 1872 and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) x x x x x' Under this section, before a statement made by anyperson to a police officer in the Course of an investigation that is being conducted by him is excluded From evidence, the following conditions would have to be fulfilled
1. The statement should have been made by any person to a police officer; and
2.' the making of the statement should have been in the course of an investigation conducted by [he said police officer under Chap. XIV Cr. P. C. Once these two conditions are fulfilled, the use of that statement for any purpose except for the purpose specified in the proviso is prohibited only at any enquiry or trial in respect of the offence which was under investigation at the time when Such statement was made.
20. Since this is a de-limiting section encroaching on the normal rules of evidence, it, in our opinion, should be construed strictly and confined to the language and the wording employed in the section and should not be extended any further. On a careful consideration of the Section, we are clearly of opinion that where a statement was made by any person to a police officer in the course of an investigation that was being conducted by him at that time in respect of any offence which was under investigation at that time, it is inadmissible subject to the proviso. It follows from this that it a statement was made by any person to a police officer in respect of an offence which was not under investigation at the time when such statement was made, then that statement is not hit by Section 162 Cr. P. C- and cannot be excluded from evidence at an enquiry or trial in respect of that offence which was not under investigation at that time.
Applying this to the present case, Ex. P-10, which purports to be a complaint given by the appellant to the police officer, P. W. 2, concerning the death of his mother and accusing the deceased, Bootla Venkati, as the person who had committed the murder is not. in my opinion, hit by Section 162 Cr. P. C., as the offence of the murder of Bejjanki Rajamma, the mother of the appellant, was not under investigation at that time.
21. The next question for consideration is whether Ex. P.-10 is not hit by Section 25 of the Indian Evidence Act, which runs as follows :
'No confession made to a notice officer shall be proved as against a person accused of any offence.'
This section being unconditional and absolute, exclude from evidence all statements made to police officers by accused persons, which are in the nature of confessions. Here again, as this is a limiting section encroaching upon the normal rules of evidence, it must, in our opinion, be construed strictly. In my considered view, the prohibition contained in Section 25 is only in respect of proving confession and that too against persons accused of any offence.
It is true that, in his case, the appellant was an accused person at the time Ex. P-10 is sought to be proved and put into evidence. But if either a statement does not amount to a confession or if portions thereof do not amount to a confession, there is no objection to receiving them in evidence. Again, if there are portions of the statemen which are sought to be used for and in favour of an accused person, such use of the portions of the statement is not excluded by Section 25 of the Indian Evidence Act. Applying these principles to the present case, that portion of Ex. P-10. which is not In the nature of a confession, can certainly be received in evidence.
Again, in respect of those portions of the statement which are confessional in character, so long as the use of such portions is made in favour of the accused as for example where it contains an excuse for committing a crime which if believed may either serve to mitigate the offence or exculpate the accused then such portions can be received in evidence. Reading Ex. P-10 carefully, the only portion that has to be excluded is the last lines thereof, namely.
'Then I gave a slap to Bootla Venkati who went and fell at a distance. Then I took a roof-bolt and beat Venkati who subsequently died.'
22. The learned Counsel for the appellant contends that Ex. P-7 is inadmissible in evidence under Section 27 of the Indian Evidence Ac'. He contends that, in the first place, it cannot be held that there was recovery of the roof-bolt because it was recovered from the house of the appellant which, on a proper investigation, would have been found by the police anyhow, and secondly, having regard to the decision of the Privy Council in AIR 1947 PC 67, the only portion of the statement of an accused person that could be received under Section 27 of the Evidence Act is 'the roof-boll x x x x is in my house' and the rest should be excluded. Section 27 is a proviso to Section 26 of the Evidence Act and they run thus :
'26. No confession made by any person whilst he is in the custody of police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation in this Section x x x'
27. Provided that, when any fact is deposed to 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 a confession Or not, as relates distinctly to the fact thereby discovered, may be proved.'
23. It may be seen that Section 26 contains an unconditional bar to the use of confession made by accused persons in police custody, against them, unless they are made in the immedia'e presence of a Magistrate; Under Section 27, only so much of the confession as relates distinctly to any fact discovered in consequence of such confession may be proved. It may be seen from the above that unless the statement or confession of an accused person made to a police officer which is sought to be used against him at the trial falls within the four corners of Section 27, it would be excluded either under Section 25 or Section 26 of the Evidence Act or under Section 162, Cr. P. C. It is therefore necessary that Section 27 has to be carefully studied. The scope of this section was the subject-matter of the decision AIR 1947 PC 67 at p. 70. At page 70 of the report, their Lordships, after quoting Sections 25, 26 and 27 observed as Follows :
'Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to and thereupon so much of 'the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence: but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the 'fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him, in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27. little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody, that ban was presumably inspired by the fear of the Legislature that a person under police influence might he induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction, their lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view, it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which 1 stabbed A,' these words are inadmissible 'since they do not relate to the discovery of the knife in the house of the informal.'
As may be seen from the above passage, their Lordships of the Privy Council, while assuming that the extent of information admissible must depend on the exact nature of the fact discovered to which such information is required to relate, came to the conclusion that the fact discovered is not the physical object produced, that if the connection between the fact discovered and the offence is sought to be linked by the information given by the accused, little substance would remain in the ban imposed by Sections 25 and 26, on confessions made to the police by persons in police custody, that Section 27 should not be held to nullify these sections and that it is fallacious to treat the fact discovered as equivalent to the object produced.
Having so held, their Lordships began to describe what, in their opinion, is the fact discovered. In doing so, their Lordships observed that the fact discovered embraces (1) the place from which the object is produced and (2) the knowledge of the accused as to this and held that the information given by the accused and which could be received in evidence, must relate distinctly to these facts.
Considering the particular words used in that case by the accused, namely, 'I will produce a knife concealed in the roof of my house,'' 'heir Lordships observed that those words did not lead to the discovery of a knife as knives were discovered many years ago but that they led to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if subsequently by other evidence that knife is proved to have been used in the commission of the offence under trial, the facts discovered are very relevant.
Having so observed, they wound up by stating that 'if to the statement already quoted the words 'with which I stabbed A' be added, then these words are inadmissible, since they do not relate to the discovery of the knife in the house of the informant.' This observation pre-supposes that their Lordships have in mind that the discovery of the knife is part of the fact discovered.
24. Although their Lordships were dealing with a particular case in the context of the facts before them, still the example given by them clearly lays down a limitation on the scope of Section 27 and on the evidence of the information furnished by the accused which could be properly admitted as relevant. It is common knowledge that when an accused makes a statement under Section 27 of the Indian Evidence Act, which contains the information which leads to the discovery of facts, the statement or the information furnished by him is invariably linked with his admission either of the use by him of the weapon discovered against the victim, if what is discovered is a weapon, or of his participation in the crime to which the information and the discovery relate.
Taking the very sentence which their Lordships of the Privy Council considered in the above quoted case, namely, 'I will produce the knife with which I stabbed A and which had been concealed by me in the roof of my house.' if we eliminate the words ''with which I stabbed A'' by culling it out of the sentence, what remains is on the face of it irrelevant, because the balance of the sentence that is left does not purport to relate to the offence in question.
Before any piece of evidence can be accepted as a relevant fact, it must be relevant pro prio vigore and at the time the statement was received in evidence, it must itself be relevant under one or other of the sections of the Indian Evidence Act, which occur in the chapter of 'relevant facts.' Further, if in every ease the incriminating part of the information is to be eliminated because it would be a confession and as such the reception thereof would nullify Section 26, then it is difficult to envisage or imagine a case where the information would amount to a confession, for Section 27 in so many words contemplates that the information given is treated as relevant thereunder even when it amounts to a confession, by the use of the words whether it amounts to a confession or not.'
Heading Sections 26 and 27 together, the conclusion necessarily follows that the information taken as relevant under Section 27 could also amount to a confession and that it could not have been the intention of the legislature to exclude the information furnished by the accused which relates distinctly to the fact discovered and which is therefore relevant under Section 27 just because it amounts to a confession.
We would, further respectfully point out that the information contained in the words' 'with which I stabbed the deceased' or 'with which the deceased was stabbed' is information directly relating to the fact discovered, namely, that the knife with which, according to the accused the deceased was stabbed is hidden in a place which is known to the accused as having been placed there by him. If the information discovers the place from which the object is produced and also the knowledge that that place was known to the accused, of course it also discovers the knowledge of the accused that that weapon was the weapon concerned in the crime,
If the information given is to be correlated to the facts discovered, then that connection is equally established in the case of discovery of the fact that the weapon produced was to the knowledge of the accused the weapon used in the commission of the crime. I find it extremely difficult to exclude that part of the information which directly leads to the discovery of this material fact just because it amounts to a confession, when the section itself contemplates the reception of information even when it amounts to a confession.
25. We are no doubt bound by the ruling of their Lordships of the Privy Council and we respectfully follow it, but I have registered my doubts in this case, as I feel strongly that the decision, AIR 1947 PC 67, requires to be re-considered in the light of what I have seated above and the other legal implications.
26. We have thus two versions of the incidents appearing from the prosecution evidence itself, one in support of the prosecution case put) forward at the trial and the other put forward by the appellant as deposed to by some of the prosecution witnesses, the prosecution version being that the deceased, Venkati and the appellant got drunk, that the appellant began to bent his mother, Rajamma, by fisting her on the chest a number of time which ultimately resulted in her death, that, as the appellant was fisting and beating his mother, Bootla Venkati, the deceased tried to intercede at which the appellant got enraged and slapped him in the face and that on the deceased falling down, the appellant hit him with a roof-bolt on the head and other parts of the body causing very serious injuries that were noticed on his body and which ultimately resulted in his death.
It is also the prosecution case that having done these dastardly deeds, the appellant proceeded to the house of Venkati and pretending not to know anything that had happened enquired Veeramma, whether her husband, Venkati, was there and then informed her that Venkati was lying unconscious and dead-drunk at his (Appellants) place and that he should be taken away from there. After this, the appellant proceeded to the house of his relatives, informed them that his mother was dead and requested them to come to his rescue which they did.
When they arrived at the house of the appellant, they noticed the dead body of Bejjanki Rajamma and also Bootla Venkati, half naked, lying near the logs, senseless. Thereafter, they carried the deceased, Venkati, to the cattle-shed and was dressed with a drawer brought from the appellant's house and he was lying there groaning and nobody came to his rescue but was allowed to suffer a slow death in spite of the fact that several persons had gathered at the house of the appellant before Venkati actually expired on the morning of 27-6-1957.
The version of the prosecution evidence in so far as the death of Rajamma was concerned, was not accepted by the learned Sessions Judge and he recorded a finding of acquittal on the charge of murder in respect of Rajamma. In o'her words, the learned Sessions Judge did not accept the theory that it was the appellant who hit the deceased.
'Rajamma, and caused her death but accepted the evidence of the prosecution in respect of the version relating to the beating and the causing of the death of Venkati.
27. The appellant's version which appears at the earliest instance is deposed to by P.W.19 as follows :
'I asked him why these dead bodies are here and there. He said by the time he returned to his house Manda Rajam was in his house and that the accused had asked M. Rajam why these dead bodies were there and what had happened and, that Manda Rajam had toid him that M. Rajam was sleeping in a room and that Bootla Venkati was beating the old woman and that due to that noise M. Rajam woke up, and that Bootla Venkati was trying to commit rape on Rajamma and that Manda Ratam went and beat Venkati. The accused said that then he beat Manda Rajam giving him 4 or 5 blows. When accused was narrating 'his, Manda Rajam was not present. I asked the accused where M. Rajam had gone. Accused 'said, M. Rajam was there hut had absconded somewhere.'
It is also in the evidence of P.W.19 that the appellant came to the house of P.W. 19 weeping and told him that his mother was dead and that the appellant appeared in deep sorrow even after coming to his (P.W. 19) house. After this there is the complaint which the appellant made to the Sub-Inspector of Police (Ex. P-4A) in which it has been stated that on the night of 26-6-1957 between 10-50 and 11-30 p.m. the accused Bootla Venkati raped and murdered Rajamma, mother of the complainant.
According to this complaint, the admissibility whereof has been discussed above, when the appellant returned from the house of Bootla Venkati after informing his wife, Veeramma, about the drunken condition of Venkati, he found that his mother was raped and murdered by Bootla Venkati, The appellant then took a roof-bolt and beat Venkati who subsequently died. The evidence given by P. W. 5 that when he returned from his shift at about 11 or 11-15 p.m. and was about to take his bath he heard the appellant say 'Ammal Ammal Open the door' twice and then he heard the accused saying 'Arel Is mother dead?' lends support to the version favourable to the accused.
28. It may be noticed in this connection that the Sub-Inspector of Police went to the house of the appellant not to enquire into the murder of Bejjanki Rajamma of which he was not then aware, but only to investigate into the murder of Bootla Venkati, the husband of Veeramma. There is again the statement of the appellant recorded as Ex. P-7 which however, is not admissible In evidence against the accused as a confession, wherein he is alleged to have stated that on 26-6-1957 evening Bootla Venkati raped the appellant's mother and killed her, that seeing this the appellant beat him with a roof-bolt and tried to insert it in the anus with result he died on the morning of 27-6-1957 and that the roof-bolt which was used in the offence was in the appellant's house. Putting the various pieces of relevant evidence available in the prosecution evidence together, the version favourable to the appellant can be summarised as follows:
29. That Bootla Venkati and the appellant were making merry drinking, that Venkati became heavily drunk and was, apparently, making a nuisance of himself which made the appellant proceed to the house of Venkati to inform his wife about his condition, that when he came back he found that his mother was dead and lying naked on the cement slab, that he received information that Venkati had attempted to rape her and on her resistance he killed nor and that consequently the appellant slapped Venkati at which the latter fell down and alter this the appellant hit him with the roof-bolt.
30. As already pointed out, these two versions emanate from the prosecution evidence in the case. It is true that the appellant in his defence denies in toto his participation in the offences charged against him in this case, as appears from his replies to the questions put to him at the trill under Section 342, Cr. P. C. in the Sessions Court. He has, however, made the statement which had been reproduced earlier in this judgment.
31. In considering the guilt or innocence of an accused person, one has necessarily to judge the issue on the prosecution evidence alone, of course taking into account such admissions as the accused might voluntarily have made and which in law are admissible and could be taken as such admissions and the defence evidence, if any, produced by the accused.
To our minds, the prosecution version as well as the version favourable to the appellant appearing from the prosecution evidence as summarised above, are both capable of being regarded as possible on the materials placed before us. Obviously that version of the two which is more favourable to the appellant must be accepted by us, in the absence of clinching proof that the version put forward by the prosecution as their case is the only correct version.
We would, accordingly, resolve this doubt and possibility in favour of the appellant and proceed with the consideration of the case on the footing that the version appearing from the prosecution evidence which is more favourable to the appellant is the acceptable one. This will lead us to the following conclusions;
1. That the appellant did cause the death of Bootla Venkati with a roof-bolt.
2. That the injuries inflicted by the appellant are fatal and that he must have intended the death of the victim in causing these injuries'.
3. That, in any event, he must necessarily have intended to cause such bodily injury to Bootla Venkati as is sufficient in the ordinary course of nature to cause death.
32. In either view of the matter, the offence committed by the appellant falls within the scope of Section 300. I. P. C.
33. But the question is, could the appellant be said to have acted under circumstances which would bring his act of causing death within one or other of the exceptions to Section 300, I. P. C. If the story that when the appellant returned from the house of Bootla Venkati he was informed that Bootla Venkati had tried to rape Rajjmma, the appellant's mother, and that the mother was beaten to death and the appellant found the dead body of his mother lying naked and the appellant in the grave and sudden provocation which must have resulted from this discovery, hit and beat the deceased, Bootla Venkati as a result of which he died is accented and we have no doubt in our minds that the appellant apparently got this information suddenly and this information, in the nature of things, was highly provocative to any person, particularly when a friend of the appellant whom he had been entertaining in his house and 'proved so ungrateful as to attempt to rape his mother who was aged 65 years and also killed her in the process of satisfying his just even if it was under the influence of drink, we will have no difficulty in holding that the act of the appellant falls within exception I to Section 300, I. P. C. and accordingly we find him guilty of culpable homicide not amounting to murder punishable under Section 304 (Part I) I. P. C.
34. We accordingly set aside the conviction of the appellant on the charge under Section 302, I. P. C. as well as the sentence of imprisonment for life passed against him by the learned Sessions judge and convict him of the offence of culpable homicide not amounting to murder, punishable under Section 304 (Part-I) I. P. C. and sentence him to rigorous imprisonment for seven years.