Srinivasa Chari, J.
1. Being a criminal case of murder where some of the accused have been sentenced to death and the case having come to us for confirmation of the sentences of death I ought to express my opinion about the case separately,
2. These are three cases of confirmation and nine cases coming up in appeal on behalf of the accused who stood their trial before the Sessions Judge, Parbhani, on charges of conspiracy and murder.
In these cases accused Nos. 1 and 2 have been sentenced to death under Section 302, Penal Code, and they are represented by Shri Nandapurkar. Accused 8 has also been sentenced to death under Section 302 read with Section 109 and he is represented by Shri Peerbhoy while accused 3, 4, 5, 6 and 7 have been sentenced to transportation for life having been convicted under Section 302 read with Section 109. These accused are represented by Shri Deshmukh and Shri Nandapurkar. Accused 9 also has been sentenced to transportation for life for offence under Section 302 read with Section 109 and he is represented by Shri Mur-tuza Khan. We heard the arguments of the respective-counsel in detail.
3. The facts of the case as alleged by the prosecution are that on 29-8-1954 after sunset and after it had become dark in a field called Vithbha's field which is half a mile from a village called Kothala, Patri Taluq, Parbhani District, the aforesaid accused assembled together, surrounded the deceased Shanker and accused 1 and 2 Anna and Saheb inflicted blows with axes on the head of Shanker in consequence of which he died'.
The first information report with regard to this was issued on 30-8-1954 which reached the Court on the 31st. An inquest was made of the body on the same day. Two charges were filed one on 8-10-1954 charging accused 1 to 7 of the murder of Shanker resulting from a conspiracy and the 2nd was filed on 1-11-1954 bringing in accused Nos. 8 and 9 and charging them under Sections 120-B, 302 read with Section 34, I.P.C.
These accused were committed to Sessions and the Sessions Judge with the help of three assessors held them all guilty of the charges against them and inflicted different punishments as stated above. The prosecution examined 21 witnesses while the different accused led defence evidence on their behalf individually.
4. It would be convenient to deal with the cases of the different accused separately and discuss about the evidence pertaining to them. The accused 8's and 9's cases stand on a different footing from those of accused 3 to 7 while the cases of accused 1 and 2 stand on a separate footing altogether. I will dispose of the cases of accused 8 and 9. Learned Counsel for accused 8 while taking us through the evidence invited our attention to certain legal flaws which according to him vitiated the trial.
The first contention was that there was no charge framed against the accused in the Sessions Court under Section 120-B; what was done was only the reading of the charge framed by the committing Magistrate. This argument does not appear to me to be an argument going to the root of the case. Section 210, Criminal P.C. in my opinion, is a complete answer to this contention. The charge is framed only by the Magistrate and it would be open to the Sessions Judge to alter, modify or add to the charge.
In the printed paper book at page 30 appears a reading of the charge by the Sessions Judge on 3-1-1955. The charge was read over and the accused asked as to what he had to say. He pleaded not guilty and claimed trial. The endorsement also shows that the plea of the accused was recorded after a translation from Marathi to English and the statement contained the full statement of the accused.
In this connection Section 226, Criminal P.C. also may be referred to which says that where a person is committed for trial without a charge or with an imperfect charge the charge may be altered or added. In my opinion not framing a fresh charge in the Sessions Court is not an illegality which would vitiate the trial which could always be condoned under Section 537, Cr. P.C.
(a) The next argument was that there were no specific questions put to the accused under Section 342, Cr. P.C. with regard to the case of conspiracy against them and it was urged that that had occasioned) miscarriage of justice. The importance of putting questions to the accused and bringing to him Every circumstance in the evidence of the prosecution against him has been time and again emphasised by the Supreme Court commencing-from the decision in the case of 'Tara Singh v. The State' : 2SCR729 to the case of 'Pandurang v. State of Hyderabad 1955 SC 21ft ((S) AIR V42) (B).
The object of putting questions is merely to give the accused an opportunity to explain the circumstances appearing against him. The test laid down by the Supreme Court with regard to the questions under Section 342 is that the Court must be satisfied whether the non-putting of a particular question has caused prejudice to the accused-It is not any kind of error in the examination of the accused under Section 342 that would vitiate the trial. It will depend upon the degree of the error.
I might refer in this connection to the observations of their Lordships of the Supreme Court in the case of 'Bejoychand Patra v. State of West Bengal', : 1952CriLJ644 . The examination of accused 8 appears at page 72 of the paper book. A detailed questioning has been made adverting to the prosecution evidence which comprised of the statement of Pirajl, Baji Rao and others and a question was asked as to whether he arranged for the murder of Shanker.
In fact the substance of the statement of the witnesses had been placed before the accused. I do not think that there has been an error or anything wanting in questioning this accused in so far as the charge against him of conspiracy was concerned. He understood the Question well and answered the same. This argument therefore is of no avail.
(b) The questions of law having been disposed' of I will now advert to the evidence in the case in so far as accused 8 and 9 are concerned because both of them sail in the same boat. The witnesses who have been examined on behalf of the prosecution with regard to the conspiracy are P. Ws. 19 and 20 as well as P. Ws. 10 and 11.
The prosecution has tried to make out a case that there were two conspiracies, the first was prior to Padva and after Holi. This fixes the time as somewhere between 18th March 1954 and 3rd April 1954. The actual date has been fixed by the statement of PW. 19' who says that the conspiracy was 8 days after Holi, That takes us to 26-3-1954. The second conspiracy is said to have taken place 8 days prior to the date of occurrence. The date of occurrence being 29-8-1954, 8 days prior to the occurrence would take us to the 21st of August.
(c). P. Ws. 19 and 20 have come to speak about the alleged conspiracies. P. W. 19 says that he was serving as an Accountant under accused No. 8. He says that he was writing the accounts of the business when the accused Nos. 1 to accused 7 went to accused 8's house at about 9 P.M. on a day prior to Padwa and after Holi. He goes on to state that Bansi accused 8 called upon those assembled to see that Shanker was done away with as he was meddling with Pansi's affairs. This' witness says that all the accused agreed and went away.
15 days after this occurrence, the witness says, his services were dispensed wit. But he says that nevertheless he used to visit Bansi's house and at one such meeting that is about 8 days prior to the date of the murder these seven accused again came to Bansl and again the question of putting an end Jo the life of Shanker was discussed. Accused 1 undertook to complete the work within a fortnight. This witness also says that A. 9 was also present here and endorsed what A. 8 stated and wanted it to be done.
(d) P. W. 20 is one Gajaba. He is a witness only to the first of the two conspiracies. He says he was present when Bansi desired that Shanker should be done away with to which the accused assented. He objected to be a party to this doing and left. This witness does not speak about the question of the 2nd conspiracy.
(e) P. Ws. 19 and 20 are witnesses to the conspiracy. P. Ws, 10 and 11 are witnesses who speak about the fact of the accused after having committed come to report to A. 8 of their having finished the task. They say that they were present when the accused narrated to accused 8 the result of their achievement, P. W. 10 says that he had gone to A. 8 on business after Pola, that he stayed overnight when Accused l,'3, 6 and 7 entered the house and told accused 8 and 9 that they had removed the obstacle and when the assailant asked accused 8 and 9 as to what they would do for them they said that they would arrange for their release on bail.
P.W. 11 speaks of his having accompanied P. W. 10 to A 8's house when P.W. 10 & Bansi accused No. 8 had a talk. He does not give details. Therefore of the two alleged conspiracies P. W. 19 is the sole witness for the second conspiracy. For the more important is this conspiracy which was proximate to the occurrence, I have scanned the evidence and I feel that no charge of conspiracy under Section 120-B can be said to have been established on this meagre evidence.
So far as P. W. 19 is concerned there is no reason assigned as to why he visited accused No. 8's house on a particular night after his services had been dispensed with. The witness informs the intended victim Shanker of the contemplated murder. One cannot understand how far the statement could be true. If he had informed Shanker one would have expected Shanker to have guarded himself in view of the impending peril.
We would also have expected Shanker to go to Eansi and ask him as to why it was that he intended to kill him when he did no harm. It is also unnatural that the conspirators would have conspired and discussed about their plans well within the hearing of a person who was not or does not appear to have been privy to the conspiracy. If this witness P.W. 19 who says he was a good friend of Shanker knew about this conspiracy he should have prevailed upon accused 8 in whose services he was to refrain from being a party to the committing of the heinous crime.
P.W. 20 says that he would not be a party. But this witness although a friend of Shanker does not say anything, he does not move his little finger to avert the catostrophe. In order to lend support to the statement of this witness the prosecution has sought to examine the account books said to have been written by this witness.
In my opinion the accounts do not carry the case of the prosecution anywhere at all. I examined the account books. The entries in the account books are few and far between and there are no entries on particular pages. Under these circumstances it would be hazardous to rely upon these account books as supporting the statement of P.W. 19 and to foist the guilt of the charge of conspiracy upon the accused. The affirmative evidence led by the prosecution is therefore unsatisfactory.
(f) Accused 8 has pleaded alibi stating that during the period of 26-8-1954 to 17-9-1954 he was an in-patient in the Sultan Bazar Hospital undergoing treatment for peptic ulcer. The standard of proof required for establishing the plea of alibt is the same such as for the evidence on behalf of the prosecution.
Further, it must be understood that the failure on the part of the accused to substantiate the plea of alibi would not and cannot give rise to an inference that the accused was at the place of occurrence at the time when the offence is said to have taken place. This would have to be proved by the prosecution as any other matter.
(g) The witnesses who have been examined on behalf of accused 8 & 9 are D. Ws. 19 and 20. The former is a Doctor who speaks about his having been in the Hospital when accused 8 wan admitted as an in-patient. This evidence he gives by a reference to the Registers of the Hospital. As we found that there were no copies of the document on. the basis of which the doctor gave his evidence on the record of the file we summoned the doctor under Section 540, Cr. P. c, and examined him here, allowed the State Prosecutor to cross-examine him.
The doctor's evidence together with the records of the hospital which have been marked as Ex. C-l to C-4 Series by us clearly establish that accused 8 was in the hospital as an in-patient during the period of 26-8-1954 to 17-9-1954. The Register of in-patients and the bed ticket conclusively prove the same. The prosecution sought to throw some doubt on the genuineness of the entries in the records.
We are not at all inclined to believe that the Register in the Government Hospital would have been manufactured and got up to help these accused. The record has been maintained in the usual regular working of the hospital. On this evidence I hold that accused 8 has conclusively established the plea of alibi. The State Prosecutor urged that the plea was not taken up at the very first stage. That circumstance would be relevant in my opinion where the evidence is of a doubtful character.
In a case like this where evidence of alibi is not based on the mere oral testimony of witnesses but there are documents to substantiate the fact, the fact that the plea was not raised at the first stage would not matter. The prosecution could very well have rebutted the evidence if they were so sure of the presence at Somthana of the accused, by leading rebutting evidence. The prosecution has failed to do so.
(h) There is little or no evidence against accused 9 excepting the stray statement of P.W. 19 that accused 9 repeated what accused 8 said. Thi3 Statement of the witness is believed because in his cross-examination he says that he did not depose before the Sailu Court that Kashinath accused 9 has said anything. The learned Sessions Judge while he does not say in so many words that conspiracy is proved, says that it might be inferred by collateral acts. He relies upon an existing enmity between accused 8 and 1 and the deceased.
Even if there was enmity between accused 1 and the deceased no reasons have been shown as to why accused 2 to 7 actively interested themselves in the act. There is no proof of any consideration. It may be that the murder has been carried out at the instance of accused 8 and he has been behind the screen. But conjectures cannot take the place of proof in criminal cases. Any amount of suspicion cannot be the basis for holding a person guilty. The proof should amount to a moral conviction. I am, therefore, of the opinion that accused 8 and 9 are entitled to an acquittal.
5. I have now to deal with accused 1 to 7 who have been charged under Section 120-B & Section 302 read with Section 34, Penal Code. The charge under Section 120-B has been held to be not proved and therefore such of those accused as did' not participate in the murder or who could not be roped in under Section 34 would also come out. These are accused Nos. 4, 5 and 6. Then we are left with accused 1, 2, 3 and 7.
6. Accused 1 and 2 are said to be the actual assailants who struck blows on the head of Shan-ker with axes while accused 3 and 7 are said to have dealt blows with lathis on P.W. 3 when he tried to intervene. The evidence on behalf of the prosecution would fall mainly under two categories: (a) testimony of eye-witnesses and (b) circumstantial evidence, the testimony of the witnesses who saw the accused in the bazar just before the occurrence.
The eye-witnesses are P.Ws. 2 and 3, Ambad-as and Bajirao. Ambadas, it may be stated, turned hostile in the Sessions Court and stated that he could not say what weapons were used to strike Shanker although he made a statement before the committing Magistrate that he had witnessed Shanker being given axe-blows by Anna and Saheb accused 1 and 2.
The prosecution sought to rely upon his statement before the committing Magistrate as it had been made part of the record in the Sessions Court under Section 288, Cr. P.C. Objection was taken on behalf of the accused to the statement of P. W. 2 before the Committing Magistrate being relied upon as substantive evidence in the case. The ground of attack was that the provisions of Section 288 had not been conformed to.
7. Section 288, Cr. P.C. reads as under:- 'The evidence of a witness duly recorded in the presence of the accused under Chapter 18 may, in the discretion of the presiding Judge, if such witness is produced and examined be treated as evidence in the case for all purposes, subject to the provisions of the Indian Evidence Act, 1872'. That the statement of this witness was made part of the record is clear from the proceedings before the Sessions Judge, dated 3-1-1955 by an order passed on an application made in this behalf by the prosecution. The Judge thereby exercised the discretion in making it part of the record.
What is required under Section 288 in order to make the evidence in the committal Court substantive evidence, is that the witness should be confronted with the previous statement. I might in this connection refer to a decision of the Supreme Court in the case of : 2SCR729 . While discussing about the purpose and the import of Section 288 his Lordship Bose J. observed:-
That the evidence in the committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by Section 145, Evidence Act....
The matter has been mad(c) clear by the Supremo Court in a subsequent decision in 'Bhagwan Singh v. State of Punjab (I)', : 1952CriLJ1131 . Where a witness states in his examination in. chief something before the committing Magistrate and resiles from it in his cross-examination then the prosecution can rely upon the statement before the committing Magistrate in corroboration of what the witness stated in his examination-in-chief.
But where the witness states something different from what he stated before the committing Magistrate, even in the examination-in-chief, if the prosecution wants to use the statement as substantive evidence such of those statements of the witness before the committing Magistrate would have to be put to him and Question asked. In this case I find that the deposition of the witness before the committing Magistrate that he witnessed Shanker being given axe blows by Anna and Saheb was put to him specifically and his statement taken,
No doubt he stated that he stated so under the pressure of the Police. I am of opinion that in this the witness tried to prevaricate, The test laid down by the Supreme Court in the case referred to has been satisfied in my opinion in the present case and there can be no objection to the evidence of P.W. 2 being relied upon in so far as accused 1 and 2 are concerned.
8. P.W. 3 is another eye-witness and in fact the most important witness for the prosecution. He says that he was proceeding with Shanker, the deceased, and Ambadas, when he met accused l, 2, 3 and 7 and 6 in the bazar at Khotala. He further says that Shanker returned before sun-set and Ambadas also; that on the way at Vithoba's field he says that accused 1, 2, 3 and 7 came from the western side and accused 2 levelled the axe to strike a blow on Shanker's head and accused 1 hit with the axe on Shanker's head and that when he tried to prevent he was hit by accused 3. He also says that three others came from rear side. He further says that accused 3 and 7 gave him lathi blows in consequence of which he swooned and after he regained consciousness he found Shanker girgling and bleeding from the head.
This witness says that the deceased was carried away in a cart to his house. As regards the testimony of this witness it was urged that he could not be believed; that he himself had a hand in the offence and that he was trying to take it off his head. This argument cannot be sustained as no question were put to him to suggest that he might have had a hand in the murder. There Is no reason why this witness should not be believed.
No enmity has been proved between this witness and the accused. P.W. 1 and 18 both of them speak to the fact that they saw this witness sitting by the side of the corpse of Shanker. His statement together with the statement of P.W. 2 completely establish the case that accused 1 and 2 dealt blows on Shanker with axes, A point was made that the evidence relating to the recovery of the axes was inadmissible as it was hit by the ban under Section 27, Evidence Act.
The evidence in this regard consists of two exhibits, Ex. P. 20 which relates to the recovery of the axe at the instance of accused 1 and Ex. P. 16 which relates to the recovery of the axe at the instance of accused 2. The words which accused 1 is said to have uttered before the punch were '22 days ago on Sunday after sun-set in the field of mali patel of Khotala the axe with which I dealt blows to this late Shanker, son of Nana, resident of Somthana & my blood-stained clothes have been kept in hiding by me in my residential house'.
The punchanama says that he entrusted this axe stating that 'this is the same axe with which I struck blows on Shanker the slain'. Accused 2 is said to have stated 'the axe by which I inflicted blows on Shanker son of Nana, Somthana, is kept concealed by me in my house' vide page 16. Under Section 27, Evidence Act, so much of the information as strictly relates to the discovery of facts is admissible. This section is an exception to the prohibition imposed by Sections 25 and 26 Evidence Act. This has been a ticklish point.
Discussion has centered round the point as to where the statement of the accused partakes of a nature of confession and if a portion of such a statement leads to a discovery of certain facts whether the whole statement should be ignored. The difficulty would arise where the admissible portion of the confession as is allowed under Section 27, Evidence Act, is so mixed up with the inadmissible one that the two cannot be separated without modifying the language in which the confession was made by the accused. In a case decided by the Madras High Court in Sogiamutu Padayachi v. Emperor' 1926 Mad 638 (AIR V 13) (E) the statement of the accused was to the following effect.
The properties stolen from the math are buried by me or others in such and such a place.
The learned Judges held that this statement was admissible under Section 27, Evidence Act.
Likewise in the Full Bench case of Sukhan v. The Crown 1929 Lah 344 (AIR, V 16). (PB) (P) the learned Judges held that that portion of the statement of the accused which led to the discovery al-though it was part and parcel of a bigger statement incriminating himself, was admissible. The accused stated
I had removed the karas, had pushed the boy into the well and had pledged the karas with Allauddin.
The learned Judges separated the incriminating statement and held that the other portion of the statement which led to the discovery was admissible in evidence.
The Bombay High Court in the case of Ganu-chandra v. Emperor 1932 Bom 286 (AIR V 19) (G) held that only that statement of the accused which stated that he would point out the place where the property was buried was admissible and that the other portion as to his having stolen in the dacoity must be excluded on the ground that they were not necessarily connected & did not relate to the discovery of the property.
The matter was the subject of judicial pronouncement by the Privy Council in the case of Pulukuri Kottaya v. Emperor. 1947 PC 67 AIR V 34 (H). In that case the accused said 'I will produce a knife concealed in the roof of my house. Their Lordships held that this statement led to the discovery of the fact that a knife is concealed in the house and if the knife is proved to have been used in the commission of the offence the fact discovered is relevant. But they observed that if to this statement the words be added 'with which I stabbed A' these words are inadmissible.
This decision clearly indicates that it is always permissible to admit that portion of the evidence in the statement under Section 27, Evidence Act, which merely leads to the discovery of any fact. Any other incriminating statement combined with that should be ignored. The fact that both these statements are part of one statement given by the accused would not make that portion relating to the discovery inadmissible in evidence.
Coming nearer home we have the decision of the Supreme Court in the case of Ram Kishen v. Bombay State : 1955CriLJ196 where Bhagwati, J, in delivering the judgment of the Court observed:
Where, however, any fact is discovered in consequence of information received from a person because 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.
For these reasons I am of opinion that the statements of A. 1 and A. 2 in Exs. P. 20 and P. 16 as pertains to the discovery of the axes are admissible. The weapons used by accused 1 and 2 having been recovered at their instance, there being evidence of the actual hitting with the axes by accused 1 and 2 in my opinion they must be held to be guilty of the murder of Shanker under Section 302 I.P.C. As regards the sentence to be inflicted on them I shall deal later.
9. With regard to accused 3 and 7 they are made liable because of Section 34, Penal Code. It was urged by the prosecution that common intention was established in so far as these accused are concerned, that therefore they also should be held guilty of the murder. In order to come to a conclusion of common intention and to hold a person guilty for the act of another there ought to be prearranged plan and the act must have been done in furtherance of the common intention.
No doubt the Supreme Court has held that the plan may have been made on the spot. There is no lag of time necessary for a prearranged plan. In this connection suffice it to refer to the case of : 1955CriLJ572 . The conspiracy against Shanker has not been proved. There was no prior meeting of the minds to constitute common intention. Always the intention has to be gathered from the particular facts of each case.
As observed by the Privy Council in the case of Mahboob Shah v. Emperor, 1945 PC 118 (AIR V 32) (J) inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. What are the acts that are attributed to accused 3 and 7?. They are said to have beaten P. W. 3 with lathis when he tried to prevent Shanker being dealt with blows. A positive case was made by the prosecution that accused 3 and 7 were active parties to a conspiracy to murder Shanker. There they failed.
Where therefore the preconcert has not been proved I am not inclined to infer common intention by the mere fact that these accused dealt blows on P. W. 3 with lathis. I am supported in this view of mine by the observations of Jagannadhadas, J. in Kripal v. State of U.P. : AIR1954SC706 at p. 711 where his Lordship came to the conclusion that by reason of the fact that two of the assailants inflicted blows with lathis was not enough to attribute common intention to them to kill the deceased. These accused Nos. 3 and 7 would, therefore, in my opinion be liable for their individual acts.
According to the Medical Officer's report Ex. P. 5 there were two simple wounds and one grievous hurt and this report has been proved by the doctor, P. W. 17. I would hold these accused guilty under Section 326, I.P.C. and sentence them to regorous imprisonment for five years.
10. The result of this will be that the conviction for murder in so far as accused 1 and 2 are concerned is upheld and they are sentenced to transportation for life. I am not awarding the extreme penalty of law, viz., death, because it is not clear as to on account of whose blow death was caused. The motive also is not clear. Accused 3 and 7 are convicted for grievous hurt and simple hurt and sentenced to undergo rigorous imprisonment for five years, and one year, the sentences to run concurrently.
Accused 4, 5 and 6 as also 8 and 9 are acquitted of the charges of murder and conspiracy. They Shall be released forthwith if they are not required in any other case. The material objects be disposed of as directed by the Sessions Judge. Accused 3 Sanjib shall surrender his bail, and he be taken into custody.
11. This judgment will govern the confirmation cases of accused 1, 2 and 8 and the appeals of accused 3, 4, 5, 6, 7 and 9.
Siadat Ali Khan, J.
12. This is confirmation case No. 9 of 1955 together with criminal appeals Nos. 99-107 of register No. 6 of 1955 against the judgment of the Sessions Judge, Parbhani, dated 25-1-1955, by which for the murder of one Shanker, A-1 Anna, A-2 Saheb and A-8 Bansi have been sentenced to death while A-3 Sanjab, A-4 Aba, A-5 Madhav, A-6 Munja, and A-7 Narayan have been sentenced to transportation for life. The file is forwarded for confirmation of death sentence and all the accused Have appealed also. We have heard the argument of the learned advocates of the parties. This judgment will cover the appeals also.
13-16. (After stating the facts and referring the evidence the judgment proceeds as under:)
17. The learned Counsel for A-8 argued further that under Section 44, Cr. P.C. a person who is aware of the intention of the commission of a serious offence like murder and does not lay information to the nearest Magistrate or the Police Officer, is guilty of an offence.
He has cited authorities to show that such a person is practically a consenting party to the crime & an accomplice and that under the Indian Evidence Act, though a conviction can be based on the uncorroborated testimony of an accomplice, still there is the rule of practice, as authoritative as any other provision, that it is not safe to base conviction on the uncorroborated testimony of an accomplice.
He has argued further that as Gajiba did not lay any information he was also an accomplice; that it has been laid down by the Privy Council in Mahadeo v. The King 1936 PC 242 (AIR V23) (L) that an accomplice cannot be corroborated by the evidence of another accomplice and, therefore, Gajiba does not corroborate Kondiba as regards the first conspiracy and regarding the second conspiracy Kondiba is the only witness and is, therefore, not corroborated at all, and that the second conspiracy alone is important as A-8 was charged for it alone.
In our opinion there appears to be no reasonable excuse for these two witnesses for not informing authorities, and, hence, on this ground also the evidence of Kondiba and Gajiba stands discredited. This means that appeals of A-8 Bansi and A-9 Kasinath merit acceptance and they are, therefore, acquitted,
17a. If the evidence of conspiracy Is to be discarded, we have to consider what is the evidence against A-1 to A-7. Prom this point of view, these seven accused fall into three groups. The first is of A-1 and A-2, the second is of A-3 and A-7 and. the third is of A-4 to A-6. We begin with A-1 and A-2.
18. Regarding A-1 and A-2 there is the clear deposition of Baji Rao P. w. 3. He had accompanied the deceased from the Bazar at Kowthala. He was walking side by side with the deceased when the attack was made on him. He had deposed that he clearly recognized the assailants as he intervened and received an injury on a finger.
He has deposed further that A-3 and A-7 had hit him with sticks on the body at which he fell down unconscious; that when he came to senses there was nobody except Shankar the deceased, who was seriously wounded; that he got up and went near Shankar who was making a gurgling noise and was bleeding from the head; that he remained by his side for the few moments in which P. W. 18 Peeraji on the information of P. W. 2 arrived with help and all of them took Shankar on a cart to his house where he died.
There is hardly any reason for not placing reliance on this witness. He is supported by P. W. 2's deposition in the Court of the committing Magistrate which was brought on record and treated as evidence in the Sessions.
19. P. W. 2 fully corroborated P. W. 3 in his deposition in the court of the Committing Magistrate, but in the Sessions Court he even denied having seen Anna and Saheb striking at the deceased Shankar, He was, therefore, regarded as a hostile witness and with the permission of the Court was cross-examined. An application was put up on the very day, i. e., 3-1-1955 for bringing on record his deposition under Section 288, Cr. P.C. and his deposition in the Court of the Committing Magistrate was brought on record.
It was argued on the authority of : 1952CriLJ1131 , and : 2SCR729 , that his deposition before the Court of the Committing Magistrate could not be treated as substantial evidence in respect of A-3 to A-7; for, as the prosecution was contradicting him it was necessary under the provisions of Section 145, Evidence Act, that the portions in which he had deposed against A-3 to A-5 should have been brought to his notice.
This will show that even the defence counsel conceded that a portion of the evidence regarding A-1 and A-2 was brought to his notice. A perusal of the deposition in the Sessions will show that this is correct and that the whole of the deposition before the Court of the Committing Magistrate was read out to him and he admitted that it was his statement, but said that it was not true as he had given it under intimidation by the Police. He has explicitly stated in the Sessions that he did not say in the Court of the Committing Magistrate that Anna and Saheb and five or six others beat Shankar the deceased.
But this is wrong, as in his previous statement before the committing Magistrate, with which he was confronted and the whole of which was read out to him, he has stated, name by name towards the end of the first page and in the second page that Anna and Saheb and A-3 to A-7 formed the party which attacked the deceased and his companions. In this way, the requirements of Section 145, in our opinion, were complied with, & his deposition in the Court of the Committing Magistrate can be relied on as evidence against A-3 to A-7 also, as, admittedly it can be relied on against A-1 and A-2.
But if as a matter of abundant caution his deposition is even ignored P. W. 3 Baji Rao has clearly identified A-1 and A-2 and there is no reason to disbelieve him. Their names appear in the F.I.R. and the inquest report which reached the Court on 31-8-1954 from the very beginning. Baji Rao is borne out by the medical evidence also. He said that the deceased was attacked on the head with axes by both the accused and the inquest and the post-mortem reports detail several wounds on the head.
Blood-stained axes were recovered at their instance and from their houses the very next day alter the occurrence. No doubt the occurrence took place in the darkness after the sunset. But the place of occurrence was a farm. P. W. 3 states that visibility was clear to the extent of 25 paces and that when A-1 and A-2 struck at the deceased he was only 15 paces away.
Thus, there appears to be no reasonable doubt in the guilt of A-1 and A-2. We are satisfied that no prejudice has been caused by the questions put to A-1 and A-2 as it appears from their replies that they were fully aware of what prosecution witnesses, especially Baji Rao has deposed against them. They were charged fairly and squarely with Section 302: and that charge has been brought home.
Exs. P, 16 and P. 20 no doubt contain some inadmissible evidence along with the statements about the discovery of the blood-stained axes; & the same was repeated by the punch P. W. 16. This should not have been recorded. Yet it would be too much to hold that the discovery itself is vitiated. Thus, on a careful consideration oil the entire record we are satisfied that A-1 and A-2 have been rightly convicted. We dismiss their appeal against conviction.
We now pass on to A-3 and A-7. The evidence against them again is that of P. W. 3 Baji Rao. He has deposed that when he intervened to rescue the deceased he received an injury on his left hand little ringer from the axe and A-3 and A-7 beat him with a stick. The medical evidence Ex. P. 5 (p. 129), proved by the medical officer, fully bears this out. And even though it was dart:, yet as Baji Rao was belaboured with sticks, he had every opportunity to identify them in the light of the sky.
The absence of their names from the F. I. R. and the inquest report is accounted for from the fact that the first information did not emanate from Baji Rao P. W. 2. Ambadas first informed P. W. 1, Limbaji, and it was he who at the instance of the deceased's father, laid Information with the Police at Manwat. Limbaji states that P. W. 2 did not mention to him any names except those of A-1 and A-2. '
The defence witnesses on behalf of A-3 (DWs -15-17) speak of estranged relations between A-3 and P. Ws. 1 and 3, and those on behalf of A-7, (DWs. 25 and 26) speak to his alibi. This evidence is simliar to the defence evidence adduced by A-1 and A-2. D. Ws. 12 to 14 have deposed to the alibi of A-1 while D-Ws-1 to 3 to the alibi of A-2, The statements of these witnesses were not definite as to the dates when A. 1 and A. 2 or A. 7 were away from Somthana.
The reasons for the estranged relations are also petty and some had happened years ago. The learned Sessions Judge has, therefore, not accepted their evidence and we agree with him. We are, therefore, satisfied that A-3 and A-7 are also guilty.
20. There remain A-4 to A-6. No specific acts of these appellants have been deposed to by P. W. 3. He has also denied mentioning their names to the Investigating Officers. Their names do not appear in the P. I. R. No doubt they appear in Ex. P-9, dated 30-8-54 which is the panehnama of the scene of occurrence.
P. W. 21 Shankar Rao, the Investigating Officer, has deposed that it was the 1st panchnama he prepared after reaching the place of occurrence; but it should be noted that it was forwarded to the Court with the chalan on 16-10-1954. Evidently it does not carry weight. It is clear, therefore, that there is no evidence against these accused. We allow their appeals and acquit them.
21. I may mention that there appears to be hardly any evidence of pre-planning and therefore, Section 34, I.P.C. also cannot be invoked. Moreover, the Supreme Court has held in Ganesh Prasad v. Narendra Nath Sen : AIR1953SC431 that when conspiracy is disproved common intention cannot be inferred on the same evidence.
22. The question of sentence remains. Botli A-1 and A-2 have been sentenced to death. In the circumstances of the case and especially as it is not clear from whose blow the death was caused, we incline to commute their death sentences to transportation for life. And as A-3 and A-7 Inflicted simple and grievous hurt on Baji Rao only, we convict and sentence them for grievous and simple hurt to 5 years and 1 year R. I. each. These sentences to run concurrently.
23. As already stated, A-8, A-9 and A-4 to A-6 are acquitted. The appeals of these 5 accused are, therefore, allowed. The appeals of the appellants 1, 2, 3 and 7 are disallowed except as regards sentence as mentioned above. The material objects in the case should be disposed of as directed by the Sessions Judge. A-3 Sanjib will surrender ball to serve the term given him.