Anna Chandy, J.
1. These appeals by the accused and the reference tor confirmation by the Sessions Judge arise out of the judgment condemning the first appellant to death and the second to life imprisonment, for murdering the first accused's brother Alavi on 1-4-1961 at about 10.30 P. M.
2. The first accused Mohammed, and his younger brother, the deceased Alavi, the two sons of P. W. 9 Aydro were living together with their parents and sister and her children including P. W. 4. P. W. 9 the father was an agriculturist assisted by Alavi and not helped by the first accused who had a trade of his own in cashew-nuts. Disliked by the parents, brother and sister the accused soon became a 'terror' in the house, beating the sister and brother and demanding the management of all the properties for himself and his children. The aged father P. W. 9 approached mediators in vain and finally sent a petition (Ext. P-1) to the Sub-Collector, Malappuram against the first accused and his wife on 22-24961 to take steps to bind them over for keeping the peace and the police enquired into the matter and warned the first accused. On the date of incident, i. e., 1-4-1961 at about 4 P. M. the deceased plucked a jack fruit and shared it with P. W. 4 and the children of the first accused. The wife of the first accused did not allow her children to eat the fruit which led to a quarrel between accused 1's mother and wife. The first accused also refused to share the jack fruit when it was offered to him by his mother on his return. Towards the evening the deceased went to the Cherode Bazaar to purchase samans.
On that day there was the marriage of P. W. 7 and about six or seven persons including P. Ws, 1, 2, 4 and 7 when returning at about 10 P. M. from the marriage house, heard the deceased groaning and asking for water. He was found with only an. underwear stained with blood on the foot-path near the house of P. W. 1. P. W. 2 then sent P.W.4 to P.W. 9 to tell him about what they saw. The father on arrival found Alavi dead in the foot-path. He returned home and being tired laid down himself down to rest. The Village Munsiff was contacted by the two accused and accused 1 gave Ext. P-6 First Information Statement. Next morning the police preceded by the Village Munsiff reached the place and started investigation which was eventually completed by the Circle inspector who laid the charge on 18-4-1961 against the two accused. The second accused is a Harijan cooly in the service of A-1. On Thursday preceding the date of the incident he quarrelled with Alavi. Alavi tried to beat him and he threatened Afavi with a chopper.
3. The factum of death of Alavi, the younger brother of accused 1 is amply proved and is not disputed. The death is stated by P. W. 11 who conducted the autopsy to be due to the penetrating injuries to the heart and lungs. In Ext. P-2 the post-mortem certificate, fifteen ante-mortem injuries are noted. Of these nine are incised injuries and injuries Nos. 9 to 13 have penetrated the heart and both the lungs. They are necessarily fatal and death could have occurred within two or three minutes after sustaining them.
4. The accused raised a plea of total denial and stressed that the death of Alavi might have been caused by some of his numerous enemies in the locality, his divorced wife's people, being the mare prominent among them.
5. The prosecution relies on the testimony of P. W. I, the solitary eye-witness, the dying declaration made by Alavi to P. Ws. 1 and 2, the recovery of M. O. I dagger as per information given by accused 2 and the evidence of motive based on Ext. P-1 petition enquired by the police to prove their case.
6. If P. W. 1 is an 'entirely reliable person' his evidence would have clinched the issue, but he is not. He swears that while he was returning after the marriage in the company of P. W. 7 the bridge-groom, P. Ws. 2, 3 and 4 and others at about 10 P. M. he heard a groaning sound from the northern side of the foot-path and found Alavi sitting there with only a blood-stained underwear on Alavi wanted some water and to be removed to his house. P. W. 2 sent P. W. 4 the nephew of Alavi who was with them to the house of Alavi to report the matter to his parents. Then he and P. W. 2 alone went nearer Alavi and asked him as to what had happened, Alavi said that
'while he was coming from Cherode Bazaar accused 1 and 2 pelted him with stones, chased him and caught him and took him to the Paramba higher up and accused 1 stabbed him with a knife. When they heard the sound of approaching foot steps they left him there and went up the Paramba. He said he came crawling to that place.' He took fright and sent to his house leaving. Alavi all alone without even giving him water. He was giving fodder to his cattle when he heard Alavi calling 'Umma' 'Umma'. Then he went to the northern side of his Paramba and saw the accused carrying Alavi seven yards up and placing him on the ground face down and accused I raising his hands and lowering it twice and accused 2 pressing Alavi's head. It appeared to him that accused 1 was stabbing with a knife. They then carried Alavi eastwards along the foot-path. He says he saw the act of stabbing from a distance of 52 yards and of carrying the body of Alavi from a distance of 45 yards.
7. The evidence of P.W.1 is not acceptable for more reasons than one. His conduct in leaving the place without rendering any help to the injured Muslim who asked, him for a little drinking water appears to be inhuman and unnatural. The explanation of the 'fear of the accused' does not credit to him or to the batch of six or seven able bodied and young Erand Muslims, out on the road after a sumptuous marriage-feast. The attitude of P. W. 4 is all the more strange and inexplicable, if he found his uncle Alavi groaning and demanding water he would naturally have approached him, ascertained who his assailants were, cried out at the top of his voice for help and would not have left the place without fetching water from P.W. 1's nearby house and giving it to his uncle. The most true and natural explanation for this seemingly cruel and unnatural behaviour is that the party found only the dead body of Alavi on the way back from the marriage house. This carefully concealed fact was blurted out by P. W. 4, the nephew of the deceased. Wittingly or otherwise he told the truth in cross-examination, that when he returned from trie marriage house he saw the dead body and then P. W. 2 asked him to meet his grand-father and inform him about it.
An unsuccessful attempt is made to get over this completely damaging admission by the nephew by putting it down as a mistake. Of the nine incised injuries sustained by Alavi injuries 9 to 13 are the fatal ones and they are all on the back, the rest of the incised wounds being below the right nipple, the left lower chest, the left lumbar region and on the back of the left arm. In Ext. P-10 the Circle Inspector has noled that M. O. 4 baniyan belonging to the deceased had five tears on the back all of which appeared to have been caused by stabbing and the front torn upside-down. The existence of five tears on the back of the banian shows that Alavi must have received the fatal injuries before he crawled near to the bamboo cluster where the witnesses found him without the banian and with only the underwear on.
According to the doctor Alavi could have survived only two or three minutes after he sustained these injuries which penetrated the heart and lungs. This would go to negative the truth of the prosecution case that Alavi was in a position to make a narration regarding his assailants and the nature of the attack and confirms the truth of the inadvertent admission made by P. W. 4 that on their return from the marriage ceremony they found the dead body of Alavi on the road. The attempt to make Alavi alive and speaking must necessarily fail. The marriage party must have found Alavi dead or unable to talk and that accounts for their inability to bring water and help Alavi. It is physical impossibility to help the dead man and not a 'fear of fight' that drove them into their houses.
8. Another difficulty in believing P. W. 1's evidenceis the impossibility of having identified the accused. According to him he saw the accused attacking. Alavi froma distance of 52 yards and of removing him from adistance of 45 yards. The learned Judge puts the distanceat 42 yards evidently calculating it with reference to thepoint noted in the plan as the place where the witnesswas standing at the time. The spot was marked as pointed out by the Circle Inspector who questioned the wit-ness. The Supreme Court has repeatedly held that suchevidence is inadmissible in view of Section 162 of theCriminal Procedure Code.
The latest pronouncement on the matter is found in Tori Singh v. State of Uttar Pradesh reported in the lastest blue print edition, (AIR 1962 SC 399 at p. 401) His Lordship Justice Wanchoo observes :
'The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-Inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure for it is in effect nothing more than the Statement of the Sub-inspector has the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. We may in this connection refer to Bhagirathi Chowdhury v. Emperor, AIR 1926 Cal 550 where it was observed that placing of maps before the jury containing statements of witnesses or of information received by the investigating officer preparing the map
'from other persons was Improper, and that the investigating officer who made a map in a criminal case ought not to put anything more than what he had seen himself. The same view was expressed by the Calcutta High Court again in Ibra Akanda v. Emperor, AIR 1944 Cal 339 where it was held that any information derived from witnesses during police investigation, and recorded in the index to a map, must be proved by the witnesses concerned and not by the Investigating officer, and that it such information is sought to be proved by the evidence of the investigating officer, it would manifestly offend against Section 162 of the Code of Criminal Procedure'.
Even going by that distance the situation does not change. Modi (vide Modi's Medicial Jurisprudence, and Toxicology--13th Edition page 60) while dealing with the amount of illumination required, for identification observes.
'According to Tidy, the best known person cannot be recognised in the clearest moonlight beyond a distant of seventeen yards. Colonel Barry, I. M. S. is of opinion that at distances greater than 12 yards the stature or outline of the figure alone is available as a means of identification. To define the features even at a shorter distance is practically impossible by moonlight'.
Dr. Vincent in Legrand and Saule's 'Legal Medicine' says that :
'..... presuming the eyesight to be normal by moon-light one can recognise, when the moon is at the quarter, persons at a distance, of 21 ft., in bright, moonlight at from 23 to 33 ft; and at the very brighest period of the full moon, at a distance of from 33 to 36 ft. in tropical. countries the distances from 'for moon-light may be increased'.
Even making allowance for the increase in the distance, in tropical, countries, the distance of moonlight recognition cannot go from twelve yards or seventeen yards to 45 yards, and 52 yards as in this case. We are not fixing any general, standard applicable in all cases. But in the nature of this case and with due regard to the shadows, of the cashewnut. forest wherein the scene of stabbing is situated identification, of the accused at 3 distance of 45 and 52 yards does not appear to be possible. So even if P. W. 1 is speaking the truth when he said he saw two persons attaching the deceased and then removing him it is not possible, to accept his identification of those persons, as accused. 1 and 2. Though he would assert later that he actually saw the stabbing, he could only say at first that he saw the raising and lowering of hands, signs by means of which he inferred that accused 1 stabbed Alavi. twice. His evidence also discloses that he is not reluctant to improve upon his statements with a view to help the prosecution whenever there is an occasion for it. He is ready to say in court, that accused 2 pressed Alavi to the ground though he did not say so to the Circle. Inspector of Police. Alavi sustained five fatal injuries on the back and hence he had to be placed face downwards. Readily P. W. 1 who said nothing of the sort to the police says that Alavi was placed face downwards. The evidence of P. W. 1 does not impress us as reliable and we find it unsafe to sentence one man to the extreme penalty and another to life imprisonment relying on his evidence.
9. P. W. 2 is a school teacher who has his house at a distance of five furlongs from the scene of occurrence. He was in the company of P.W. 1 and others and gives evidence about seeing Alavi sitting injured and getting from Alavi a narration as to how he came to be injured. The version given by him is similar to that of P. W. 1. He swears it was to him that Aalvi made the request for water and to be taken to his house, and he would have the court believe that he left the place without caring to get the man a cup of drinking water from the nearby house of P. W. 1 due to fear, though he made himself bold to stop at the scene for about five minutes. He was comfortably sleeping when he was awakened at about 2 A. M. by the father of the deceased to whom he narrated what he saw. He does not give a consistent version about the statement alleged to have been made by Alavi. When examined in chief, he stated that Alavi sais that accused 1 and 2 pelted stones at him while he was coming from Cherode, chased him and caught him and stabbed him.
This would indicate that Alavi was stabbed by both the accused. When cross-examined he said that what Alavi told him was that the first accused stabbed him and accused 2 held him (a process which the accused are alleged to have repeated at the second place of stabbing as well). When the prosecution sought to clarify the matter in re-examination he said that the deceased told him that accused 1 and 2 pelted stones, chased and caught him. No stabbing is mentioned. When P. W. 9 went to him in the night the dying declaration underwent a further change. P. W. 9 says that what P. W. 2 told him was that Alavi told him that he was injured by accused 1 and 2. It is unsafe to rely on his evidence also.
10. P. W. 3 Kunhimoyi says that when he was resting in his house after meals, he heard the sound of two or three persons running along the foot-path one of whom cried 'Ikkakka' 'Ikkakka'. He recognised, the cry as that of Alavi. After a while he heard the cry 'Umma' 'Umma.' and after that he saw five or six persons going west. He went near the fence and, saw accused' 1 and 2 carrying a man from the place he had heard the cry and placing him on the foot-path near his house. He also saw accused 1 handing over a knife to accused 2 with instructions, to hide it. He went near and found Alavi dead. He never stirred out even when he heard the cry of women but slept comfortably and early next morning went for ploughing without telling anybody anything about what he saw. Though the defence did not care to question him about his activities before he laid himself down to sleep, P. W. 7 is definite that P. W. 3 was. also in their company when they saw Alavi sitting and groaning.
If P.W. 7's version is correct, P. W. 3 could not have heard the running sound of three persons or the cry 'Ikkakka' by Alavi. This cry of 'Ikkakka' which was not heard by P. W. 1 or by any one else is evidently introduced to make, out it was the accused (the brother of the deceased) that, was attacking him. No such inference is possible. Even if he was calling out to his brother it could as well be a call for help as in the case of 'Umma'. On the other hand if his brother was belabouring him he would naturally have shouted out 'Don't kill me Ikkakka' or something like that. His seeing the handing over of the dagger by accused 1 to accused 2 for secreting is the most unbelievable part of the story. To say that the first accused who was clever enough to give the first Information to the Village Munsiff that night itself in a dress that was not stained with blood, could not dispose of the weapon of offence himself is to say the least of it fantastic. We consider his evidence also as unreliable.
11. P. W. 4 corroborates the version of P. Ws. l and 2. We have already adverted to the significant admission made by him that when going in the company of P. Ws. 1 to 3 and 7 he saw the dead body of Alavi which would falsify the rest of his evidence. His conduct in leaving the place without caring to give his uncle a cup of drinking water or to ascertain who caused him injuries end in going comfortably to sleep after seeing him dead speaks volumes. Admittedly the accused had turned him and his mother out of the house and he had good reason to give evidence in the manner he did.
12. The oral dying declaration alleged to have been made by Alavi is another item of evidence relied upon by the prosecution. The evidence of P. Ws. 1 and 2 who speak about the said declaration has been found to be unacceptable and the probabilities are that when the witnesses met Alavi he was either actually dead or unable to talk. Even otherwise, when the dying declaration is oral, the exact words stated by the deceased to the witnesses are of the utmost importance and if witnesses improve upon their statements by varying their versions that evidence becomes unreliable. In Ram Nath v. State of Madhya Pradesh AIR 1953 SC 420 Justice Mahajan observed :
'Unless one is certain about the exact words uttered by the deceased, no reliance should be placed on verbal statements of witnesses and the oral declarations made by a deceased'.
Again in Khushal Rao v. State of Bombay AIR 1958 SC 22 the court was of the view that a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character stands on a much lower footing than a dying declaration which is recorded by a competent Magistrate and its truth and correctness should be tested with greater care land caution. In this case there is no consistent ver-sion as to what were the words used by the deceased. The alleged dying declaration has only to be eschewed.
13. Recovery of M. O. 1 dagger in pursuance of the confession of accused 2 is relied on by the prosecution as evidence against both the accused. It is not disputed that the confession, made by accused 2 is not admissible as against accused 1 under Section 27 of the Evidence Act. However it is argued for the prosecution that as the knife was found stained with human blood it proves that the second accused had an integral part to play in the attack on the deceased and in the light of the evidence of P. W. 3 that accused 1 handed over the knife to accused 2 and that of P. W. 4 that the dagger belongs to the first accused it is an incriminating item of evidence against accused I as well. We have already found that the story given out by P. W. 3 that he saw accused 1 handing over the knife to accused 2 with a direction to secrete It cannot be true.
The learned Judge lays great stress on the circumstance that P. W. 4 was not cross-examined when he identified M. O. 1 as belonging to Hie first accused. The accused had estranged the feelings of the witness by driving him and his mother out of the house and if he is also suspected to be the mudrerer of his uncle there is nothing strange in P. W. 4 coming forward to give evidence against him. As such, the failure of the inexperienced counsel who defended the accused to challenge the correctness of the evidence of P. W. 4 regarding the identification of the dagger will not justify any adverse inference. Further, even if the first accused's ownership of the dagger is taken to be established, so long as its recovery was effected on the information given by accused 2 it cannot connect the first accused with the crime as accused 2 could have come by the dagger in ever so many ways.
14. Before leaving this part of the case we wish to express our disapproval of the police recording a confession by accused 2 running to four or five pages incorporating most incriminating statements against a co-accused and getting it attested by witnesses and then making it invisible by a legal fiction of 'bracketing'. It is bound to seriously prejudice both the accused. The Legislature had a purpose in excluding from evidence a confession made to a police officer by an accused person and also a confession made while in the custody of the police except in the immediate presence of the Magistrate. Under Section 27 only that portion of the information which led to the recovery is made admissible. The Sub-Inspector says that he knew that accused 2 had the knife with him even before his arrest. Where then was the necessity to record such a nauseating confession about irrelevant matters?
In Karunakaran v. State, (1960) 2 Ker LR 247 one of us had the occasion to deprecate the practice of introducing wholesale confessions to the police under the guise of a recovery under Section 27. The observations made therein are pertinent to this case and some portions may be incorporated :
'The practice of attestation of confessional statementby witnesses is an objectionable one. It prejudices theaccused to safeguard whose interest the Legislature hasenacted Ss. 24 fo 26 of the Evidence Act. It has nolegal sanction behind it. There is no harm in recordingthe accused's statement in the first person at any greatlength in the case diary when the accused is arrested andquestioned and in the preamble to the recovery mahazarreference to the reasons leading to the recovery may bemade.
The whole thing appears to be an 'intentional whittling down' of the wholesome provisions of Ss. 25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional 'statement should be excluded. But it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketted portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure.'
15. The alleged motive based on Ext. P-1 petition filed by P. W. 1 against the first accused and his wife, resulting in an enquiry by the police does not appear to be strong enough to have promoted the accused to murder his brother in this brutal fashion. The first accused by his many acts of omission and commission had turned out to be a black-sheep of the family. His unwillingness to help his father and his desire to get the whole of the family properties had alienated the sympathies of the parents and brothers and sister. The wife of accused 1 also contributed her share of the proverbial daughter-in--law-mother-in-law struggle, Petitioning by the father against accused 1 and his wife might have fanned the flame. But it is strange why with all the motive against the father the younger brother should be killed by accused 1. Even if the evidence of P. W. 9 that it was the deceased who took an active part in filing the petition is accepted there is nothing to show that the accused came to know about it. Thus we find that there is no exasperating cause for the accused to commit such a premeditated and brutal murder of his brother. On the other hand there is oral and documentary evidence to prove that the deceased had many enemies in the locality including his divorced wife's relations.
16. The conduct of the accused does not support the prosecution case. Almost immediately after the occurrence we see the accused proceeding to the Village Munsiff and giving him the information about the death of his brother. The learned Judge treats the absence of accused 1 and 2 from their house for three days as absconding. Accused 2 was arrested by the police on 5-4-1961 at 2 P. M. and accused 1 at 1 P. M. Instances are not rare when rustics in our country even when they are absolutely innocent behave as guilty persons. Their absence from the house for three or four days in fear of the police cannot create any presumption of guilt.
17. There is intrinsic evidence in this case to indicate that the occurrence could not have taken place in the manner alleged by the prosecution. The nature, site and the number of the injuries do not bespeak a premeditated attack by two persons at two different places and at two times. The prosecution story as to how the deceased sustained the fifteen injuries (nine incised wounds, one lacerated injury and the rest abrasions) throw out a direct challenge to the credulity and intelligence of any court. The deceased was wearing an underwear only when he was first seen by the witnesses. His banian and shirt were found torn by stabs at the place. There is no knowing as to who stripped him of the banian and shirt before he was seen by the witnesses. A blood-stained towel was found at the scene and its ownership is not traced. The presence of the blood-stained jaggery packet at point J, marked in the plan only six feet from the dead body also requires an explanation, if all the stabbing was done elsewhere and the dead body was carried to the point H there is no explanation how the packet was found near the dead body, if it was a case of premeditated murder of one person by the two accused why should there be pelting of stones and chasing and then stabbing in two instalments.
There is also no reason why the first accused who was armed with a dagger could not make the victim dead by giving one or two effective stabs or stop his mouth so that no cry for help escaped from him. If the accused knew (and they must have known as they were waiting nearby) that Alavi and the party of P. Ws. 1 and 2 had talked and P.W.4 was sent by them to fetch his father, this killing of Alavi by an elaborate process of stabbing and carrying him from place to place allowing him to cry out 'Umma' 'Umma' ail along seems to be not the act of a person who after committing such a heinous crime was clever enough to have rushed to the Village Munsiff and lodged a First Information exculpating himself. It also looks strange why the accused who achieved their object in safety by stabbing Alavi in the uninhabited cashew forest should court ready recognition by carrying the body along the widely used foot-path in bright moon-light unless it be to give P. W. 3 a chance to see the last stage of the incident and the handing over of the knife by accused 1 to accused 2 for safe keeping. All things point to the conclusion that Alavi was found dead or almost dying by the witnesses on the foot-path and the rest of the story was re-constructed so as to fit in with the appearances at the place.
18. in short the prosecution has only bundled up some suspicious circumstances against the accused. Not an iota of legal evidence is let in to fix the guilt on the accused. The motive is inadequate and capable only if prompting the prosecution to make a false implication. There is an abundance of impossibilities in the case as put forward by the prosecution. The evidence brought against the accused is absolutely unconvincing and inherently improbable. There is no certainty either at the begining or at the end much less all along the way. Doubts and nothing but doubts assail us, however much the method of murder arouses our indignation. In the words of His Lordship Gajendragadkar, J., it is a typical case of 'might be true', but not one of 'must be true.' If there is an iota of reliable legal evidence the accused could not have cheated the gallows, but in the unsatisfactory nature of the prosecution evidence there is no other go but to acquit the accused giving them the benefit of doubt.
19. Before we part with the case we have to strike a note of warning against the practice of some of the Sessions Judges appointing raw and inexperienced juniors to defend the accused in capital cases. If however such inexperienced advocates alone are available to defend such unfortunate accused, the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from treading on dangerous grounds. In this case it is really unfortunate that the court has instead, freely made use of the defects resulting from the inexperience of the advocates to built up the case against the accused.
20. The appeals are allowed and the conviction and sentence entered against the accused by the learned Sessions Judge are set aside. They will be set at liberty forthwith if not wanted in other proceedings.