S. Velu Pillai, J.
1. This case has been laid before me under Sections 378 and 429 of the Code of Criminal Procedure, 1898, on a difference of opinion between the two learned Judges Anna Chandy, J. and Govinda Menon, J. who constituted the Division Bench which heard it in the first instance. Haneefa the appellant and Nabissa his deceased wife were mazdoors in a tea estate called the Sentinal Rock Tea Estate in South Wynad. The appel lant has been convicted by the Sessions Judge under Section 302 I. P. C. and sentenced to death for having caused the death of his wife by cutting her with a pruning knife, at about noon on the 19th January, 1965, in a paddy field, near a culvert situated between tea-fields or blocks, as they are called, Nos. 17 and 19 which arc all marked in the plan Ext. P--6.
2. The appellant and his wife with their child, then about three months old, were living with his parents in a room in one of the 'lines as they are called, in which the mazdoors and maistrics of the estate lived. One evening about a week before Nabissa died, there was an incident in the course of which the appellant gave her a healing. Erom the next day, she look up residence in another room in the same 'line', in which Pw. 7 Ather, a maistry of the estate, lived with his wife and five children. On the 19th noon, as alleged by the prosecution, while Nabissa was returning from the leafshed where she had been to for the break in the noon, to the tea-field for the afternoon plucking of tea bunds followed by Pw 1 Narayanan, Pw. '2 Pazhanivelu, Pw. 3 Lak-shmi, and others, and reached the culvert, the appellant who was corning in the opposite direction questioned her whether she would not return to him and then beat her and pushed her.
She fell into the paddy-field on the northern side of the culvert, when drawing his pruning knife M. O. 1, the appellant cut her several times as a result of which, she sustained about twenty-two incised injuries, of which injuries 1 to 3, as noted in the post-mortem certificate, which cut through the jugular vain. were necessarily fatal. On witnessing the cutting, Pws. 1 to 3 and others ran to the leaf-shed and informed Veerappa, the estate writer. Pw. 1 came back to the scene immediately with Veerappa, but only to see Nabissa lying dead and the appellant running away across the tea-field. Accompanied by Veerappa, Pw. 1 proceeded to Meppady police station, about eleven miles away, and lodged the first information Ext P--1 al about 4 p. m.; a case was registered. The Sub Inspector of Police who was away on duly was informed and he proceeded to the scene of occurrence and commenced the inquest over Nabissa's bodv at 6. 30 P. M. which concluded at about 9 30 P. M. The appellant voluntarily appeared at the police-station at about 7 P. M. with M. O. 1, and Pw. 9 the Head Constable in charge arrested him and seized the knife. The post-mortem examination of the body was hold on the forenoon of the next day by the msdl-cal officer, Pw. 4.
3. In his statement Ext. P--12 in the committal court, though the appellant denied that the witnesses were speaking the truth, he admitted having cut Nabissa; but his case was, that while he was going for collecting firewood, he saw Nabissa and Pw. 7 lying together on the ground, that on seeing him Pw. 7 ran away but he lost control of himself, and inflicted the cuts on her. In his statement before the Sessions Judge under Section 342, Crl. P. C. also, he adhered to the same version more or less, though he did not admit having actually cut her; be added however, that when he confronted her she told him that she loved Pw. 7 and he then lost his mental balance.
4. At the trial, Pws. 1 to 3 gave direct evidence of the occurrence in support of the case of the prosecution and believing them the learned Judge convicted the appellant. After the hearing before the Division Bench, while Anna Chandy, J. disbelieved their evidence, accepted the appellant's version as furnishing a reasonable explanation of his conduct and set aside the conviction and sentence, Govinda Menon. J. believed their evidence, rejected the theory of the appellant as improbable and affirmed the conviction and sentence.
5. The summary of their evidence has been fully set out in the judgment of both the learned Judges and I do not think it necessary. to do so; certain broad features have however to be stated. According to Pw. 1 to 3 they were also working in the same tea-field on that day as Nabissa. though Pows. 1 and 2 referred to it as block No. 14 and Pw. 3 mentioned as block No 17. It was customary for the mazdoors engaged in the plucking of tea buds to have their plucking in the fore-noon weighed at the leafshed in the noon every day be-foiv commencing the afternoon plucking. In the interval which lasts till 1 or 1.30 P. M., the witnesses being not quite accurate as to the exact hour, except that it was of one hour, the mazdoors have their meals, the majority of them in the leafshed itself and the others in their rooms. The evidence of Pws. 1 to 3 was, that they and Nabissa were returning to the block in which they were working along the road proceeding from the leafshed and cutting across blocks Nos. 19 and 17. Nabissa being ahead, followed by Pw. 3, who was followed by Pw 1, and who in his turn was followed by Pw. 2. It was then that the appellant coming opposite chanced to meet Nabissa and cut her, after she fell into the paddy field after being beate.fi and pushed into it as staled.
6. One Velayudha Panicker, Pw. 5, a maistry who was living in one of the rooms In the same line, testified to the incident about nine days before, when the appellant beat Nabissa with a stick; on the next day she did not return to the appellant's room in the evening but look up residence with Pw. 7, on the fourth day when she came, the appellants mother did not allow her to take her child and an altercation ensued. Pw. 6 one Aylthru also testified to the healing of Nabissa by the appellant and to her taking up residence with Pw. 7. Pw. 7 said that Nabissa came to him one evening and sought shelter in his room and he agreed at the insistence of his wife.
7. The discrepancies in the testimony of Pws. 1 to 3 and the probabilities and circumstances have been enumerated and dealt with by Anna Chandy, J,, at great length. They related to matters such as, the exact hour of the occurrence, the period of the noonday break, the existence or otherwise of a bell or siren in the estate to announce the interval, the number of the tea-field or block in which Pws. 1 to 8 and Nablssa were working that day, the possibility of inflicting injuries on Nabissa which were all on the front part of her body none of them being on the back, if as Pw. 3 testified she fell on her face and was cut, the exact words which passed between the appellani and Nabissa when they met and which were uttered by her as she lay prostrate while being cut and the existence of short-cuts for going to the workspots. Pws. 1 to 3 were also considered by the learned Judge to be partisans of Pw. 7, as being interested in saving his honour and his fair name and therefore of his employer, because if, as stated by the appellant, Pw. 7 was found in a compromising situation with Nabissa, it was a matter of disgrace to them both.
The incident related by Pws. 5 and 6 which led to Nabissa's taking up separate residence with Pw. 7 was of course common ground between the prosecution and the defence. The learned Judge considered Pw. 7 to be the villain of the piece and Veerappa to be a material witness, the failure to examine whom constituted a defect. Speaking with respect, I am unable to agree with the learned Judge on these criticisms. The discrepancies in the sworn testimony of the witnesses of the nature discussed by the learned Judge are not, In my opinion, material discrepancies. To quote a passage from the judgment in Emperor v. Muhammad Khan, AIR 1934 Lab 710:
'It is common experience that discrepancies do occur even in the slatemenls of perfectly honest witnesses, which arc really due to differences in individual faculties with regard to observation, recollection and recital of details and unless there is any good ground to think that they are due to a deliberate, attempt to suppress or depart from the truth it is unfair to discard the direct testimony of witnesses merely on account of such discrepancies, when there is general agreement as to the material circumstances.'
I find great difficulty in imagining that Pws. 1 to 3 had any interest or motive in shielding Pw. 7, if he misconducted himself on that occasion, as stated by the appellant. I also find it difficult to accept the theory us reasonable that Nabissa leaving her husband and her tender child for whatever reason, took a fancy for Pw. 7 aged 49 who lived with his wife and five children and that she and Pw. 7 chose the foot of a banian tree near that culvert on the road, at that time of the day for their nefarious purpose. The attendance at the leafshed for weighment was. according to Pw. 1, about a thousand. The only feature against Pw, 7 is the failure of the prosecution to prove conclusively, that he wrote to Nabissa's father, as slated by him, soon after sha separated herself from the appellant and took up residence in her room. There is no reason to infer that Pw. 7 was avoiding the scene when the inquest was held, from the mere fact that he did not attest it; there was no difficulty in identification of the body of Nabissa, over which Pw, 2 whs keeping watch until the police Inspector arrived. ' As for shortcuts, the distance from the leafshed to tile culvert was not very much, about three furlongs, and no short-cut from the shed to the culvert or to the block in which they were working was suggested to exist. In my opinion. Veerappa was not a witness material to the prosecution.
8. There is also no reason to doubt, that the appellant came to the police-station only at about 7 P. M. on that day and that Pw. 1 came there earlier at 4 P. M. and returned to the estate in time for his statement to be recorded at the inquest before 9.30 P. M. As for the appellant, revolving in his mind what he should state and how he should state it is mil to he supposed that he also tike Pw. 1, proceeded posthaste to the police-station, although as stated in the remand application he was 'shadowed', and not 'escorted' by some men of the estate, as staled in the judgment. If a point was made about it, an examination of the case diary would have revealed, as observed iu the judgment of Govinda Menon, that the Circle Inspector of Police did question the appellant in the lock-up Unit very night itself on his return from the scene, and note its purport.
9. But I do agree, that the omission of the police officer to forward copies of the case diary entries so far made along with the application for remand, instead of a summary or purport thereof is a violation of the provisions of Section 167(1), Crl. P. C. I also agree, that the fact that the inqucsl report Ext. P--11 and the seizure list Ext. P - 5 relating to M. O. 1, which purport to have been despatched to the Munsiff-Magistrate, Kalpelta on the 19th and the 22nd respectively, reached the latter's office only on the 25th January demanded an explanation by the prosecution. As observed by Anna Chandy, J. the order of the Munsiff-Magistrate of the 20th January, simply direct-ing the appellant's production before him on the next day and his order of the 21st remanding the appellant without adverting to the non-compliance with the provisions of Section 167(1) were not regular.
The police officers who were examined, might well have been cross-examined on the irregularities which concerned them and the prosecution also might well have offered its explanation on its own. Non-compliance with Section 167(1) may in proper cases and according to circumstances lead to an inference, that the evidence adduced by the prosecution before court is tainted. But, as observed by the learned Judge, it is not in every case of such irregularity that this inference is to be drawn. In the present case, I do not feel persuaded, that the evidence adduced can be discarded on this simple ground. After all, Pw. 1 gave the statement Ext. P---1 shortly after the occurrence. The police officer who recorded it forwarded it immediately not only to the Sub-Inspector of Police who was on duty elsewhere but also to the Munsiff-Magistrate, Kalpetta, whose office received it, as seen from the date stamp, on the 20th January before 9 A. M.
10. So far 1 have considered the evidence in support of the prosecution in the light of the comments made by Anna Chandy. J. As laid down in Aher Raja Khima v. State of Saurashtra, AIR 19A6 SC 217, relied on by the learned Judge.
'.....there are two important factors in every criminal trial that weigh heavily in favour of an accused person: one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false.'
As I have indicated I do not feel very much impressed that the explanation offered by the appellant can be accepted ex facie as a reasonable explanation. But this feature in no way absolves the prosecution of its duty of proving to the hilt, the guilt of the appellant. The appellant is not to be placed in a worse position for having attempted an explanation which cannot stand scrutiny, than for having attempted none. The question still remains whether the prosecution version of the occurrence as disclosed by Pws. I to 3, Pw 1 being corroborated by Exl P--1, can be acted upon. If the defects discussed above were all in the case, I would have had little difficulty in reaching the same conclusion as Govinda Menon. J. Bul I am confronted with one inconsistency in the case of the prosecution or discrepancy in the evidence, which I tcel cannot be regarded as immaterial and which has been exercising my mind considerably on the bearing it has on the testimony of Pws 1 to 3 I shall explain presently.
The theory which forms the basis of the direct evidence is that Nabissa was working on that day with Pws 1 to 3 in the sump block, that she accompanied them in the noon to the leafshed with her pluckings for weighing, that she had her lunch, whatever il was, at the shed, that all of them were returning together Nabissa walking ahead when she was struck down and killed by the appellant and that Pws 1 to 3 witnessed the occurrence. If on the other hand Nabissa did not have her lunch at all that noon, it is a circumstance which not only contradicted oral testimony that she did have it, but one which raises a vital question which the prosecution has to meet, why she did not have it, when presumably she had her meals in the morning only, and had still a few hours of strenuous work before her in the afternoon The difficulty has arisen because Pw. 4 has noted 'stomach is empty' in Ext. P--2, tha post-mortem certificate. If either the oral testimony that Nabissa had her lunch that noon or the entry in Ext. P-- 2, is vague or inconclusive, there can be no case of discrepancy let alone material discrepancy, or of contradiction or of inconsistency. The testimony of the witnesses may therefore be examined. Pw. 8 said in chief-examination. (Reproduction in regional language is omitted.)
Nabissa also had her meals with Pw. 8 at the leafshed. Pw. 7 said, that he and his wife never used to return to his room for their noon-day meals, that those who came to the shed used to have their pluckings weighed and to return for work as and when they take their conjee, that in his case his thirteen year old daughter used to prepare meals, that on that day both his wife and Nabissa brought their meals from the room and took it in the leafshed. This confirms the evidence of Pw. 8 that Nabissa had her food at the leafshed. Pw. 1 was not questioned about Nabissa's having lunch that noon but he said that he, like others had brought rice with him and deposited it in the leafshed in the morning before going for work and that of about thousand maz-doors who attended the leafshed for weighing the majority used to bring their meals with them to the leafshed. This evidence corroborates that of Pws. 3 and 7. Pw. 2 had only tea on that noon and Pw. 5 said on this point that soon after their midday meals, the mazdoors return to their respective blocks. On this resume of the evidence, I do not share the view of Govinda Menon. J., that 'it cannot be stated that fhe witnesses had stated that the deceased had taken her food on that day'.
11. The inconsistency or contradiction in Ext P--2 with the rest of the evidence was, as observed by Anna Chandy, J., missed by all concerned in the lower court and discovered only by counsel briefed by the State to defend the appellant in this Court. In these circumstances, I considei the desirability of recalling Pw. 4 and examining him touching Ext. P---2 particularly in relation to the entry in it with reference to the stomach. I also thought of availing myself of the opportunity to examine a competent Civil Surgeon as a court witness. After hearing learned prosecutor and learned counsel for the appellant, as to mv jurisdiction to do so in a proceeding under Sections 378 and 429, I recalled Pw. 4 and ordered summons to issue to Dr. S. Vasava Menon, the District Medical Officer. Ernakulam District Hospital, who is in the grade of a civil surgeon. They were present today and have been examined in the presence of the appellant. Pw. 4 testified in terms of Exl. P--2, that at the time of the post-mortem examination, the stomach was empty.
Questioned aboul it, he said he dissected the stomach and noticed only about two drachmas of fluid within, which judging from colour, might be tea. If so, he was not able to explain satisfactorily why he did not state in Ext. P--2. If as a matter of fact, he und only this quantity, as Dr. Vasava Menon stated, it must tn all probability he the collection of gastric juices before death. The inference mat it was tea has no basis. His answers generally as to the period for the stomach to empty its contents in different eases were not satisfactory or convincing. He is a licentiate of the Royapuram Medical School and I am not persuaded, that his opinion on such matters can be relied upon. His sworn testimony that he dissected the stomach, to note what is contained, and found it empty, has to be accepted in the absence of adequate materials to the contrary; the sworn testimony of the witnesses that Nabissa had her lunch is not enough. After all it is that sworn testimony that is being tested. I have therefore to hold that at the time of the post-mortem examination, the stomach of the deceased was empty.
12. How this is reconcilable with the direct evidence adduced and the theory of the prosecution, is the problem in the case which has vexed me most. Oovlnda Menon, J. considered, that even after death, digestion may continue for a time, but I cannot bring myself to hold that such digestion can take place to such an extent as to eliminate all traces in in the stomach of food which Nabissa bad taken fust a few minutes before death. In Taylor's Principles and Practice of Medical Jurisprudence, Volume T, 1956 edition page 54 the learned author says:
'The fact that several clays have elapsed since death will not prevent the discovery of food in the stomach, provided it had been taken within one or two hours before death, since the digestion of food does not appear to go on to any considerable extent after death.'
Dr. Vasava Menon also is of the opinion that post-mortem digestion can continue for about a few minutes only after death, when the juices and enzymes secreted by the stomach before death, would have ceased to have chemical action.
13. The evidence of the witnesses is not clear as to what sort of a meal Nabissa look on that occasion. Pw. 7 testified in terms of conjee and meals (. . ) and Pw, 3 in terms of meals ( .. ). As for Pw. 1, he and others carried and deposited at the leafshcd rice meal (....) from their rooms. Whatever doubt may arise as to the nature of the meal has to be resolved in favour of the appellant. It is not reasonable to think, that Nabissa had taken only water or tea at that hour or for that matter conjee water bereft of all rice grains; in that case she need not have carried her meals all the way from the room in the morning as Pw. 7 has sworn. On the evidence of Pw 7 it has to be held that Nabissa took conjee meal, lhat is, with rice in substantial quantity, as is well-known in this part of the country. The evidence of Pws. B and 7 is clear, that soon after meals, following weighment of the fea buds at the leafshed, the mazdoors used to depart for the workspot. There is no reason to think that Nabissa or Pws. 1 to 3 would have lost much lime at the leafshed after meals. In other words, death came to her, according to the theory of the prosecution, within a few minutes of her last meal, in any case, not later than half-an-hour making all allowances.
The evidence of Dr. Vasava Menon is quite clear, that in the case of conjee with rice to which sonic salt is added to taste as distinguished from conjee water the stomach does not empty itself in less than two hours. When death lakes place in such circumstances shortly after a meal, it is not reasonable to hold that nothing will be found in the stomach. If this is so, direct evidence that Pws. 1 to 3 were together in the company of Nabissa at the leafshed during the interval and proceeded together to the workspot, stands contradicted and falsified by the medical evidence. The whole occurrence then bears a different complexion. The case had not been investigated with an eye on this part of the medical evi dence. Anna Chandy, J. laid very great stress on this discrepancy or contradiction in the evidence and rightly in my opinion, if 1 say so with respect.
14. A somewhat similar case is quoted by Taylor on Principles and Practice of Medical Jurisprudence, llth edition. Volume 1 at page 238 thus:
''In R. v. Spicer, the falsehood of one part of the prisoner's defence was made evident by an examination of the deceased's stomach. The deceased was found dead at the fool of a stair. The prisoner slated that after he and his wife had had dinner he heard a fall. The woman had died instantaneously and the fall was heard by neighbours at or near the dinner-hour. The stomach contained no trace of food. It was therefore clear that this part of the prisoner's story was untrue.'
The present case differs from the cn.se cited, in that medical evidence is here used to test the veracity of the theory of the prosecution; but that is a more rigorous lest than in the case of the theory of a person accused of an offence. On this sole ground the direct evidence on which the guilt of the appellant depends bus to be rejected. If so the occurrence may have taken place in any other form
15. Speaking with respect, I do not share the view of Govinda Menon, J. that this is a case in which the appellant has relied on a general or special exception in the Indian Penal Code, the onus of proving winch may be laid on him. It seems to me, lhat this is a case in which the appellant has asserted, that the testimony of the witnesses is false and that the occurrence did not lake place in the manner alleged by the prosecution. No burden of proof can be laid on the appellant.
16. For the reason slated, I am constrained to hold, that the guilt of the appellant has not been established by acceptable evidence. I therefore agree with Anna Chandy, J. that conviction of the appellant and the sentence imposed on him, have to be set aside. Thecase will he placed before the Division Bench.
Following this opinion of the Third Judge,the conviction and sentence passed against theaccused was set aside and he was acquitted.