P. Narayana Pillai, J.
1. The appellant who is only 22 years old and who stood charged under Sections 302 and 394 of the Indian Penal Code was acquitted of the offence under Section 302, but convicted of the offence under Section 394 and sentenced to imprisonment for life. The incident took place after 7 P. M. on August 9, last year in the property of the appellant in Pulamanthol Village within the jurisdiction of the Kolathoor Police Station. There is a river there running from north to south. The houses of the appellant and the deceased in this case, Kathiyumma, are on the eastern bank of the river. Kathiyumma's house is about 102 metres to the south of the appellant's house. In between the two houses is another house and that belongs to P. W. 5, There are only small bunds to separate the properties where these houses are situated. At or about 4 P. M. on the date of occurrence Kathiyumma went to a property about four furlongs north-west of her residence. After collecting vegetables from there it was when she was returning home through the property of the appellant that she was murdered. With the dagger, M. O. 10, the appellant chopped off her ears and after taking the ornaments which she wore threw her into the river. The dead body was recovered the next day from the river by P. W. 10 and others who made a search for it. After recovering it the matter was reported to the Kolathoor Police Station at 8 P. M. on August 10, 1972. A case of suspicious death was then registered on the basis of it. During investigation it came out that it was appellant who committed the offences. He was arrested on August 11, 1972. After due investigation charge was laid before Court.
2. The appellant denied having had anything to do with the occurrence.
3. It is sufficiently proved in the case that Kathiyumma died. Pinnae of both her ears were seen chopped off. There was fracture of the hyoid bone. The Doctor who conducted autopsy was of the opinion that the cause of death was asphyxia due to drowning. He could not say whether the chopping off the pinnae of the ears was before or after the death.
4. There is no direct evidence to connect the appellant with the crime. The items of evidence relied upon by the prosecution to support the conviction are purely circumstantial. W. Ps. 2 and 3 are respectively son and grand-son of Kathiyumma. They spoke to Kathiyumma having left her house by 4 P. M. on the date of occurrence and her not having returned thereafter. P. W. 4 a neighbour spoke to Kathiyumma having returned from the property where she had gone with the vegetables she had collected from that property and passing along the lane from there to her house. P. W. 6 was taking bath at 7 P. M. on the western bank of the river. He spoke to having seen Kathiyumma going towards her house through the lane on the eastern bank of the river. P. W. 5 said he saw the appellant catching fish from the river at a place close to his house by 5 P. M. P. W. 7 deposed that when he was taking a bath he saw the appellant catching fish from the river and that he also saw Kathiyumma going south through the lane carrying a basket on her head at 7 P. M. He further spoke to Kathiyumma having got into the property of the appellant through the steps connecting that property with the river. None of these circumstances relied upon by the trial Judge is sufficient to connect the appellant with the crime. These circumstances are perfectly consistent with another person being the offender. It may as well be that by 7 P. M. that day Kathiyumma passed through the appellant's property for going to her house and yet the appellant may not be the person who committed the crime. Her dead body was seen only at 4 P. M. the next day. Death could have taken place at any time during the previous night. It is true that there were blood marks found on the property of the appellant. But then there are other persons also residing in the house there. The appellant's brothers and mother are living there. On the next day after the occurrence after 6 or 6-30 A. M. the appellant went to the shop of P. W. 8 and purchased a piece of soap from there saying that it was for washing his leg as he had a wound on the leg. According to P. W. 8 the appellant at that time asked him to give soap immediately as he had to leave the place soon. P. W. 8 admitted that he did not tell that to the police during investigation. He also did not say during investigation that he asked the appellant as to how there happened to be blood on his leg and that the appellant told him that he had sustained a wound there. It is unsafe to act on his evidence. The only other evidence to connect the appellant with the crime is his possession of certain ornaments alleged to be worn by Kathiyumma having had ornaments on her body before the occurrence. P. W. 2 said that she was wearing them for the last 30 years. The ornaments were, ear-rings, 12 'chuttus and two kathilas' on the right ear, 11 'chuttus' and two 'Kathilas' on the left ear and a necklace called 'chankelassu' around the neck. The prosecution case is that these ornaments were taken by the appellant on August 10, to P. W. 12, a jewellery merchant in Perintalamanna, and on the next day to P. W. 14, a jewellery merchant at Malappuram, for sale. P. Ws. 13 and 17 are respectively employees in the shops of P. Ws. 12 and 14. P. W. 12 purchased for Rs. 110 some of the ornaments which the appellant took to him and melted them. The remaining ornaments which were taken to P. W. 14 on the next day were melted by P. W. 17 and 50 paise was received by him as charges for melting the ornaments. The alleged ornaments in their original form are not now available. Instead the gold ingots recovered from P. W. 12 and the appellant are alone available now. They are M. Os. 8 and 12. Except the oral evidence of P. Ws. 12, 13, 14 and 17 there is nothing to show that the ornaments which the appellant is alleged to have taken to them were similar to those mentioned by P. W. 2 in his deposition before Court. P. W. 14 admitted that he had no gold control licence for conducting the jewellery business. Ordinarily if ornaments are melted or purchased in shops there would be records to evidence the same. No such record is forthcoming. Even with regard to the description of some of the ornaments there is discrepancy in the evidence. Although P. W. 2 said that 'kathila' had the shape of a cut bitter gourd P. W, 14 in cross-examination denied its shape being like that. No doubt in re-examination P. W. 7 said that it had the shape of a cut bitter gourd but that was the result of an afterthought. Assuming that the ornaments which the appellant took to P. Ws. 12 and 14 were ear-rings and necklace of the type mentioned by P. W. 2 in his deposition, even then they were ornaments usually worn by Muslim women of the place and the appellant has got a case that even otherwise he was in possession of such ornaments. Therefore besides there being no reliable evidence to show that it was identically the same ornaments which Kathiyumma wore before her death which were taken by the appellant to P. Ws. 12 and 14 for sale there is also the circumstance that even if similar ornaments had been taken by him to them they may have been ornaments which did not belong to Kathiyumma and which were in his possession. The circumstances relied upon by the prosecution are perfectly consistent with the innocence of the accused.
5. The conviction is under Section 394 of the I. P. C. The Doctor who conducted autopsy could not say whether the chopping off of the ears was before or after death. There is no charge under Section 404 of the I. P. C. for dishonest misappropriation of property possessed by deceased person at the time of his death. It has not been proved beyond reasonable doubt that the appellant is guilty of the offence for which he has been convicted. Therefore this appeal is allowed, his conviction and sentence are set aside and he is acquitted.
E.K. Moidu, J.
6. The reasons which weighed with the learned Sessions Judge to acquit the appellant of the offence of murder under Section 302, I. P. C. hold good in acquitting the appellant for the offence of robbery under Section 394, I. P. C. also. The ingredients of the offence of theft shall be present in the offence of robbery. Before theft can amount to robbery the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. The second ingredient necessary to constitute robbery is that his act must be in order to the committing of the theft or in committing theft in carrying away or attempting to carry away the property obtained by theft. The third ingredient is that the offender must voluntarily attempt to cause to any person hurt for that end in view. Nothing of that has been proved in this case. The evidence of P. W. 16, Assistant Surgeon, was that the chopping off of the ear of the victim might be before or after death. The definite case of the prosecution was, so far as it was revealed from the charge as well as from the evidence, that the ears of the victim were chopped off in order to commit theft. In the nature of the evidence adduced on behalf of the prosecution, especially that of P. W. 16, it could not be said that the ears of the victim had been chopped off before her death. In that case no conviction can be held under Section 394 of the I. P. C. because removal of ornaments from the body of the victim after causing her death cannot amount to robbery because robbery is theft by force and theft is taking away of movables out of the possession of a person. But removing ornaments from a dead body is not taking property out of the possession of a person. A dead body is not a person. So the prosecution case that the appellant removed the jewels from the body of the deceased before she was murdered could not be accepted and hence an offence under Section 394, I. P. C. could not be sustained.
7. However it is argued that the act of the accused amounted to dishonest misappropriation of property possessed by the deceased and therefore a conviction under Section 404, I. P. C. could be sustained. A decision reported in Balla Munshi Bhoi v. The State 0065/1958 : AIR1958MP192 was relied upon. In that case the accused was convicted for offence of murder on the basis of his confession that after committing the murder of the deceased he buried the dead body in that place and on the basis of that information dead body was recovered. The confession statement showed that the accused killed the victim first and thereafter removed his ornaments. So in that case it was held that the act of the accused amounted dishonest misappropriation of the property possessed of by the deceased and therefore it was an offence under Section 404, I. P. C. But charging an accused under Section 404, I. P. C. along with a charge of murder under Section 302, I. P. C. has been doubted by the Madras High Court in In re Singampillai Yerranna AIR 1941 Mad 306 : 42 Cri LJ 424. At page 309 it is pointed out as follows:
A somewhat unusual procedure was followed in this case - a case of murder - charging accused 1 and 2 with misappropriation of articles of the deceased (S. 404). In a case of murder, it is not a desirable procedure and one not within the experience of this Court. In any case, there is no evidence of misappropriation and these convictions are also set aside in the case of accused 1 and 2.
Anyway the question does not appear to be very material in this case as it is not established by the prosecution beyond doubt that the jewels recovered from the appellant as well as from P. W. 12, the gold merchant, were the identical jewels which were found worn by the deceased when she was alive on the date of the occurrence. The prosecution case that the appellant committed robbery or he misappropriated the gold ornaments worn by the deceased cannot be accepted. I agree that the conviction and sentence be set aside and that the appeal be allowed acquitting the appellant.